I have laid a draft proposal for a Remedial Order to amend section 9 of the Human Rights Act 1998 (HRA) to allow an award of damages in a new set of circumstances. This is to implement the judgment of the European Court of Human Rights (ECtHR) in Hammerton v UK (application no. 6287/10).
The domestic courts found that the applicant in Hammerton v UK had spent extra time in prison as a result of procedural errors during his committal which breached his rights under Article 6 of the European Convention on Human Rights (ECHR) as set out in the HRA (right to a fair trial). He was subsequently unable to obtain damages to compensate for the breach of Article 6 ECHR in the domestic courts because section 9(3) HRA does not allow damages to be awarded in proceedings 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).
In 2016, the ECtHR found a breach of Article 6 ECHR and adopted the finding of the domestic court that the applicant had spent extra time in prison as a result of the breach. The ECtHR found that the applicant’s inability to receive damages in the domestic courts in the particular circumstances of this case led to a violation of Article 13 ECHR (right to an effective remedy). The ECtHR awarded a sum in damages which has been paid.
Under Article 46 ECHR, the UK is obliged to abide by the judgment of the ECtHR in any case to which it is a party. In order to address the finding of a violation of Article 13 ECHR in Hammerton, legislative change is required as it was the result of a statutory bar on the award of damages under the existing section 9(3) HRA.
The Government proposes to implement the judgment by making a targeted amendment to section 9 HRA to make damages available in respect of breaches of Article 6 ECHR arising under similar circumstances to those in Hammerton. It would have the effect that:
- in proceedings for contempt of court;
- where a person does not have legal representation, in breach of Article 6 ECHR; and
- the person is committed to prison and the breach of Article 6 results in the person spending more time in prison than they otherwise would have done, or causes them to be committed to prison when they would not otherwise have been committed;
then a financial remedy would be available to the person to compensate for the breach of Article 6 ECHR that resulted in the person spending extra time in prison, or caused them to be committed to prison.
Following consideration of possible legislative options, the Government considers that there are compelling reasons to amend the HRA by Remedial Order under the power in section 10 HRA to take remedial action where a provision of legislation is incompatible with an obligation of the United Kingdom arising from the ECHR.
This draft proposal for a Remedial Order is being laid under the non-urgent procedure. It will be laid for a period of 60 days during which time representations may be made. The Joint Committee on Human Rights will scrutinise the Remedial Order and report on it to the House. Following that, the draft order, with any revisions the Government wishes to make, will be laid for a further 60 days before being considered and voted on by both Houses.
This statement has also been made in the House of Lords: