Section 9(3) of the Human Rights Act 1998 (HRA) does not allow damages to be awarded in proceedings under the HRA in respect of a judicial act done in good faith, except to compensate a person to the extent required by the right to liberty in Article 5(5) European Convention on Human Rights (ECHR). 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 (the 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 right to a fair trial under Article 6 ECHR were breached. However, due to section 9(3) HRA they could not award him damages. In 2016, the European Court of Human Rights (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.
A Remedial Order is a form of subordinate legislation which amends or repeals primary legislation for purposes and in circumstances specified in the 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”.
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 proposed to address this incompatibility by amending section 9 HRA to make damages available in respect of breaches of Article 6 ECHR arising in cases of contempt of Court, where the act that was incompatible with Article 6 resulted in the person spending extra time in prison, or caused them to be committeed to prison – i.e. under very similar circumstances to the facts of the case in Hammerton v UK.
The Joint Committee on Human Rights (JCHR) held an inquiry into the proposal and published a First Report on this proposed remedial order on 21 November 2018. On 15 October 2019, the Government laid both its Response to that Report as well as a draft remedial Order
The revised 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 an act that is incompatible with Article 6 (right to a fair trial) that resulted in the person spending extra time in prison, or caused them to be committed to prison. This is wider that the proposed draft remedial Order as it would not only apply to proceedings for contempt of Court but would apply to any acts that were incompatible with Article 6.
Reporting on the draft
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 sitting days to report to each House its recommendation as to whether a draft Order should be approved by both houses.
The Joint Committee on Human Rights invites submissions of no more than 1,500 words from interested groups and individuals. In particular, the Committee is interested to know:
- Does the draft 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 Response?
The deadline for submissions is 30 November 2019