Section 9(3) of the Human Rights Act 1998 (HRA) does not allow damages to be awarded in proceedings under the Human Rights Act in respect of a judicial act done in good faith, except to compensate a person to the extent required by article 5(5) ECHR (deprivation of liberty).
The intention behind this provision was to preserve the principle of judicial immunity, while ensuring that there is an enforceable right to compensation for breaches of Article 5 (right to liberty) as required by the ECHR.
The domestic courts found that Mr Hammerton had spent extra time in prison as a result of procedural errors during his committal proceedings, meaning that his rights under Article 6 ECHR (right to a fair trial) were breached.
However, due to section 9(3) HRA they could not award him damages.
In 2016, the ECtHR therefore found a breach of article 6 ECHR and following the domestic court’s finding, found that the applicant had spent extra time in prison as a result.
In particular, the ECtHR found that the applicant’s inability to receive damages in the domestic courts in this case led to a violation of Article 13 ECHR (right to an effective remedy).
As this was a statutory bar to awarding damages, found in s. 9(3) HRA, the law needs to be changed to remedy the incompatibility of this provision with the ECHR.
On 16 July 2018, the Government laid its proposal for the Human Rights Act 1998 (Remedial) Order 2018 before both Houses of Parliament.
The purpose of the Government’s proposal is to remedy the incompatibility of s. 9(3) of the HRA with Article 13 ECHR.
The breach of Article 13 ECHR identified by the ECtHR relates to the availability of damages under the HRA for a judicial act done in good faith, and the right to an effective remedy arising out of a specific breach of Article 6 ECHR.
The Government proposes to address this incompatibility, by amending section 9 HRA to make damages available in respect of breaches of article 6 ECHR arising under similar circumstances to those in Hammerton v UK.
The proposed draft Remedial Order would make a targeted amendment to the HRA which would have the effect that damages would be available to compensate a person for a breach of article 6 that resulted in the person spending extra time in prison, or caused them to be committed to prison.
However, this would only be available where:
- a person is committed to prison in proceedings for contempt of court, in which a person does not have legal representation in breach of article 6 ECHR; and
- the breach of Article 6 results in the person spending more time in prison than they would otherwise have spent, or causes them to be committed to prison when they would not otherwise have been committed.
A Remedial Order is a form of subordinate legislation which amends or repeals primary legislation for purposes and in circumstances specified in the Human Rights Act 1998 (HRA).
One of these circumstances is where the Minister considers that a provision of legislation is incompatible with one of the UK’s ECHR obligations, “having regard to a finding of the European Court of Human Rights”.
Reporting on the draft proposal
The Joint Committee on Human Rights is required to report to Parliament on any Remedial Order made under the Human Rights Act.
The Committee has 60 days to report to each House its recommendation as to whether a draft Order in the same terms as the proposal should be laid before the House.
The Joint Committee on Human Rights invites submissions of no more than 1,500 words from interested groups and individuals.
The deadline for submissions is 30 September 2018.
In particular, the Committee is interested to know:
- Does the proposed remedial Order meet the procedural conditions for making a remedial Order (are there compelling reasons to proceed by way of remedial order)?
- Does the proposed remedial Order address the legislative incompatibility of section 9(3) HRA with Article 13 ECHR?
- Will the HRA be compatible with Article 13 ECHR (right to an effective remedy) once this change is made? Will the HRA give adequate effect to Article 13 ECHR once this change is made?
- Is the balance correctly struck as between judicial immunity and human rights protection, as explained in the Ministry of Justice’s “required information”?
Please send written submissions through the written submission form.