The Government’s Independent Review of the Human Rights Act Contents

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5The right to an effective remedy: Article 13 ECHR

Introduction

Article 13 ECHR: Right to an effective remedy Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

138.Article 13 ECHR requires the UK to provide an “effective remedy” before a “national authority” for any person whose rights under the ECHR have been violated. Whilst that doesn’t necessarily require that the ECHR is incorporated into domestic law, it is worth noting that all ECHR signatory States have, now, done so.

139.Since the entry into force of the HRA, which incorporated the ECHR into the UK’s domestic law, anyone can access an effective remedy for a breach of ECHR rights in the UK.123 This has been done principally through the operation of section 7 HRA which entitles “a person who claims that a public authority has acted (or proposes to act) in a way which” is incompatible with an ECHR right to bring proceedings in the appropriate court or tribunal, or to rely on the ECHR rights in any other legal proceedings.

140.Prior to the HRA, enforcement of human rights in the UK was more piece-meal and relied on discreet subject-specific mechanisms for those seeking to have an effective remedy. For example, one might rely on civil damages in a defamation case; police investigations for compliance with Article 2 ECHR procedural obligations; or perhaps reviews by ad hoc or administrative review boards with varying degrees of independence and powers in order to determine many other rights.

141.Some of these pre-1998 mechanisms met the requirements of Article 13 ECHR that people whose human rights had been violated should have an effective remedy. Other mechanisms were either not available or were insufficient—for example if they were not sufficiently independent or if they could not make legally binding decisions. Therefore, prior to the HRA the right to an effective remedy under Article 13 ECHR was not comprehensively given effect in the UK and compliance was variable depending on the underlying subject-matter.

The right to an effective remedy as a core part of the principle of subsidiarity

142.Under Article 1 ECHR, the UK accepted a legally binding obligation to “secure to everyone within [its] jurisdiction the rights and freedoms defined in Section I of [the] Convention”.

143.Under the ECHR system, national authorities have the primary responsibility for implementing and enforcing the rights and freedoms guaranteed by the ECHR. Recourse to the ECtHR in Strasbourg is thus subsidiary to national systems safeguarding human rights. This system—whereby the State has primary responsibility to protect and enforce human rights domestically—is reflected in Article 13 ECHR, under which the UK has undertaken to provide anyone whose rights have been violated with “an effective remedy” for a breach of a Convention right.124

144.Article 13 ECHR thus reflects the States’ obligation to protect human rights first and foremost within their own legal system, and establishes an additional guarantee for an individual in order to ensure that he or she effectively enjoys those rights. If Article 13 ECHR is not properly given effect to in a State, as was arguably the case for some matters in the UK prior to the HRA, individuals will be forced to refer complaints to the ECtHR in Strasbourg in the absence of any adequate means of enforcing their human rights in the UK.

What does Article 13 ECHR require of a State’s domestic legal system?

145.Article 13 ECHR requires a domestic “effective remedy” before a competent “national authority” affording the possibility of dealing with the substance of an arguable complaint under the ECHR and of granting appropriate relief. However, States have a margin of appreciation in conforming with their obligations under this provision.125

146.It is clear from the ECtHR’s case law that there are many ways in which a State can provide an ‘effective remedy’. Moreover, Article 13 ECHR does not require any particular form of remedy, given the margin of appreciation afforded to Contracting States. Nor does Article 13 ECHR go so far as to require the incorporation of the Convention in domestic law.126 That said, all States bound by the ECHR have now incorporated the Convention into their domestic legal order. It is therefore arguable that state practice has developed such that some form of incorporation sufficient to ensure the effectiveness of the right to an effective remedy is now expected. It is also noteworthy that much of the caselaw relating to Article 13 ECHR concerns cases coming from the UK prior to the entry into force of the HRA, in part because of the variable compliance with Article 13 ECHR in the absence of the HRA.

147.Article 13 ECHR requires that where an individual plausibly considers themselves to have been prejudiced by a measure allegedly in breach of the ECHR, he should have a remedy before a “national authority” in order both to have his claim decided and, if appropriate, to obtain redress.127 The “national authority” need not always be a judicial body, but in general judicial remedies provide strong guarantees of independence and enforceability in line with the requirements of Article 13 ECHR.128 In certain circumstances, however, the national authority could be a quasi-judicial body such as an ombudsman,129 an administrative authority such as a government minister,130 or a political authority such as a parliamentary commission.131 Whatever the form of the body, it must still be effective and must normally have the power to hand down a legally-binding (not merely advisory) decision. This was the subject of a number of cases against the UK prior to the HRA.

What remedy is “effective”?

148.To be effective, the remedy must be sufficient, accessible, and adequate, as well as being capable of directly remedying the impugned situation. The process must also be fair, which encompasses the equality of arms (granting the different parties involved an equal opportunity to make their case), as a constitutive element of an effective remedy. Moreover, the obligation on States under Article 13 ECHR includes a duty to ensure that the competent authorities enforce and implement remedies when granted, in line with the principle of the rule of law.

149.Judicial review is capable of providing an effective remedy, particularly where the domestic courts have been able to review the “reasonableness” of a decision, applying the same tests and law that the ECtHR would apply.132 However, judicial review will not always provide an effective remedy, for example if the court’s powers of judicial review are insufficient (e.g. if they do not consider the relevant ECHR standards in assessing compliance with human rights, or if their remedial powers are so limited that they are incapable of providing an effective remedy to a breach of human rights).133

Conclusions

150.The ability to enforce Convention rights is crucial to the protection of human rights. The HRA is the principal way in which the UK both secures to everyone within its jurisdiction the Convention rights (Article 1 ECHR)–and how it enables them to be enforced so that there is an “effective remedy” in case of a breach of Convention rights (Article 13 ECHR).

151.Any change to the HRA, particularly any change that makes it more difficult for domestic courts to remedy human rights violations brought before them—or even effectively prevents courts from hearing certain cases—risks weakening the UK’s ability to comply with its obligations under Articles 1 and 13 ECHR (as well as any related substantive rights).

152.Any efforts to exclude or limit certain subject-matters or categories of people from the scope of the HRA would risk putting the UK in breach of its obligations under Article 13 ECHR, as well as being a retrograde step for compliance with human rights and the rule of law in the UK. Moreover, any effort to limit the way that individuals can access effective remedies or enforce their rights under the HRA would risk creating gaps in individuals’ ability to enforce their human rights and to obtain an effective remedy, which again would risk placing the UK in breach of its duty under Article 13 ECHR to provide any person whose rights have been violated with an effective remedy at the national level.

153.Moreover, if some categories of people cannot seek to enforce their human rights before UK courts, we would not have the benefit of the UK Courts having first carefully considered the application of the relevant domestic laws and practices to the given case–and analysing the human rights compatibility of those laws in light of their in-depth understanding of how those laws work. As a result, we would likely see an increase in the numbers of cases needing to be litigated in Strasbourg, and an increase (as was seen prior to the HRA) in the number of UK cases raising issues around the UK’s non-compliance with the right to an effective remedy for a breach of human rights.

154.The right to an effective remedy under Article 13 ECHR is a theme that keeps recurring in this work, because any amendments to the HRA risk affecting—or even undermining—the right of people in the UK to an effective remedy for violations of human rights. We therefore come back to this theme in the following chapters.