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


The Issue that the proposed draft Order addresses

1.This proposed Remedial Order concerns the right of a person whose human rights have been breached to have an effective remedy for that breach (Article 13 ECHR). In many cases, the right to an effective remedy will not require the payment of damages–an effective remedy could for example consist in having an appeal, in being released from prison, or in having the Court make a declaration. However, on some occasions where other remedies are not available, damages could be the only remedy that would be effective. Normally in the UK damages are available as a remedy (where appropriate) for a breach of a person’s human rights. However, where a human rights breach is the result of a judicial act done in good faith, then damages currently are not available due to the operation of s. 9(3) HRA.

2.The proposed Remedial Order arises from a judgment of the ECtHR, Hammerton v UK, in which the ECtHR found that Mr. Hammerton’s inability to receive damages in the UK Courts in the particular circumstances of his case led to a violation of Article 13 ECHR (right to an effective remedy). Mr Hammerton was denied legal representation at his committal hearing, when the judge was determining whether or not Mr Hammerton was in contempt of court and should be committed to prison as a consequence. This was a breach of Article 6 ECHR (right to a fair trial). As a result, Mr Hammerton spent longer in prison than he would have done if represented. But Mr Hammerton could not receive damages for the time spent in prison because section 9(3) of the Human Rights Act bars the award of damages in respect of a judicial act done in good faith.

3.The justification for s. 9(3) HRA is to preserve the principle of judicial independence through ensuring judicial immunity for judicial acts done in good faith. However, there is a valid question as to whether judicial independence is really prejudiced by an award of damages, in cases where a court has found a judicial act breaches an individual’s human rights, and has found that no other remedy is effective, (particularly as such damages are payable by the State and not the judge personally).

4.The proposed draft Remedial Order seeks to amend section 9(3) HRA so that damages would be available in specific circumstances where in proceedings for contempt of court, a person did not have legal representation (in breach of Article 6 ECHR), and that person was committed to prison and spent longer in prison than they would have done because of that breach of Article 6 ECHR.

5.The Committee welcomes the Government’s action in proposing the draft Remedial Order to amend the Human Rights Act 1998 to remedy its incompatibility with the right to an effective remedy under Article 13 of the ECHR.

Role of the Joint Committee on Human Rights

6.The HRA provides that where it appears to a Minister having regard to a finding of the ECtHR in proceedings against the UK, that a provision of legislation is incompatible with an obligation of the UK arising from the ECHR, Ministers may amend the legislation to correct that incompatibility through a “Remedial Order”, and may use such an Order to amend primary legislation.3 There are special provisions to ensure that this power is not used inappropriately. In the non-urgent procedure (which is being used here), a proposal for a draft has to be laid before Parliament for 60 days, during which representations may be made. If the Government decides to proceed, it will then lay a draft Order, accompanied by a statement responding to the representations and explaining what changes, if any, have been made to the draft in consequence. In order to be made, the draft Order must be approved by each House of Parliament, a further 60 days after laying.4

7.A proposal for a draft Human Rights Act 1998 (Remedial) Order 2018, together with the required information,5 was laid before both Houses on 16 July 2018.

8.The Standing Orders of the Joint Committee on Human Rights (JCHR) require us to report to each House our recommendation as to whether a draft Order in the same terms as the proposal should be laid before Parliament, and we may also report on any matter arising from our consideration of the proposal.6 The Committee reports on the technical compliance of any Remedial Order with the HRA and notes whether the special attention of each House should be drawn to the Order on any of the grounds specified in the Standing Orders relating to the Joint Committee on Statutory Instruments (JCSI).

9.We issued a call for evidence on the Government’s proposal on 16 March 2018.7 We are grateful to those who responded to our call for evidence or drew our attention to other relevant information, which has been very useful. A list of those who contributed in included at the back of this Report and all written submissions we received can be found on our website.8 We have also been in contact with officials from the Ministry of Justice who have been helpful throughout. Further, on 6 September 2018, the Chair wrote a letter to the Justice Secretary seeking further clarifications as to certain elements relating to the proposed Human Rights Act 1998 (Remedial) Order 2018, in particular relating to the relationship between judicial immunity and the right to an effective remedy as well as enquiring as to the Government’s view as to whether the Human Rights Act 1998 would now give full effect to Article 13 ECHR. On 25 September 2018 Edward Argar MP, the Parliamentary Under-Secretary of State for Justice, replied to the Chair by letter.9

Matters for consideration

10.In order to consider the proposed order adequately, the Committee generally asks:

11.The relevant grounds on which the JCSI can draw a statutory instrument to the special attention of each House are:10

Legislative context

12.Section 8 HRA provides that, in relation to any act of a public authority which a court or tribunal finds is unlawful, it may grant such relief or remedy within its powers as it considers just and appropriate–and this includes damages. On the surface this provision (taken with other remedies within the justice system) would seem to grant sufficient effect to Article 13 ECHR by enabling an adequate remedy to be found for a breach of a person’s Convention rights.

13.However, section 9(3) HRA provides that “in proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention”. (Article 5(5) ECHR requires that “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”).

14.The Ministry of Justice explained the thinking behind section 9(3) HRA in its required information:

“The current limitation in the HRA on the availability of damages in proceedings in respect of a judicial act done in good faith is there to preserve the principle of judicial immunity, while ensuring that there is an enforceable right to compensation for breach of Article 5 as required by the ECHR. Judicial immunity is a key aspect of judicial independence. An independent and impartial judiciary is one of the cornerstones of a democracy and one of the practical ways in which this is given effect is by giving judges immunity from prosecution or civil proceedings for any acts they carry out in performance of their judicial function. Individuals involved in any kind of case before the courts need to be sure that the judge dealing with their case cannot be influenced by an outside party or by the judge’s own personal interests, such as a fear of being sued for damages.”11

15.Sections 8 and 9(3) HRA therefore seek to find an acceptable balance by both giving effect to the right to an effective remedy for a breach of an individual’s human rights and by respecting the principle of judicial independence, which is in part given effect by granting judicial immunity. Indeed, most of the time section 9(3) will not act as a barrier to a remedy as most instances where a person’s human rights could be breached by a judicial act done in good faith can be resolved adequately by appeal to a higher court, or by other means. It is only in very rare cases where damages would be the only effective remedy for such a breach.

16.As the Parliamentary Under-Secretary of State set out in his response to the Committee (see Appendix 2):

“The UK provides an effective remedy for victims of violations of the ECHR through the Human Rights Act 1998 (HRA) as a whole, which gives individuals the ability to bring proceedings to enforce their Convention rights or rely on those rights in other proceedings; and through the ability under section 8 HRA for courts and tribunals to grant any relief or remedy within their powers as they consider just and appropriate. This relief or remedy need not be damages; indeed, damages are often not necessary to afford just satisfaction for breaches of Convention rights.”12

17.We note that s. 9(3) HRA does not affect the types of litigation that could be brought—this section only acts as a statutory bar once a court has already determined that a judicial act done in good faith has breached an individual’s human rights. It is also worth noting here that the extent to which judicial immunity is preserved in s. 9(3) HRA is quite wide. For example, a judicial act “done in good faith” is a broad category which could include reckless or negligent actions. Importantly, any damages that might be awarded in the rare cases where this is permitted would be paid by the State, so there is no risk of a judge personally being pursued for payment of damages.

Litigation history

18.The present concern is the breach of Article 13 ECHR caused by the operation of section 9(3) HRA. However, the facts of the case relate to contact proceedings and to committal proceedings for contempt of court which involved a breach of Article 6 ECHR (the right to a fair trial). It was the lack of remedy for this breach of Article 6 ECHR that led to the subsequent breach of Article 13 (lack of an effective remedy for a breach of a Convention right).

19.The context of the Hammerton case relates to contact proceedings between the applicant and his former wife concerning contact with their children. In sum, Mr Hammerton had given an undertaking, in December 2004, to the County Court not to contact or communicate with his former wife except through his own solicitors. This was followed by a further injunction granted by the County Court in February 2005 preventing him from using or threatening violence towards her. In July 2005, his former wife applied for him to be committed to prison for breach of the undertaking and the injunction. Meanwhile, at some point following their divorce in August 2004, Mr Hammerton’s legal aid certificate was withdrawn and this was due to be reviewed at a panel in early August–this impacted his legal representation (or lack thereof).

20.In July 2005, the judge decided to hear the application for contact at the same time as the proceedings for committal for contempt. Mr Hammerton was unrepresented (the applicant’s legal aid certificate having been withdrawn) and the judge made no enquiries as to why he was unrepresented or whether he wished to have representation. The judge made an order for indirect contact and committed Mr Hammerton to three months in prison for contempt of court (given the breach of the undertaking and the injunction). The applicant sought to instruct lawyers from prison to appeal his committal but they failed to assist him (for which he has already received compensation).

21.The applicant appealed his committal and in March 2007 the Court of Appeal quashed the finding of contempt and the sentence imposed. The Court of Appeal found that there had been a number of breaches of Article 6 ECHR (the right to a fair trial). The Court recalled the well-established case-law that in proceedings for committal for contempt, a defendant benefits from the right to legal assistance (which he was not afforded in this case), a right against self-incrimination (of which he was not informed in this case) and that the burden of proving guilt lay with the person seeking committal (which seems to have been confused in this case by the judge hearing two different applications at the same time). Moreover, the Court of Appeal found that there were further flaws given the lack of legal representation and opportunity for mitigation at the sentencing stage. The Court concluded that the defects in this case and notably the lack of legal representation would have made a difference. Lord Justice Wall (at paragraph 52) noted “No Magistrate’s Court would impose a custodial sentence on an unrepresented defendant, and in my judgment, no family court should send a litigant in person to prison for contempt without first making arrangements for that litigant to be legally represented.”13

22.Mr Hammerton then sought damages under the common law for the tort of wrongful imprisonment and under the HRA. In February 2009, the High Court dismissed his claim, whilst noting and reiterating the breaches of Article 6 ECHR that had been found by the Court of Appeal. In respect of the false imprisonment claim, the High Court noted that there was immunity from suit for a claim based on alleged errors of a circuit judge of competent jurisdiction that resulted in detention in the absence of bad faith. Moreover, the operation of section 9(3) HRA precluded damages in respect of a judicial act done in good faith, with the exception of damages required by Article 5(5) ECHR. In particular, having considered the Article 5 case-law, the High Court did not consider that the breaches of Article 6 (right to a fair trial) had led to a breach of Article 5 (deprivation of liberty) in this case, as the Court considered that these breaches of Article 6 were better categorised as an erroneous exercise of judgment, than as something which rendered the subsequent detention “not in accordance with the law” or “arbitrary”—which would be the threshold for an Article 6 violation leading to a violation of Article 5. However, even though the Court found that there were no grounds for damages (and no violation of Article 5 which could have allowed for damages under the HRA), the judge nevertheless explained that without the Article 6 violations, a finding of contempt would have been inevitable in Mr Hammerton’s case, but that whilst custody would be been the most likely outcome, the sentence would have been significantly shorter (approximately fourteen days). The applicant sought leave to appeal which was refused so he then brought the case to the ECtHR in Strasbourg.

23.Much of the ECtHR’s judgment in Hammerton v UK relates to the question as to whether or not the breaches of Article 6 in Mr Hammerton’s case (as set out above) led to a breach of Article 5 ECHR (for which damages could be available). There is also some analysis explaining why committal proceedings for contempt should be subject to the safeguards in what is normally referred to as the “criminal” limb of Article 6 ECHR. In particular, the ECtHR was clear that a finding of a violation of Article 6 ECHR does not automatically lead to a violation of Article 5 ECHR and moreover held (albeit by a narrow margin of 4:3) that in Mr Hammerton’s case there was no breach of Article 5 since there was no gross and obvious irregularity nor was there a flagrant denial of justice sufficient to render Mr Hammerton’s detention arbitrary. However, the Court did find a violation of Article 6 ECHR (in keeping with the findings of the Court of Appeal and the High Court) and a breach of Article 13 ECHR given the lack of any effective remedy for the breach of Article 6 in the circumstances of Mr Hammerton’s case (a lack of legal representation which led to Mr Hammerton spending a longer time in custody).

24.The breach of Article 13 ECHR identified by the ECtHR in Hammerton v UK specifically relates to the non-availability of damages as an effective remedy under the HRA for a breach of Article 6 ECHR that was due to a judicial act done in good faith. This therefore relates specifically to section 9(3) HRA. It is also noteworthy than in its judgment the ECtHR specifically referenced the impact of the prejudice suffered in the form of lengthened deprivation of liberty and that this was the result of the absence of legal representation in the applicant’s case. The ECtHR held (at paragraph 152) that:

“the Court cannot but conclude that the domestic remedies available to the applicant in relation to his complaint under Article 6 were not fully “effective” for the purposes of Article 13, since they were not capable of affording adequate redress for the prejudice suffered by him in the form of the lengthened deprivation of liberty caused by the absence of legal representation in his case”.14

3 See Human Rights Act 1998, section 10 & schedule 2

4 There is also an urgent procedure, in which the Minister may lay a made order, but there is a period of 120 days (divided in two 60-day periods) during which representations may be made and responded to. In both cases, each House of Parliament must then approve the Order if it is the have effect (or continuing effect in the case of the urgent procedure).

5 “Required information” means (a) an explanation of the incompatibility which the (proposed) order seeks to remove, including particulars of the relevant declaration, finding or order; and (b) a statement of the reasons for proceeding by way of Remedial Order and for making an order in those terms (See Human Rights Act 1998, Schedule 2, para 5).

6 House of Commons, Standing Orders, Public Business 2017, HC 4, 152(B), and The Standing Orders of The House of Lords relating to Public Business 2016, HL Paper 3, 72(c).

7 Joint Committee on Human Rights, Proposal for a Draft Human Rights Act 1998 (Remedial) Order 2018 – call for evidence

8 Joint Committee on Human Rights; submissions

9 See Appendices, which contains both letters.

10 House of Commons, Standing Orders No. 151(1)(B).

11 Ministry of Justice, A proposal for a Remedial Order to amend the Human Rights Act 1998, July 2018, at page 9.

12 Appendix 2, Letter from the Parliamentary Under-Secretary of State for Justice to the Chair, dated 25 September 2018, at page 1.

13 Hammerton v Hammerton [2007] EWCA Civ 248, paragraph 52.

14 Hammerton v United Kingdom 2016 (Application No. 6287/10), at para 152.

Published: 21 November 2018