Proposed Draft Human Rights Act 1998 (Remedial) Order 2018
Thank you for your letter of 6 September asking for further information in relation to the proposed draft Human Rights Act 1998 (Remedial) Order 2018.
Article 13 of the European Convention on Human Rights (ECHR) (right to an effective remedy) provides that everyone whose rights and freedoms as set forth in the ECHR are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. Article 13 is only engaged if there has been an arguable breach of another provision of the ECHR (e.g. Powell and Rayner v UK).
The European Court of Human Rights (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.
The effective remedy need not be a judicial remedy (Leander v Sweden) and Article 13 can be complied with by an accumulation of remedies (Al-Nasif v Bulgaria).
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.
More specifically, 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.
For example, where an individual contends that the conduct of a judge during a trial has resulted in a violation of a Convention right, the individual will be able to appeal and the appeal court may quash a criminal conviction or set aside the relevant judicial findings. Often this will be appropriate and sufficient redress. There is no requirement under the ECHR for states to provide compensation to those who have had convictions overturned, or those who have been subject to adverse and unwarranted judicial findings in good faith and who have been able to have those adverse findings overturned by the judge.
Parliament has already legislated - under section 9(3) HRA - to exclude the availability of damages for judicial error made in good faith (save for those who are due to be compensated for a breach of Article 5(5) ECHR). The scope of damages determined by Parliament to be paid in such circumstances falls within the appropriate margin of discretion as to how to remedy judicial shortcomings.
Parliament’s intention was that the HRA should both preserve the important constitutional principle of judicial immunity and satisfy the requirement under Article 5(5) for an enforceable right to damages for those who have been victims of arrest or detention in contravention of the provisions of Article 5.
As explained in the information accompanying the draft of our proposed Remedial Order, 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.”’
Our proposed amendment to the HRA preserves the approach of the original legislation by setting out a further limited circumstance relating to detention in which it is possible for victims to receive damages in relation to a judicial error done in good faith, alongside that for breaches of Article 5.
In its judgment in Hammerton v UK the ECtHR did not hold that all judicial error creating a violation of Article 6 ECHR will result in a right to damages. Rather:
“152. The Court has held that the applicant can still claim to be a “victim” of a violation of Article 6 insofar as he did not receive any redress in the form of financial compensation for the prejudice caused to him by that violation, namely a lengthened deprivation of liberty (see paragraphs 136 to 137 above). Translating that finding into the terms of Article 13, 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. There has accordingly been a violation of Article 13 in the present case.”
The particular prejudice that required damages to be payable in this case was the ‘lengthened deprivation of liberty’ caused by the absence of legal representation.
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, in light of the considerations set out above. 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.
Further, the facts of Hammerton v UK are unusual given the safeguarding measures that are in place relating to access to legal aid and representation in England and Wales. Since the events which gave rise to the breach identified in Hammerton v UK, the MoJ and the Legal Aid Agency (LAA) have acted to standardise access to legal representation in committal hearings. Public funding is available to individuals facing a committal application through the criminal legal aid scheme, and this is not means-tested for hearings in the High Court, Family Court or County Court. Supporting guidance on how to apply for criminal legal aid for a committal application was issued to solicitors by the LAA in 2015.
Finally, we consider that the justice system has appropriate structures in place to prevent such situations arising. Fair and equal treatment is regarded as a fundamental principle of administering justice and one which is embedded in the judicial oath, therefore making it a judicial responsibility. The judicial oath provides: ‘I will do right to all manner of people after the laws and usages of this Realm, without fear or favour, affection or ill-will.’ In taking this oath, the judge acknowledges that he or she is primarily accountable to the law which he or she must administer. There is guidance available to the judiciary to support them in ensuring this. For example, the Judicial College has published an Equal Treatment Bench Book which builds upon judges’ understanding on the important aspects of fair treatment, making some suggestions as to steps that judges may wish to take, in different situations, to ensure that there is fairness for all those who engage in legal proceedings in our courts and tribunals. I hope this information is helpful.
Edward Argar MP
Published: 21 November 2018