33.As set out in the required information, the proposed Remedial Order only makes a very targeted amendment to the HRA to address the very specific circumstances that arose in Mr Hammerton’s case. Therefore, the exemption allowing for damages to be paid where a person’s human rights have been breached by a judicial act done in good faith would only apply where:
a)This judicial act was made in the context of proceedings for contempt of court;
b)The person did not have legal representation in those committal proceedings (in breach of the criminal limb of Article 6 ECHR);
c)The person is committed to prison; and
d)The breach of Article 6 results in the person either spending more time in prison than they would otherwise have spent, or causes them to be committed to prison when they would not otherwise have been so committed.
34.Technically, this does address the specific finding by the ECtHR in the case of Mr Hammerton and therefore, to the extent of the very specific facts in Mr Hammerton’s case, is sufficient to address this incompatibility. However, the terms of the Order are drawn so tightly that one naturally must ask whether this is but a technical fix to the problem identified by the ECtHR which will not do enough to prevent future similar violations of Article 13 ECHR (right to an effective remedy) by the operation of section 9(3) HRA. It would be open to the Government to go further. We note that this power can be used where, “having regard to a finding” of the ECtHR in proceedings against the UK, it appears that “a provision of legislation is incompatible with an obligation” of the UK arising from the ECHR (s. 10(1)(b) HRA). In such cases, an order may be used to make such amendments to the legislation as are considered necessary to remove the incompatibility (s. 10(2) HRA).
35.The reasons given by the Ministry of Justice for this very restrictive approach seem broadly to be grouped into three themes.
36.Firstly, it is worth noting that the wider question of whether the HRA as a whole adequately gives effect to Article 13 ECHR is too broad to be fully addressed in this Report. It is also beyond the scope of this Report to consider whether s 9(1) HRA hinders an individual’s ability to bring domestic proceedings in respect of a human rights violation arising from a judicial act, where, for example, an individual had neither a right of appeal nor a right of judicial review and therefore had no effective domestic remedy or means to challenge such a judicial act other than by recourse to the ECtHR in Strasbourg. We will focus here solely on whether sufficient effect is given to Article 13 ECHR in ensuring the availability of an effective domestic remedy in relation to human rights breaches arising from judicial acts done in good faith.
37.In relation to this group of arguments, the Ministry of Justice makes some valid points which are also reflected in the case-law of both the domestic Courts and the ECtHR, illustrating that Article 13 ECHR allows States a certain margin of appreciation in determining how best to provide an effective remedy for a breach of a Convention right. As is noted in the letter from the Parliamentary Under-Secretary of State:
“The [ECtHR] has been clear that States enjoy a certain margin of appreciation in the implementation of Article 13. Article 13 does not require incorporation of the ECHR into domestic law; nor does it require that individuals should be able to challenge legislation on the ground per se of being contrary to the Convention (e.g. James and Others v UK). What it does require is that the substance of the rights in the ECHR is secured to those in the state’s jurisdiction; and that an effective remedy is available to enforce those rights in whatever form they are secured.”
38.We agree. This means that the heart of the matter here is whether there is an effective remedy available in the UK to enforce the rights of those whose human rights have been breached by a judicial act done in good faith.
39.In the UK, the HRA performs a special role in ensuring that an effective remedy is available domestically for a human rights breach, without needing recourse to the Strasbourg Court. The letter from the Parliamentary Under-Secretary of State recalls that:
“The UK provides an effective remedy for violations of the ECHR through the [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.
[ … ] in any situation where an arguable breach of Convention rights has arisen as the result of a judicial act done in good faith, sections 7 to 9 HRA ensure that it is possible for an individual to bring proceedings or rely on a Convention right or rights in any legal proceedings, and that proceedings may be brought by way of an appeal or an application or petition for judicial review.”
40.As the Ministry of Justice notes, it is only very rarely that Article 13 ECHR would require the payment of damages in order for a remedy to be “effective” for the purposes of Article 13. In the majority of cases in which there is a judicial act, done in good faith, which leads to a violation of an individual’s Convention rights, this can readily be remedied by an appeal and other forms of relief (e.g. release from custody, declaratory relief). Therefore it will only be on very rare occasions when the statutory bar in section 9(3) will constitute a barrier to an effective remedy under Article 13 ECHR.
41.We note the non-legislative steps in place to try to ensure that the justice system has adequate measures in place to seek to avoid, where possible, human rights violations arising from a judicial act. However, it is concerning that the Ministry of Justice should seem to suggest that since a problem will not arise in many cases, it does not need to look further into a clear risk of injustice arising in other cases. It is not acceptable to justify a situation that allows human rights violations to persist merely by claiming that there are unlikely to be many such violations. Therefore, even though we agree with the Ministry of Justice that section 9(3) HRA is only seldom likely to be a bar to an effective remedy under Article 13 ECHR, we do not agree that this is any sort of adequate justification for keeping in place statutory barriers to an individual’s ability to enforce their human rights.
42.Whilst it is true that the ECtHR seemed to specifically note that Mr Hammerton had served longer in prison that he would have done had he been represented, it seems a leap to suggest that these are the only circumstances where section 9(3) Human Rights Act 1998 could cause a similar breach of Article 13 ECHR.
43.Indeed, we received evidence and information to suggest that this concern is not theoretical. As the Howard League for Penal Reform states in its evidence:
“The proposal for a draft Order does not sufficiently “remove the incompatibility” identified by the ECtHR in Hammerton. Although the facts of the case arose in connection with a failure to afford legal representation before committal [ … ] it was the fact of a violation of Article 6, in conjunction with the operation of s. 9(3), which gave rise to an arguable Article 13 ECHR claim.”
44.Further, they give an example of another case where a similar difficulty has arisen concerning an Article 6 claim in a challenge to extra days imposed on a prisoner by an independent adjudicator [R (MA) v Independent Adjudicator  EWHC 3886 (Admin)]. They note that:
“Beyond committal, there remain a range of scenarios where a judicial error—albeit in good faith—might amount to a violation of Article 6 and the imprisonment of an individual.”
45.The Howard League goes on to conclude that:
“[ … ] section 9(3) will remain incompatible with Article 13 and subject to further challenge in the Strasbourg Court. The young person in our example… is currently contesting the imposition of additional days in an application to the [ECtHR]. This application includes a challenge to the operation of s. 9(3) on Article 13 grounds… [this] illustrates that there are other situations beyond that in Hammerton where a remedy is required to ensure accountability and confidence in the system. By maintaining the wide bar in HRA s. 9(3), domestic courts are prevented from considering when damages might be required by ECHR Article 6 and any question of an effective remedy is deferred to Strasbourg.”
46.Thus it seems clear that there is a real risk that the proposed amendment may not fully remedy the incompatibility of s. 9(3) HRA with Article 13 ECHR.
47.Article 13 requires that the UK to ensure that an effective remedy is available domestically for a violation of a Convention right. This proposed draft Order seeks to remedy the incompatibility of s. 9(3) HRA with Article 13 ECHR. Whilst it may be that the bar on the payment of damages in s. 9(3) HRA might only very rarely result in a person being deprived of an effective remedy in the UK for a breach of a Convention right, it remains unacceptable to allow such a situation to persist.
48.It seems likely that situations will arise, albeit rarely, where s. 9(3) HRA, even if amended as proposed, would deprive an individual of an effective remedy for a breach of a Convention right. It is difficult to understand why the Ministry of Justice has omitted to make provision in this Order to remedy this incompatibility fully. For example, this could have been achieved by providing that damages may be payable in respect of a violation of a Convention right arising from a judicial act done in good faith where there is no other remedy available that would be effective for the purposes of Article 13 ECHR and where a judge has considered it just and appropriate to award damages.
50.It is clear that the concern to protect the principle of the independence of the judiciary is at the heart of the desire of the Ministry of Justice to make the amendments to s. 9(3) HRA as limited as feasible.
51.Judicial independence is a cornerstone of any justice system and a critical component of the rule of law in the United Kingdom. Indeed, judicial independence is itself key to ensuring effective enforcement of human rights. We therefore understand and support measures to ensure that judicial independence is preserved; it is necessary for the health of the justice system.
52.Judicial immunity is a key tool in ensuring the independence of the judiciary. As the Parliamentary Under-Secretary of State notes in his letter:
“[ … ] giving judges immunity from prosecution or civil proceedings for any acts they carry out in performance of their judicial function ensures that they cannot be influenced by an outside party or by their own personal interests, such as a fear of being sued for damages. As Lord Denning stated in Sirros v Moore  QB 118:
‘[ … ] That apart, however, a judge is not liable to an action in damages. The reason is not because the judge has any privilege to make mistakes or do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well stated by Lord Tenterden CJ in Garnett v Ferrand (1867) 6 B&C 611 625:
“This freedom from action or question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.”’”.
53.The principle underlying the modern justification of the principle of judicial immunity is set out in Re McC (a minor)  AC 528 at 540. This judgment focuses more on risks around opening up avenues for people to bring cases against judges, than on issues around the State paying damages where a judge has already found that a judicial act violated an individual’s human rights:
“The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of the party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging malice in the proper exercise of their jurisdiction”.
54.In the required information the Ministry of Justice explains the thinking behind s. 9(3) HRA and notes that their approach taken to the proposed Remedial Order is heavily influenced by the importance of preserving the principle of judicial immunity:
“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 breaches 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 functions. 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.”
55.We fully agree with the central importance of the independence of the judiciary to our constitutional system, and the importance of preserving judicial immunity to the extent necessary to serve this purpose. However, even setting aside any analysis of the distinctions at play here between a judge acting in bad faith, a judge acting in good faith and a judge acting recklessly or negligently, it is difficult to understand why the requirements of judicial independence should mean that in a case where a judge has made sufficient errors to violate an individual’s human rights, that individual should be deprived of an effective remedy from the State. It is worth recalling here, that the question is not about an individual having a means to bring proceedings to challenge the violation; that is already available. There is also no question of the judge, himself or herself, being personally liable. The question is merely whether, in a rare case where it has been found that a judicial act violated an individual’s human rights, a judge could order damages to be payable by the State if there were no other remedy available which would be effective for the purposes of Article 13 ECHR.
56.As the evidence from the Howard League for Penal Reform notes:
“Giving judges the discretion to decide when damages are needed to meet other violations of Article 6 arising from judicial error is unlikely to result in any judicial enthusiasm to stray beyond the bounds of the case law from Strasbourg. Hammerton makes clear that Article 6 violations requiring damages by way of just satisfaction may be rare (see paragraphs —). Leaving individuals without any effective remedy in our courts is unjust, unnecessary and a waste of public resources.”
57.We share the Ministry of Justice’s concern to ensure the utmost respect for the principle of judicial independence, and therefore to maintain judicial immunity where this is required. We are not convinced that judicial immunity requires UK judges to be deprived of the ability to award damages against the State in the very rare circumstances where no other remedy would be effective for the purposes of Article 13 ECHR in order to remedy a human rights violation.
58.The Parliamentary Under-Secretary of State explains as follows his approach of giving a narrow reading of the incompatibility flowing from the Hammerton judgment and therefore a limited approach to the remedial power:
“This Remedial Order addresses the particular circumstances of Hammerton v UK. We do not think it is necessary or appropriate to broaden the power to award damages under section 8 HRA further at this stage… Nor do we think that doing so by way of a Remedial Order would be suitable use of the power under section 10(2) HRA. Before using this power, the Government is required to have compelling reasons to make such amendments as are considered necessary to remove the relevant incompatibility. Remedial Orders were intended to be used in specific circumstances to allow primary legislation to be amended by way of secondary legislation and care must be taken to ensure they are used appropriately.”
59.The Howard League for Penal Reform disagrees:
“Where a judgment identifies a legal barrier to an effective remedy in the application of a general immunity or a procedural bar, it appears illogical to conclude that there are compelling reasons only to fast-track reform in one specific set of facts, in this case, committal proceedings. This fails to deal with other types of cases where a person may be awarded damages for a violation of ECHR Article 6 in Strasbourg but remains barred by the reformed s.9(3) in proceedings at home. There is nothing in the reasoning of the ECtHR in Hammerton that means the impact of the judgment in Article 13 need be so confined.”
60.We do not share the Ministry of Justice’s very restrictive reading as to the incompatibility of s. 9(3) HRA with Article 13 ECHR that arises from the judgment of Hammerton v UK. Nor do we consider that the remedial power requires an amendment to be restricted to the specific facts of a case. Indeed, where the use of a remedial power is restricted so that it fails to remedy the incompatibility identified except in relation to the very specific facts of a given case, this would seem to omit provisions that the Remedial Order should have contained in order to adequately remedy the incompatibility. As such this proposed draft Order risks offending the Committee criterion “Does the proposed order remedy the incompatibility with Convention rights … and does the proposed order omit additional provisions which it should have contained?”.
61.We think it is more logical to remedy this incompatibility in a way which enables judges to award damages in those rare cases where no other remedy would be effective for the purposes of Article 13 ECHR. This would ensure that an effective remedy would be available in domestic courts without needing recourse to the ECtHR in Strasbourg.
62.We recommend that the Minister reconsider the drafting in the proposed draft Remedial Order to allow domestic UK judges to award damages in the rare cases where there is no other effective remedy available for a violation of human rights caused by a judicial act. We recommend that the Government, having reconsidered the drafting in light of this, then lay a draft Remedial Order before both Houses.
17 Appendix 2, Letter from the Parliamentary Under-Secretary of State for Justice to the Chair, dated 25 September 2018, at page 1.
18 Appendix 2, letter from the Parliamentary Under-Secretary of State for Justice to the Chair, dated 25 September 2018, at page 1–2.
19 See, for example, Appendix 2, the information provided at page 3 of the letter from the Parliamentary Under-Secretary of State for Justice to the Chair dated 25 September 2018.
20 Howard League for Penal Reform (), at para 4.3.
21 Howard League for Penal Reform (), at para 4.5.
22 Howard League for Penal Reform (), at para 5.1.
23 Re McC (a minor)  AC 528 at 540.
24 Ministry of Justice, , July 2018, at page 9.
25 Howard League for Penal Reform (), at para 6.3.
26 See Appendix 2, letter from the Parliamentary Under-Secretary of State for Justice to the Chair dated 25 September 2018, at page 3.
27 Howard League for Penal Reform (), at para 4.4.
Published: 21 November 2018