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1. What makes a remedy ‘effective’ under Article 13?
There must be a body capable of hearing an arguable claim of a breach of Convention rights that is independent, which follows a fair procedure, which can deal with all the issues of fact and law that the alleged breach brings up and which can make orders which are effective in the sense of having a practical outcome which remedies the breach (e.g. the release of a prisoner or compensation).
2. Why might the Ombudsman, by herself, not be able to provide an effective remedy for human rights breaches?
The Ombudsman investigates, reports and makes recommendations. Mere recommendations may be insufficient in circumstances where, for example, the Convention requires punishment or it places the state under a duty to compensate.
3. Explain the two ways in which, under section 7, a person may allege their human rights have been breached by a public authority.
First, by bringing a case (e.g. a judicial review) which is based on the alleged breach and which seeks directly to enforce it; secondly, by using alleged breaches in other procedural contexts such as a defence to a criminal charge or to a claim of a breach of some other legal obligation of some kind.
4. What are the rules under which a person can obtain ‘standing’ to bring a human rights case under section 7 HRA?
The HRA refers to Article 34 ECHR. Under this test the person must be a “victim” of the breach and this means they have been directly affected by the alleged breach. This provision has been broadly interpreted by the ECtHR (e.g. there is no need to demonstrate that an impugned measure has been used against them so long as they are of a group against whom it could be used) and also inclusively to include people such as close relatives if it is necessary to ensure respect for human rights. Of course the other rules relating to admissibility must also be fulfilled.
5. What are the general principles governing a court’s choice of remedies under the HRA?
Remedies are discretionary. UK courts can award remedies that are within their jurisdiction and which they consider to be “just and appropriate” in the circumstances of the case. This can include a financial penalty (“just satisfaction”).
6. When might a court choose to award damages (just satisfaction) for a breach of section 6 HRA?
If a financial penalty, like damages, is just and appropriate. Pecuniary and non-pecuniary damages are allowed. The UK court, under the HRA, must follow the principles of the ECtHR concerning “just satisfaction”. These tend to be less generous than might be available in a tort action and more “broad brush”, less carefully calibrated against particular losses.