Human Rights Act reform consultation: Scottish Government response

26. We think the Bill of Rights could set out a number of factors in considering when damages are awarded and how much. These include:

a. the impact on the provision of public services;
b. the extent to which the statutory obligation had been discharged;
c. the extent of the breach; and
d. where the public authority was trying to give effect to the express provisions, or clear purpose, of legislation.

Which of the above considerations do you think should be included? Please provide reasons.

369. It is properly for the courts to determine the most appropriate remedy in cases where there has been a violation of human rights.

370. Both the domestic courts and the ECtHR have an established track record in this area and government should not seek to constrain the ability of the courts to perform their proper function as a guarantor of the rule of law.

371. Under existing arrangements the courts have powers to award damages where doing so is necessary to ensure "just satisfaction". They properly make that assessment on a case by case basis, in light of all of the relevant facts, and it is entirely for the court to determine whether damages should be awarded and, if so, how much.

372. Financial compensation is not automatic and is unlikely to be awarded where there is an alternative option to remedy a human rights violation. Where damages are payable, the amounts involved do not tend to be particularly large^[73].

373. It is of course true that the overall cost may prove to be significant in situations where large numbers of individuals have been affected. In those instances, relatively small individual payments can result in a large overall impact. However, it is the Scottish Government's view that it is for the courts to consider the factors which apply in each individual case and that judicial independence in this matter must be strictly protected.

374. It should also be noted that section 8(3) of the HRAexpressly links the domestic human rights damages regime to the ECtHR regime through its use of the concept of "just satisfaction".

375. To the extent that removing or altering that provision would risk breaking the link between domestic and international law, these proposals appear likely to result in a significant increase in the number of UK cases being heard in Strasbourg. Such a situation would benefit neither the litigants in individual cases nor the UK as a State Party to the ECHR.

376. The consequence, once again, would be to frustrate access to justice whilst further damaging not only the UK's own international reputation but the integrity and coherence of the wider ECHR system.