The central argument of this book is that a “vindicatory”, tort-based approach ought to be taken to claims for violation of a human right. This applies not only to the decision whether to award damages, but also to assessment of quantum, and to the kinds of damages available. The vindicatory torts, or torts actionable per se, include trespass to land, false imprisonment, battery and defamation. Such an approach accords with the underlying function of human rights law, which is to protect and vindicate fundamental individual rights; it provides a sound basis for a rational, principled and coherent law of human rights damages; and it maintains the coherence of English law. Varuhas stresses the distinction between torts actionable per se, which perform primarily a protective, vindicatory function (whether or not additional damages are awarded to compensate for loss or damage), and torts such as negligence where awards of damages perform primarily a compensatory function. While recognising that the law protects human rights by forms of specific relief, such as injunctions and mandatory orders, Varuhas argues that the imposition of damages liability has long been the law's principal mechanism of protection.
The book describes the law as it is but it is primarily normative, describing the law as it ought to be. Cases of high authority distinguish and distance the approach to damages under the Human Rights Act 1998 from damages at common law, and adopt more restrictive approaches than at common law. Varuhas argues that they were wrongly decided. They are mainly detainees’ claims for delays in hearing unsuccessful applications under Articles 5(4) and 6, including Anufrijeva v Southwark L.B.C. [2003] EWCA Civ 1406; [2004] Q.B. 1124; R. (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14; [2005] 1 W.L.R. 673; and R. (Faulkner) v Secretary of State for Justice [2013] UKSC 47; [2013] 2 A.C. 254. They “mirror”, or align the approach to such damages to, the approach of the European Court of Human Rights (ECtHR) to monetary compensation, under Article 41 of the European Convention of Human Rights. But Varuhas argues that neither section 8 of the Human Rights Act (on judicial remedies), nor any rule from the ECtHR, requires such an approach. On the contrary, such an approach violates the Convention. The UK courts fail to give to claimants the effective remedy required by Article 13. Moreover Parliament, through the Human Rights Act, deliberately expanded the range of interests to be afforded legal protection through damages awards. To restrict damages liability to cases where such liability arose prior to the Human Rights Act is to frustrate the policy of the Act.
The background to the Human Rights Act and to the arguments in this book should be better known to the legal profession than it seems to be. The Supreme Court has had to repeat, in a series of judgments, that the Act does not supersede the protection of human rights under the common law or statute, nor create a discrete body of law based on the judgments of the ECtHR. Human rights continue to be protected by our domestic law, and our law must be interpreted and developed in accordance with the Human Rights Act when appropriate.
In chs. 2 and 3 (Part 1 of the book) Varuhas, too, explains the role of the torts actionable per se in the protection of human rights, citing from both Blackstone and Dicey to explain their constitutional nature. In this exposition, he sets out the common ground between the argument in this book and the judgments that he criticises. In ch. 3, he notes the contrast between the two approaches. Within the vindicatory torts damages are awarded as of course. But under the Human Rights Act section 8(3) the remedy is discretionary: “No award of damages is to be made unless, taking account of all the circumstances of the case … the court is satisfied that the award is necessary to afford just satisfaction …” He argues that the courts have wrongly rendered damages peripheral in human rights claims.
Chapter 3 addresses human rights which create positive obligations upon the state. Whereas the negative obligations are comparable to torts actionable per se, positive obligations are comparable to the tort of negligence. But positive obligations should be protected by expanding liability for damages. Their function “is still a protective, vindicatory one and the approach to damages should follow suit” (emphasis in original). Varuhas disputes that human rights violations are generally analogous to public wrongs, for which damages should not generally be available to individual claimants. The courts should not have emphasised this analogy with judicial review. On the contrary, new heads of damage must be recognised, including damages for violations of Articles 8 (right to private and family life, to include, for example, damages for loss of a relationship with a child), and for Articles 9 and 10 (religious freedom and freedom of expression).
Less controversially, he argues that where there are concurrent claims in tort and under the Human Rights Act, for example for false imprisonment and for violation of Article 5(1) (right to liberty), damages should be awarded on the same basis as damages for the tort. He does not argue that there must always be an award of damages for a violation of human rights. Specific relief may suffice. For example, a breach of Article 6 (right to a fair trial) may be remedied by an appeal or an order for a fresh hearing. Or an injunction may be adequate relief.
Chapter 4 (Part 2) argues that there is no fundamental divide between private law and public law, such that the distinction ought to influence the approach to damages. This is the error, Varuhas argues, in Anufrijeva. That court was influenced by the common law of judicial review, as that law was before the Human Rights Act, when claimants were enforcing public duties, rather than their individual rights. So, the court saw a tension between the interest of the claimant and the interest of the public, from whose funds any damages would be paid. One error Varuhas perceives in the analogy is that in claims for violation of human rights, the court may not be reviewing a decision. It may be, and increasingly is, deciding for itself. Another error is that there is no clear distinction between private law and public law (a category of law which was not even recognised as late as Dicey). Private bodies commonly provide public services, and are commonly required to conform to standards for the public benefit.
Chapters 5 to 7 (Part 3) examine the approaches to human rights damages which are not based on, and are more restrictive than, the tort approach contended for in this book. Chapter 5 considers the approach which “mirrors” that of the ECtHR. By English standards, ECtHR awards are ungenerous. Chapter 6 considers the “interest-balancing” approach propounded in Anufrijeva. Chapter 7 considers, and rejects, other principles that might be adopted to limit the availability, or the amount, of damages. These include the immunities doctrine which characterises US constitutional tort actions.
The adoption of the mirror approach in Greenfield was for two main reasons. It was in part based on the statement in the White Paper, Rights Brought Home CM3792 para 2.6, that the aim of the Bill “was not to give victims better remedies at home than they could recover in Strasbourg, but to give them the same remedies without the delay and expense of resort to Strasbourg”. It was also based on what Varuhas argues is a misinterpretation of section 8(4) of the Human Rights Act: “In determining – (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.” Varuhas argues that the Supreme Court was wrong to reject the approach that tort damages should be the guide. The words “take into account” do not mean “follow” or “treat as binding”, and decisions of the Supreme Court to this effect on section 2 of the Human Rights Act apply as much to section 8(4). The ECtHR does not set out clear principles for its monetary awards. Reviews of the case law, as in Faulkner can with difficulty establish a practice but a practice is not a principle. Further, while Article 13 (right to an effective remedy) is binding on Member States, Article 41 (just satisfaction) is not: it is addressed to the ECtHR. The supranational and subsidiary role of the ECtHR is different from that of national courts, and the ECtHR is not well placed to act as a court of first instance in awarding damages.
In Anufrijeva, the court propounded the interest-balancing approach in stating that “there is a balance to be drawn between the interests and the victim and those of the public as a whole”. Varuhas recognises the courts’ concern for the public interest. But he advances several criticisms. He argues that the approach is difficult to reconcile with Article 13. The courts only really consider those public interest factors that tell against making awards, or in favour of reduced awards. But there are countervailing public interests, including that victims should enforce compliance with human rights. The courts also act without evidence as to what the effect of making a tort-based award would be. Varuhas argues that there is evidence that tort-based awards would not undermine relevant public interests, as the courts have assumed. Discretionary remedies applicable only to human rights claims are difficult to reconcile with the rule of law. The public interest is counted twice. Before finding a violation, the court will already have been required to take that into account: there are public interest qualifications set out in all the Articles except Articles 3 and 4 (torture and slavery).
Varuhas notes that Conservative Governments have proposed that the Human Rights Act be replaced by a British Bill of Rights, which should repeal the requirement in section 2 that UK courts take into account ECtHR decisions. He suggests that, if there were to be such a reform, it would offer an opportunity for the law of human rights damages in section 8 to be reformed, to adopt the vindicatory approach contended for in this book. However, this book criticises the decisions made under the Human Rights Act from the opposite direction from the criticisms of those (mainly Conservative) critics who call for a British Bill of Rights. For those critics, the courts give too much to human rights claimants. For Varuhas, they give too little. Varuhas's arguments are directed to the Human Rights Act. But they also imply questions about the common law. Why does it give damages for false imprisonment, but not for delays in hearing an application in which it is belatedly held that detention is lawful? And why does it allow very low awards in some cases for torts actionable per se?
If the arguments in Parts 1 and 2 of this book do not persuade Parliament to reverse the decisions of the Supreme Court by repealing the Human Rights Act, they may perhaps persuade the ECtHR. Some of the arguments, notably those in Part 3, may be available for deployment in courts of first instance or the Court of Appeal. Varuhas acknowledges a difficulty. Academic writers and judges share a desire for the law to be clear and in accordance with principle. (The rule of law and of the Convention itself require that.) But judges also desire a degree of uncertainty in the law sufficient to enable them to fulfil their oath to do right according to the law.
Lord Goff of Chieveley was an academic and a judge. In Spiliada Maritime Corp. v Cansulex Ltd. [1987] A.C. 460, 488B-C, he said: “I cannot conclude without paying tribute to the writings of jurists … [E]ven when I have disagreed with them, I have found their work to be of assistance. For jurists are pilgrims with us on the endless road to unattainable perfection…” Varuhas cites several cases which I decided at first instance. If I had had the benefit of some of his arguments, I might have made different decisions in some of those cases, and given better reasons in others. Any advocate or court considering these arguments will be greatly indebted to this scholarly, comprehensive and thoughtful work.
