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Proposal for a draft Human Rights Act 1998 (Remedial) Order 2019

Background

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.

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