JOINT

Drafting of Human Rights act 1998 (Remedial) Order 2018 should be reconsidered

21 November 2018

The Joint Committee on Human Rights publishes report on Human Rights act 1998 (Remedial) Order 2018. The report says judges should have power to award damages where there is no other effective remedy for a human rights breach.

In a report published examining the Government’s proposed Remedial Order to amend the Human Rights Act 1998, the Joint Committee on Human Rights said that the Government should reconsider the drafting of the Human Rights act 1998 (Remedial) Order 2018 to ensure that judges can award damages where there is no other effective remedy available for a breach of a person’s human rights.

This should include where this breach of human rights was the result of a judge’s actions.

The Committee welcomes the Government’s Remedial Order (a form of secondary legislation that corrects an incompatibility in UK Law with basic human rights) but says that:

  • They share the Ministry of Justice’s concern to ensure the utmost respect for the principle of judicial independence, and therefore to maintain judicial immunity where this is required. However, the Committee is not convinced that judicial immunity requires UK judges to be deprived of the ability to award damages against the State in the very rare circumstances where no other remedy would be effective for the purposes of Article 13 ECHR in order to remedy a human rights violation.
  • They do not share the Ministry of Justice’s very restrictive reading as to what is required to remedy this human rights violation. They consider that this proposed use of the remedial power is so restricted that it fails to remedy the incompatibility identified except in relation to very specific facts.
  • They think it is more logical to remedy this incompatibility in a way which enables judges to award damages in those rare cases where no other remedy would be effective for the purposes of Article 13 ECHR. This would ensure that an effective remedy would be available in domestic courts without needing recourse to the ECtHR in Strasbourg. They recommend that the Minister reconsider the drafting in the proposed draft Remedial Order to allow domestic UK judges to award damages in the rare cases where there is no other effective remedy available for a violation of human rights caused by a judicial act.

Further information

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