Human rights cases raise complex issues

The Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law, g...

The Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law, gives individuals and organisations the right to bring such claims for breach of Convention rights.

A recent case involving an allegation of a breach of the Act was that of R (on the application of SB) v The head teacher and governors of Denbigh High School (2005). An application was brought by Ms Begum, for judicial review of her school's decision to exclude her for failure to comply with its uniform policy. On appeal, Ms Begum alleged that she was being denied both her right to manifest her religion and access to suitable and appropriate education, in violation of the Convention.

Girls at the school were permitted to wear a shalwar kameeze. The school had serious concerns that the introduction of the jilbab might lead to the development of two classes of Muslim within the school and lead to tension. It was for this reason that the judge at first instance held that limitations on the claimant's rights were necessary for the protection of the rights and freedoms of others.

The Court of Appeal held, overturning the decision, that the school had not begun from the correct premise, namely that the claimant had a recognised right and that the school had to justify interference with this. The court provided some guidance as to the issues that other schools should take into account in establishing a uniform policy.

Ms Begum did not pursue a claim for damages for breach of her Convention rights and loss of education. Damages did fall to be considered, however, in R (on the application of Greenfield) v Secretary of State for the Home Department (2005).

In that case, the House of Lords considered the principles applied by the European Court of Human Rights in awarding compensation. It held that, in most cases, a simple finding by the court that there had been a violation would amount to just satisfaction and noted that awards for loss of procedural opportunity or anxiety and frustration were generally modest.

While the recent House of Lords decision confirms that awards of damages for breaches of human rights will only be appropriate where just satisfaction is not achieved by the mere recognition of a breach, it is clear that there is increasing recourse to the Act.

As Ms Begum's case illustrates, such disputes can raise complex issues and, consequently, become very costly, irrespective of whether any award of damages is sought.

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