Section 8: Judicial remedies
44.Section 8 deals with the remedies that a court or tribunal can grant on finding that a public authority has acted, or was proposing to act, unlawfully under section 6(1).
45.Subsection (1) confirms that the court or tribunal can grant any relief or remedy, or make any order, that it is within its powers to grant or make.(2) The rest of the section is concerned with damages as a remedy (see also section 10(3) on the subject of damages).
46.Subsection (2) sets out that nothing in the Act empowers a court or tribunal to award damages if that court or tribunal does not otherwise have the power to do so.
47.Traditionally damages for wrongs are awarded in Scotland on the basis of trying to put the wronged person back into the position that the person would have been in had the wrong not occurred. Subsection (3) places a duty on courts and tribunals considering whether to award damages for an unlawful act under section 6(1), and how much to award, to consider those questions on the basis of what is necessary to provide just satisfaction to the person. This is the principle on the basis of which damages are awarded under section 8 of the Human Rights Act 1998.
48.Subsection (4) applies section 3 (contribution among joint wrongdoers) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 to any award of damages under this section. Equivalent provision is contained in section 8(5)(a) of the Human Rights Act 1998.
49.Subsection (5) precludes an award of damages from being made to the Commissioner for Children and Young People in Scotland or the Scottish Commission for Human Rights.
But see also section 33 of the Children (Care and Justice) (Scotland) Act 2024, which adds a new subsection (6) into section 8, noting that the court’s power under section 8(1) is modified, in certain cases involving UNCRC compatibility issues in criminal proceedings, by section 288BZA of the Criminal Procedure (Scotland) Act 1995.
