Chapter 5 Guidance on answering the exam questions

1. The BBC is intending to produce a programme about the activities of the Security Services. The Home Secretary, acting under powers in the Communications Act 2003, has announced she will ban the programme. The BBC thinks it would be a clear breach of their rights under Article 10 (free expression)

Assuming that the BBC’s case under Article 10 is strong, advise the BBC on whether it could bring a case against the Home Secretary under the HRA (you are not required to consider the substance of the Article 10 issue).

• This is a difficult case involving “standing” to bring a case under the HRA.
• You should outline the general rules. Refer, in particular, to Article 34 (which identifies a “victim” and Article 35 which gives the rules on admissibility.
• Referring to Article 34 the question is whether the BBC is a “non-governmental” body or whether its link to the state, its “public” nature, renders it incapable of asserting human rights.
• You could refer to McKay & BBC Scotland v UK in which the ECtHR (accepting a concession of the UK government) agreed that BBC Scotland could bring a case against the UK government on an Article 10 case. The Court follows Radio France v France which is a case brought by the national broadcaster. The case was admissible because, although the organisation was running a public service its legal framework gave it great independence, equivalent to a private broadcaster and so it was not under government control (paragraph 26).
• On this basis you might conclude that the BBC could bring a Human Rights Act case.

2. The ECtHR makes financial awards in ‘just satisfaction’ on the basis of the overall equity of the case. What factors are taken into account by the Court? How are these adapted by UK courts for the purposes of the HRA?

• This is a question which requires you to disclose knowledge and understanding of the general principles on which the ECtHR, and the UK courts under the HRA, award damages or “just satisfaction”. It would be helpful to have one or two examples to illustrate amount or “quantum”.
• The ECtHR awards just satisfaction on the basis of Article 41. Note in particular that this presumes that the states have primary responsibility for compensating victims but the Court can award just satisfaction if the state has failed to compensate.
• The ECtHR has discretion and has developed various principles: the basic principle is to seek to restore so far as possible the person to their position prior to the violation.
• Nevertheless, the Court is also aware that it is a human rights court and so it will also consider whether the finding of a violation is sufficient (so that a financial penalty is unnecessary or unjustified).
• If this is so, the Court is also concerned to ensure that, if a financial penalty is justified, compensation will be only in respect of the harm directly caused by the violation.
• The ECtHR makes financial awards both for pecuniary losses (which reflect actual losses and can be enormous – nearly EUR 2 Billion in Yukos v Russia) and non-pecuniary losses (e.g. pain and suffering or loss of dignity) and can be quite low and only roughly linked to any actual losses.
• The ECtHR also makes awards for costs and expenses.
• Under s. 8 HRA, UK courts may award damages on the same principles as the ECtHR under Article 41. The principles have been followed in cases such as Greenfield v SSHD and the case law makes it clear that damages under HRA (at least non-pecuniary damages) are likely to be assessed somewhat lower than what would emerge from a Tort law analysis.
• In conclusion you could relate your discussion to wider arguments about the effectiveness of the HRA, the mirror principle (discussed in Chapter 4) and whether there is a case (e.g. under a “British Bill of Rights”) for a more “generous” approach to compensating those who have suffered from a breach of Convention rights.