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

Conclusions and recommendations

Introduction

1.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.(Paragraph 5)

Procedural Requirements

2.Overall, we are satisfied that there are compelling reasons to proceed by Remedial Order and that this is a valid use of the remedial power. (Paragraph 31)

3.More specifically, Committee considers that the non-urgent procedure strikes a reasonable balance between the competing considerations of the need to avoid undue delay in remedying the incompatibility with human rights standards and the need to afford a proper opportunity for parliamentary scrutiny of changes to primary legislation. However, in its response to this Report, it would be useful for the Government to explain why it does not consider other individuals to be affected by the incompatibility and does not anticipate other similar cases in the near future. This is of particular interest given separate information received that other similar cases are being brought to the ECtHR in relation to the non-availability of adequate effective remedies for breaches of rights under the ECHR (Article 13 ECHR), including by other types of judicial acts made in good faith. (Paragraph 32)

Does the proposed Order address the incompatibility & does the proposed Order omit additional provisions which it should have contained

4.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. (Paragraph 47)

5.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. (Paragraph 48)

6.We recommend that the Minister consider whether alternative drafting could give better effect to removing the incompatibility in s. 9(3) HRA with Article 13 ECHR. (Paragraph 49)

7.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. (Paragraph 57)

8.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?”. (Paragraph 60)

9.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. (Paragraph 61)

10.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. (Paragraph 62)





Published: 21 November 2018