Joint Committee On Human Rights Appendices to the Minutes of Evidence

9.  Letter to Chairman from Jacqui Smith MP, Minister of State, Department of Health

  Thank you for your letter of 24 October 2001. I am grateful for the Committee's assistance in identifying important issues arising from the remedial action being taken under section of the Human Rights Act 1998 ("the 1998 Act").

  We have considered carefully the two aspects that you highlight on behalf of the Committee. We now intend to adopt the Committee's recommendation that the urgent procedure is used by have decided against the inclusion of a statutory compensation scheme in the remedial order. I will deal below with each of the points raised in your letter.


  We have taken very seriously the Committee's concern over the procedure chosen in relation to this particular remedial order. As I have previously stated in correspondence, the decision as to which procedure was to be used was not a clear cut one. The decision to adopt the non-urgent procedure was taken in deference to Parliament. In light of the views of the Committee, we are content in this case to switch to the urgent procedure and propose to take the neceesary action within the next week.

  The Committee further seeks policy statements as to the guiding principles that should apply in determining which procedure is to be used. For my part, I cannot comment beyond the case in hand, except to say that the views expressed by the Committee will be considered very carefully by any of my ministerial collegues who may find themselves proposing future remedial orders.


  We identified three options that would enable compensation of those individuals, if any, who have been detained contrary to the Convention as a direct result of the incompatibility identified by the Court of Appeal in the case of H. Having considered each option in considerable detail, we have concluded that the ex gratia scheme outlined in earlier correspondence is the most practical and effective way of compensating any victims of the incompatibility.

  The three options identified were: to make the remedial order retrospective in effect (under paragraph 1(1)(b) of Schedule 2 to the 1998 Act); the inclusion of a statutory compensation scheme in the remedial order (with acknowledgements to the Committee); or the adoption of an ex gratia scheme.

  The option of bringing the remedial order into effect retrospectively initially appeared attractive because it would indirectly have created a cause of action under the 1998 Act for all those who had been detained contrary to the Convention. However, the drawback was that it would also have led to complaints by those patients whose detention did not in fact breach the Convention. Whilst these latter patients should not succeed ultimately in any legal proceedings they brought (on the basis that the question of who bore the "burden of proof" in law did not affect the outcome) they would nonetheless have the right to test this before the court. This would create a great deal of uncertainty, potentially for a long time into the future, as old cases before the Mental Health Review Tribunal were re-litigated in the courts.

  The latter two options have more similarities than differences and were considered side by side and, as I said at the outset, we continue to prefer the ex gratia scheme route.

  In practice, the UK Government will have done all that would have been required of it had the case been heard by the ECtHR and not the domestic court. Following a finding of an article 5 incompatibility by the ECtHR, the UK Government would have, in all likelihood, undertaken to amend its legislation prospectively to remove the incompatibility. Compensation would then have been paid to victims on an informal case by case basis. That is what is proposed in this case in response to a domestic finding of article 5 incompatibility. Given that the purpose of the 1998 Act was to incorporate Convention rights into domestic law, it seems incongruous that a different response would be required to a domestic finding of incompatibility than a Strasbourg one. Furthermore, the Government is not aware of any pending proceedings in Strasbourg in which the Article 5(5) issue is raised. Given the time limit of six months for bringing a case in Strasbourg, it is unlikely that there will be any such cases. But, if there were, and the UK Government had offered a complainant ex gratia compensation, it is highly unlikely, in the Government's view that the European Court of Human Rights would regard the complaint as admissible, since it would be academic on its facts. The difference between the statutory scheme and an ex gratia scheme is more theoretical than real.

  Moreover, an ex gratia proposal could allow a degree of flexibility that is unlikely to come from a statutory scheme. For example, it may be the case that claims will be entertained under an ex gratia scheme that would have been rejected as out of time under a statutory scheme. This would potentially be of benefit to those who might claim compensation.

  On a practical note, the adoption of the ex gratia scheme will allow the remedial order to be transferred to the urgent procedure without delay. The inclusion of a statutory compensation scheme at this stage would inevitably lead to delay, notwithstanding that it was dealt with expeditiously, as such a scheme would need to be drafted. For my part, I do not see the justification for introducing such a complex legal structure where it has little or no practical effect.

  I have taken the opportunity to look at what Ministers said during passage of the Human Rights Bill. In the House of Lords, 27 November 1997, column 1108, the Lord Chancellor remarked that ex gratia payments, retrospectivity and the use of the prerogative might all be appropriate ways to respond to a declaration of incompatibility. I hope you will agree that a willingness to make ex gratia payments in this case, combined with a prospective change in the law, is indeed a responsible and proper course.

  Finally under this head, I note that the Committee further seeks to know what "different circumstances" might have led to a different conclusion. Having confined myself to considering the facts of this case alone, I am afraid I am not in a position to answer this question.

6 November 2001

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