Judicial immunity underpins the independence of the judiciary and therefore is a key part of the UK constitutional structure. However, like other immunities, its extent should be limited to what is necessary and proportionate for its purposes. Judicial immunity does not mean that a person whose human rights have been breached should be left without an effective remedy. It is therefore right that in those cases where there is no other effective remedy, a person should have access to damages (financial compensation) for a breach of their rights under the European Convention on Human Rights, 1950 [ECHR]—even where this breach is the result of a judicial act made in good faith. However, under the current law in the UK, there is no access to damages in these circumstances.
The European Court of Human Rights (ECtHR) found, in the case Hammerton v United Kingdom, that it was a violation of Article 13 ECHR (right to an effective remedy) for a person not to have recourse to damages (financial compensation) for a violation of a Convention right if there was no other effective remedy. The circumstances of the case involved a person, Mr Hammerton, who had been committed to prison for contempt of court for a longer period of time than he would otherwise have been, due to a judicial act which did not allow him rights under Article 6 (right to a fair trial)—including depriving him of legal representation for his committal hearing. The reason that damages (financial compensation) was not available in this case was due to the operation of section 9(3) of the Human Rights Act 1998 [“HRA”], which is a statutory bar to an award of damages where there has been a breach of the ECHR that is due to a judicial act done in good faith. In the case of Hammerton v UK, this ultimately led to a violation of Article 13 of the ECHR.
Section 9(3) HRA prevents damages (financial compensation) from being awarded where a judicial act has resulted in a violation of a person’s Convention rights—except where this is required by Article 5(5) ECHR relating to the right to liberty and security. In most cases where a judicial act violates an individual’s Convention rights, there will be a possibility of appeal and this normally will be sufficient to provide an effective remedy for the violation. However, in some cases there will be no adequate redress possible and therefore no effective remedy possible other than damages (financial compensation). In the absence of an ability for the courts to award damages in the rare cases where this is required, this can lead to a breach of Article 13 ECHR (right to an effective remedy).
The proposed draft Human Rights Act 1998 (Remedial) Order 2018 seeks to remedy that incompatibility in the HRA (section 9) with the UK’s human rights obligations arising from the Convention. In our view, the proposed Remedial Order does meet the procedural requirements of section 10 and Schedule 2 HRA necessary to use the power to make a Remedial Order. However, it does so in a very narrow manner. It only remedies this problem where it relates to a judicial act in contempt of court proceedings, in which a person was unfairly deprived of legal representation (contrary to their Convention rights), and where this led to them serving longer in prison that they would otherwise have done.
There is a reasonable likelihood that there are other circumstances in which judicial acts made in good faith could cause a similar breach of a person’s Convention rights and where section 9(3) HRA would similarly deprive them of an effective remedy. Whether or not other cases could suffer the same problem as with the Hammerton case will be a question as to the degree of maltreatment of the applicant in that particular case. However, it seems likely, rather than merely fanciful, that other cases could suffer these same problems, as demonstrated in the helpful evidence from the Howard League for Penal Reform. In our view, whilst the proposed Remedial Order would therefore remedy the very specific facts of Mr Hammerton’s case, it is likely that it will not be sufficient to remedy the incompatibility identified in Hammerton v UK. It is therefore likely that s. 9(3) HRA will remain incompatible with Article 13 ECHR and consequently subject to further challenge in the Strasbourg Court. For these reasons, in our view, the proposed draft Remedial Order does not do enough to remedy the overall risk of incompatibility of the s.9(3) HRA with Article 13 ECHR and the right to an effective remedy.
The Government has taken a very narrow reading of the Hammerton judgment and its powers under section 10(1)(b) and 10(2) HRA which allow the Minister “having regard to a finding” of the ECtHR to make “such amendments… as he considers necessary to remove the incompatibility” with an “obligation of the UK arising from the Convention”. Such an amendment could easily have remedied the incompatibility of s. 9(3) HRA with Article 13 ECHR by allowing judges the ability to award damages in the rare cases where this was the only effective remedy. We invite the Government to consider whether alternative drafting could give better effect to removing the incompatibility in s. 9(3) HRA with Article 13 ECHR.
1 Hammerton v United Kingdom 2016 (Application No. 6287/10).
2 In a contempt of court case, a committal hearing is the hearing at which the judge determines whether or not the individual is in contempt of court, for example for breaching a court order, and also determines if the person should be committed to prison for a period of time as a consequence.
Published: 21 November 2018