DAMAGE LIMITATION: THE COURTS AND HUMAN RIGHTS ACT DAMAGES

By Richard Clayton QC

It is sometimes thought that the only appropriate remedy for a human rights violation is a declaration.   However, the remedial power to award damages plays an important role in domestic human rights instruments like the American Bill of Rights, the New Zealand Bill of Rights Act, the Canadian Charter of Rights and the South African Constitution Act.  It is also a prominent feature of international human rights law: the International Covenant on Civil and Political Rights creates an enforceable right to compensation for anyone who has been unlawfully arrested, detained or convicted; the Inter-American Court of Human Rights has awarded damages under the American Convention on Human Rights on several occasions; and the African Commission has decided that it can, in principle, make an award of compensation under African Charter on Human and People’s Rights. The European Court of Human Rights (ECtHR) has made numerous awards of just satisfaction under Article 41 of the Convention; and Article 41 has been carried into effect by the Human Rights Act (HRA).  The HRA therefore marks a radical departure in English public law since maladministration by public bodies does not entitle the injured party to compensation.

However, I shall argue that the approach taken by the English courts to date has been disappointing.  Claims for HRA damages has been considered in very few cases.  The general principles formulated by the Court of Appeal in Anufrijeva v Southwark LBC and by the House of Lords in R(Greenfield) v Secretary of State for the Home Office, are more restrictive than the terms of the Act itself would mandate.   As a result, it is unlikely that HRA damages will significantly add to the effective protection of human rights.

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