Human Rights Act 1998 (Remedial) Order 2019
(4 years, 3 months ago)
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Baroness Scott of Bybrook
That the Grand Committee do consider the Human Rights Act 1998 (Remedial) Order 2019.
Relevant document: 2nd Report from the Joint Committee on Human Rights
Baroness Scott of Bybrook (Con)
My Lords, this draft remedial order was laid before both Houses on 15 October 2019 in the last Session of Parliament. It was laid to implement the decision of the European Court of Human Rights in the case of Hammerton v the United Kingdom. The draft order amends Section 9(3) of the Human Rights Act 1998 to enable damages to be awarded under the Human Rights Act in respect of a judicial act done in good faith that is incompatible with Article 6—the right to a fair trial—of the European Convention on Human Rights. It provides the power to award damages where a person is detained and would not have been detained for so long, or at all, were it not for the incompatibility.
The Government consider this limited amendment to be an appropriate balance that implements the judgment of the European Court of Human Rights and takes into account the views of the Joint Committee on Human Rights, while also respecting the important constitutional principle of judicial immunity and the constraints provided by Section 9(3) of the Human Rights Act.
The particulars of the case are that in 2005, Mr Hammerton was committed to prison for three months for contempt of court after breaching an injunction and undertaking during child contact proceedings. However, he was not legally represented at the committal proceedings due to procedural errors. The Court of Appeal quashed the finding of contempt and the sentence, finding that he had spent extra time in prison as a result of procedural errors during his committal proceedings, which were such that his rights under Article 6—the right to a fair trial—were breached.
In 2009, Mr Hammerton lodged a claim for damages in respect of his detention. The High Court held that the lack of legal representation had led to Mr Hammerton spending around an extra four weeks in prison. However, he was unable to obtain damages to compensate for the breach of Article 6 in the domestic courts, because Section 9(3) of the Human Rights Act does not allow damages to be awarded in proceedings under the Act in respect of a judicial act done in good faith, except to compensate a person to the extent required by Article 5(5) of the convention—that is, where someone has been the victim of arrest or detention in contravention of the right to liberty and security.
In 2016, the European Court of Human Rights considered this case and found a breach of Article 6. The court also found that the applicant’s inability to receive damages in the domestic courts in the particular circumstances of his case led to a violation of Article 13— the right to an effective remedy—and awarded a sum in damages, which has been paid. We are obliged, as a matter of international law, to implement the judgment of the European Court of Human Rights which, in this case, means taking steps in respect of the violation of Article 13 to ensure that similar violations will not arise in the future.
To set the draft order in context, the Human Rights Act gives individuals the ability to bring proceedings to enforce their convention rights or to rely on those rights in other proceedings, and gives courts and tribunals the ability to grant any relief or remedy within their powers as they consider just and appropriate.
The award of damages is often not necessary to afford just satisfaction for breaches of convention rights. In the majority of cases in which a judicial act done in good faith leads to a violation of an individual’s convention rights, it can readily be remedied by an appeal and other forms of relief, such as release from custody. Therefore, it would be only on rare occasions that the existing statutory bar in Section 9(3) of the Act would constitute a barrier to a victim receiving an effective remedy as required by Article 13 of the convention.
The bar on paying damages in cases such as this one is in primary legislation. To implement the judgment, it is necessary to amend the relevant primary legislation —in this case, the Human Rights Act 1998, which sets out the procedure for making remedial orders such as the ones we are discussing today.
In 2018, the Government laid a proposal for a draft remedial order to make a narrow amendment to Section 9 of the Human Rights Act. That amendment provided for damages to be payable in respect of a judicial act done in good faith where, in proceedings for contempt of court, a person does not have legal representation in breach of Article 6, that person is committed to prison and the breach of Article 6 results in the person being detained for longer than he or she would have been otherwise. The Government considered that that addressed the specific findings of the court, while at the same time taking into account the need to preserve the important principle of judicial immunity—a constitutional principle that should rightly be preserved.
In November 2018, the Joint Committee on Human Rights reported on the draft remedial order and was of the view that that proposed amendment was too narrow and did not fully remove the incompatibility of Section 9(3) of the Human Rights Act with Article 13. It recommended that we consider redrafting the order to make damages available for any breach of human rights caused by a judicial act where otherwise there would be a breach of Article 13, whether or not that leads to a deprivation of liberty. In other words, the committee said that we were not extending it enough and should go broader than the specific facts of the case.
In response, the Government accepted that other situations could arise outside proceedings for contempt of court where a judicial act done in good faith could potentially amount to a breach of Article 6, where that breach could result in the victim spending time in detention or longer in detention than they would otherwise have done, and where damages would be unavailable, contrary to Article 13. The order before the Committee today is therefore slightly wider in scope than the 2018 draft order, taking into account the need to balance addressing the incompatibility identified by the European Court of Human Rights with the need to protect the principle of judicial immunity.
I am grateful to the Joint Committee on Human Rights for its scrutiny of the proposal for a draft order and its careful consideration of the more recent draft order that has been laid. We welcome the Joint Committee’s recommendation that Parliament approve the order.
Noble Lords will have heard me mention just now the need to protect the principle of judicial immunity. Judicial independence and the principle of judicial immunity must be protected; any intrusion needs to be stringently justified. That is why we engaged with the judiciary to ensure that it was fully sighted on the judgment and our plans for the remedial order.
Finally, given that the Human Rights Act 1998 applies to the whole of the United Kingdom, this order would apply UK-wide. Our officials have worked closely with the devolved Administrations during this process.
The order ensures that, in certain limited additional circumstances, where our domestic courts find that a judicial act done in good faith has breached an individual’s Article 6 right to a fair trial and led to them spending longer in detention than they should, the courts are able to determine and properly consider whether an award of damages should be made for any such breach.
I beg to move.
Lord Blunkett (Lab)
I am very grateful to the noble Baroness for spelling out so clearly and concisely the purpose of the remedial order. I am as much here on a Thursday evening to learn, as I often am in the House of Lords, as to contribute, but I think that we have to be much clearer about what we are doing.
I am in favour of the reinterpretation of Article 5(5) —that is what the remedial order does—and the ability to provide redress when mistakes are made in the form of the kind of award we are discussing tonight. However, we should not be under any illusion that we are maintaining judicial immunity. There will undoubtedly be drift in how this remedial order is subsequently interpreted regarding the extension of the Human Rights Act. It raises also the issue of the incorporation of the ECHR into the Human Rights Act back in 1998 and what was anticipated at the time.
In addition, although I am not concerned about Henry VIII powers in this particular instance, it raises the question of whether this should have been part of primary legislation rather than an adjustment through a remedial order to the primary legislation. While it is perfectly reasonable to provide compensation in the individual case that was taken through the European court, other interpretations of mistakes made—inadvertently and therefore not deliberately—will undoubtedly arise. I am not entirely clear how judicial immunity is maintained in those circumstances, not least because anyone who has spent any time reviewing how judicial oversight of the court system itself works will note that very often it does not work well. Failure to provide counsel in this particular instance is just one of many mistakes that inadvertently might lead to an injustice.
Tonight, therefore, in approving the remedial order, I think that we should be much more open to understanding the likely implications down the line.
Lord Thomas of Gresford (LD) [V]
My Lords, I welcome this order with some reservations and queries. It is important that where the European Court of Human Rights has found that UK legislation is incompatible with the European convention, that incompatibility should be removed. The fact that parliamentary proceedings are required to do that should satisfy anyone who groans under the yoke of the European Court of Human Rights, and its judgments are not effective without the approval of the UK Parliament. However, I would like to raise three queries.
The first is the use of the Schedule 2 procedure in this instance. Section 10(2) of the Human Rights Act provides that a remedial order may be made to amend legislation to remove the incompatibility which has been found if the Minister of the Crown considers there are “compelling reasons” for proceeding under that section. Since the procedure can be used not only to amend primary legislation but to amend it retrospectively, as in this case, it is obvious that Parliament wishes to place some restriction on the Minister’s powers.
In this instance, paragraph 7.3 of the Explanatory Memorandum gives as the “compelling reason” that
“current pressure on the legislative timetable means there is little prospect of using primary legislation.”
That is the main reason given. It also states that
“the nature of the incompatibility contributes to there being compelling reasons for making the necessary legislative change swiftly.”
I rather doubt that. This order is retrospective, so I cannot see what need there is for speed.
Can the Minister confirm that there are a number of outstanding cases where claims for damages have been brought against courts or tribunals which would previously have been caught by Section 9(3) of the Act but which will be acceptable under this new remedial order? If there is not such a queue, how can the Minister justify the use of the word “swiftly”? There has not been a moment in the years I have been contributing in this House when the Government could not raise the excuse of “current pressure” on the legislative timetable.
My second query relates to the identity of the defendant in a case such as this, and that raises the question of judicial immunity. Mr Hammerton’s complaint was against the county court judge who failed to inquire about, let alone to grant him, legal representation in the proceedings in which he imprisoned him for contempt of court. Having succeeded on appeal in quashing that order of imprisonment, and having served his period of imprisonment, Mr Hammerton brought proceedings for damages in the High Court. He also had to apply for leave to bring proceedings out of time. The report does not make it clear whether the judge personally was the defendant or whether the proceedings were brought against the county court in which the judge sat. Section 6(1) of the Human Rights Act states:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
Subsection (3) defines a public authority as including,
“a court or tribunal, and … any person certain of whose functions are functions of a public nature.”
Of course that could include a judge.
For the purpose of clarity, and considering the question of judicial immunity, can the judge be sued personally for a breach of convention rights, such as here, and is he personally liable for damages? I assume that the policy behind Section 9(3), as it stood, was to protect the judge personally, provided he acted in good faith. It is conceivable that a judge—perhaps it was more likely in the past than it is today—might act so outrageously as to lose any claim to be acting in good faith.
Finally, having regard to the findings of the Court of Appeal in the Hammerton case, are civil judges routinely instructed on their powers of imprisonment or of punishment in contempt of court cases? Certainly judges and magistrates in the criminal courts are made fully aware, time and again, in lectures and communications, of their powers and their responsibilities where any question of imprisonment arises. A magistrate would have immediately appreciated the problem had he been present. It was a very basic error for the judge to use his power to imprison without even inquiring whether Mr Hammerton had legal advice and assistance.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am sorry to interrupt the noble Lord, but we are quite tight on time and we are close to time already.
Lord Mackay of Clashfern (Con) [V]
My Lords, this is an important application and I think it is right that I should refer to a very interesting paper by Professor Richard Ekins, who is professor of law and constitutional government at the University of Oxford. He argues that this order is ultra vires and unconstitutional. On the first point, he argues that the provisions of Section 10 of the Human Rights Act are of a type that should be construed strictly, and so construed do not allow amendment of the Human Rights Act. On the second point, his argument is that this order amending the Human Rights Act is an unusual and unexpected use of the Section 10 power, and accordingly it is inappropriate.
It will be seen that these two arguments are closely linked. While I see how the argument has been skilfully deployed, I think it construes the power of Section 10 too strictly, since the Human Rights Act is primary legislation and makes no exception of itself. Indeed, the power is contained in the Human Rights Act perhaps because that Act is so closely related to the convention that some incompatibility within it was foreseeable. This incompatibility is the source of the trouble that appeared here.
In my view the situation is such that Section 10 applies. I agree that the constitutional position of judges must be carefully taken into account, but it is fair to say that the Court of Human Rights really depended on the nature of the procedure, which had resulted in the then accused being sentenced for contempt of court to imprisonment. It was—I hope—a very exceptional case, but one which could arise in the circumstances, creating an incompatibility between the right to damages on the one hand and the failure to give the right of damages on the other, except in a case to which the section exempting the judicial honesty from such a result may apply. It was thought, correctly I think, that the amendment proposed here kept in place that judicial immunity while at the same time compensating the accused person—the applicant—for what was construed as a procedural error.
It is quite a tricky position. When the original application was put in, I am told that the then Lord Chancellor considered the matter with the judiciary and concluded that it was right to apply for the order. I support that judgment now and would support the grant of the order in the circumstances.
Baroness Massey of Darwen (Lab) [V]
My Lords, it is a great pleasure to follow the previous distinguished speakers, who have made many interesting points already. I am not a lawyer, but a member of the very active Joint Committee on Human Rights and will speak wearing that hat. The JCHR has reported on each of these remedial orders this Session, including the one under discussion now. I and all the committee are most grateful to the JCHR secretariat for its detailed work in supporting this committee.
As has been set out, this order concerns the ability of a person whose rights have been violated by a judicial act done in good faith to have an effective remedy for the wrong suffered. The risk has been that the person may be deprived of an effective remedy as required by Article 13 of the ECHR because the Human Rights Act 1998 prevents courts awarding damages in such cases.
I will not go into the history of this, as others are more capable of doing so, but will move on to the role of the JCHR and its conclusions. Our Standing Orders require the committee to report to each House on two things: whether the special attention of each House should be drawn to the draft order and with a recommendation whether the draft order should be approved.
There has been some difficulty over timing to allow proper parliamentary scrutiny of remedial orders, which can be used to amend primary legislation. The Joint Committee has drawn attention to this in relation to the dissolution period we have gone through in particular.
The committee has sought further information since its first report, such as whether Article 13 of the ECHR is given sufficient effect in UK law. There was no clear response to this from the Secretary of State for Justice or in the government response to the report. The committee therefore wrote to the Under-Secretary of State for Justice regarding the Human Rights Act and Article 13 of the ECHR in October 2019 to seek further clarity, and we received responses. The Government set out their position on Article 13 with regard to UK law and clarified the situation.
However, the Government are, of course, currently contesting a case before the ECHR involving Article 13 in relation to a breach of Article 8 on the right to family and private life. The JCHR has asked to be kept up to date on this case. The committee is content that the Government have revised the draft order and considered possible incompatibilities relevant to issues arising from Article 13. The committee welcomes the Government’s acceptance of its recommendations in its first report and the amendments it has made to the draft order. The committee considers that the procedural requirements of the HRA 1998 on the use of remedial powers have been met and considers that the draft order takes care of the incompatibility identified by the courts. The JCHR considers that there are no reasons why the order should not be agreed by both Houses of Parliament, and we recommend that the draft order should be agreed to today. I look forward to the rest of the debate and its outcome.
Baroness Ludford (LD)
I am pleased to see the Government taking action to be compliant with the convention and the Strasbourg court judgment, since they have sometimes not been flavour of the month. I also welcome the observation in the response last year to the JCHR report that,
“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 European Court of Human Rights. That is also a welcome endorsement of the Human Rights Act, which is also sometimes questioned in certain political circles.
When I listened to Mr Tony Abbott, the former Prime Minister of Australia, yesterday before the Foreign Affairs Committee in the other place, if I heard him right, he seemed to say that from next year the UK Government would not have to pay any money to the Council of Europe. I think that must have been a confusion with the EU Council of Ministers because, after all, the Council of Europe is not an EU body. I did a double take, because he is apparently about to become trade adviser to the Trade Secretary so does he know something that I do not? Are the Government going to pull out of the Council of Europe? I think it must have been a slip of the tongue.
The noble Lord, Lord Blunkett, and my noble friend Lord Thomas of Gresford understandably questioned whether a remedial order rather than primary legislation is absolutely justified in this case. After all, the Hamilton case was in 2016 and the Government’s first draft of this order was in 2018, so to say that this has been done swiftly is a bit of a stretch.
The Government’s original draft was criticised by the JCHR as a very narrow technical fix, and it wanted a wider application so that the order would remedy incompatibilities with Article 13 fully, namely by providing for damages to be payable for the breach of the 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 where a judge considers that it is just and appropriate to award damages. It seemed to me—but perhaps the noble Baroness, Lady Massey, is better informed—that the Government have only partially accepted the advice of the JCHR and redrafted the order to, in the words of the Minister, “slightly widen” the scope of its original draft to cover any circumstances in which a judicial act done in good faith has breached Article 6 and has led to imprisonment or other detention. So they have gone wider than the constraint of “only in the context of contempt proceedings where the person is deprived of legal representation and sent to prison”, but only to some extent where the Article 6 breach has resulted in unjustified detention.
Can the Minister therefore explain precisely why the remedial order cannot be widened further in scope to cover an award of damages in case of any violation of a convention right where there is no other effective remedy? The Ministry of Justice has in its submission stressed the importance of judicial immunity and independence, which is very welcome given the mud slung at judges in the past few years. We remember the slowness of the then Lord Chancellor in speaking up against the disgraceful “Enemies of the People” headlines over the Article 50 litigation. There were also very bad headlines over the prorogation judgment.
I am pleased to see the Government’s confirmation, in their response, that
“an independent and impartial judiciary is one of the cornerstones of a democracy”
and that, in a letter that a then Minister at the MoJ sent to the Joint Committee on Human rights, it was noted that
“proceedings may be brought”
under the HRA
“for breach of a convention right by way of an appeal or an application or petition for judicial review.”
Given that, in a Written Statement yesterday, the Justice Secretary elaborated on the Government’s review of administrative law, which is intended to advise on “reform of judicial review”, complacency about the availability of judicial review in the future would be out of place.
Lastly, I look forward to the Minister’s reply on why this measure cannot be somewhat wider so that there is redress where a judge has made sufficient errors to violate human rights. It is a step forward but it is still incomplete.
Baroness Warsi (Con)
My Lords, I support the remedial order and welcome the Government’s changed position. The draft order originally laid was too narrow. I will make three short points.
First, I believe and hope that this process has not cast doubt on the importance of judicial immunity, a vital bedrock of our system. Judicial independence is a principle that has universal support but, in an area as fundamental as a violation of a person’s right to liberty under Article 5 or to a fair trial under Article 6, as a result of a judicial act, even when done in good faith, it is only right that damages follow in those extremely rare cases where no other remedy is possible, as was the case in Hammerton v UK.
As has already been said, an independent and impartial judiciary is one of the cornerstones of a democracy. However, as was said in the other place, depriving judges of the power to award damages against the state does not strengthen independence. The order that now allows damages to be awarded to judicial acts done in all proceedings and in relation to all breaches of Article 6 that have led to a person spending time in prison or being detained is an important position, both in principle and symbolically.
Secondly, I pay tribute to the Joint Committee on Human Rights—particularly the noble Baronesses, Lady Ludford and Lady Massey of Darwen, who are taking part in today’s proceedings—for assisting the Government in reaching the right place. It was right to ensure that we maintain a spirit of generosity in embracing the human rights framework.
Finally, Professor Richard Ekins of Oxford University presented an alternative view in a paper published by Policy Exchange and referred to today by my noble and learned friend Lord Mackay of Clashfern. He made a case for the proposition that the Human Rights Act does not authorise its own amendment in the way that is proposed in this order. It is comforting, however, to hear that the Government continue to remain committed to ensuring that legislation takes effect only in so far as it is in compliance with the convention. It was, after all, the purpose behind the Act to ensure that we were, and continue to remain, convention compatible. It would be an odd outcome of the process designed to ensure compatibility existed with regard to all other legislation that it was cited to prevent the same in relation to the Act itself.
With those comments, I support the order as now drafted.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
I am afraid that we cannot hear you, Lord Marks. The sound quality is terrible. Can you get nearer to the microphone, perhaps?
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
Slightly. Let us hope that the Minister can hear you.
Lord Marks of Henley-on-Thames (LD) [V]
I will start again. The principal substantive point that I wish to make is that the decision in Hammerton and this remedial order highlight the importance of Article 13, which provides
“an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The article enshrines the principle that breaches of the convention must give rise to an effective remedy.
Furthermore, for all that the language may be dry, it is that article that ensures that the convention does not stop at declaring citizens’ human rights, to which this country is bound by international obligation, but also guarantees a remedy for the violation of those rights. Crucially, such a remedy must be available where the violation is a result of action by the state.
In the Hammerton case, the violation was of Mr Hammerton’s Article 6 right to a fair trial, including his right to legal representation when his liberty was at stake. This required a remedy to be available, which it was not pursuant to Section 9(3) of the Human Rights Act as unamended.
This is why the convention is such a powerful protection for individual citizens, because Governments may well find it undesirable and inconvenient to ensure that citizens’ rights against the state are consistently respected and enforced. As the Explanatory Memorandum puts it:
“The courts found that the applicant … had spent extra time in prison as a result of procedural errors during his committal proceedings, which were such that his rights under Article 6 … were breached. However, he was unable to obtain damages in the domestic courts … The ECtHR found that the applicant’s inability to receive damages … had led to a violation of Article 13.”
I believe that this remedial order illustrates the intelligent way in which Section 10 of the Human Rights Act operates in respecting the sovereignty of Parliament. That is achieved by its providing for the Government to give effect to decisions of the ECHR to the effect that UK legislation is incompatible with the convention, while leaving it to Parliament to make the necessary amendments to that legislation. This is a textbook example of that process in action. I do not believe that this is in any way a misuse of Section 10, and I agree with the conclusion of the noble and learned Lord, Lord Mackay, that the remedial order is appropriate. I see the point about swiftness in this case, but it seems to me that this order is nevertheless the right way to proceed.
The thoroughness and care of the Joint Committee on Human Rights was reflected in its report. First, it found that the remedial order originally proposed was too narrow, as was pointed out by the noble Baroness, Lady Warsi, and by my noble friend Lady Ludford. In paragraphs 23 and 24 of its second report, it considered how far judicial acts done in good faith may lead to a violation of other convention rights. It concluded, as the noble Baroness, Lady Massey, said, that
“such situations are difficult to foresee …and therefore do not fall within the remedial Order requirement of being ‘necessary to remove the incompatibility’.”
I stress again how important it is that the recommendations of the Joint Committee on Human Rights are given full weight by the Government, as they were in this case. I firmly believe that, in the interests of human rights, all the recommendations of that committee should be implemented unless there are extremely powerful reasons why they should not be followed.
Lord Falconer of Thoroton (Lab)
I strongly agree with the noble Lord, Lord Marks, that this a very clear example of it being for the UK legislature to decide, where there is an incompatibility, whether to change the law. It is not something that comes because of the European Court of Human Rights reaching that conclusion; it is because Parliament decides. I strongly endorse what he said in relation to that.
I strongly agree with the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Marks of Henley-on-Thames, and the Government that Section 10(1)(b) and Section 10(2) of the Human Rights Act, which refers to legislation that is incompatible, do not contain any reservation for the Human Rights Act itself and therefore, as a matter of construction of Section 10, it is possible to use the Section 10(2) power in order to amend the Human Rights Act itself. I too have read Professor Ekins’s suggestion that that is wrong. Honestly, I do not think there was anything at all in the points he was making, and I agree with everybody else’s point in relation to that.
I have two concerns. I was very glad to hear the noble Baroness say that the Government were very concerned about judicial immunity. If you are a judge and think that you might be sued because of a decision you make in good faith—we are dealing here only with decisions made in good faith—that might inhibit the decision you reach. The noble Lord, Lord Thomas of Gresford, made it pretty clear that a judge could, himself or herself—or themselves, if it is the Court of Appeal or the Supreme Court—be sued in relation to this. I would be very grateful to hear what reassurance the noble Baroness can give. She said that judges would be “properly protected” and so it would be very difficult to sue them in their own names, and that there would be no question but that—assuming that they had acted in good faith, because that is the only circumstance in which this applies—they would be indemnified if they were sued in person. Any reassurance the noble Baroness can give in that respect is very important.
The second issue I would like to raise is this. My understanding is that the reason judgment was found against the United Kingdom in Hammerton v United Kingdom is that the consequence of the judge not according Mr Hammerton legal representation was, as the High Court of England and Wales found, that he spent more time in jail for contempt than he otherwise would have. No appeal putting it right can compensate someone for spending time in jail when they should not have.
The one area where I would be interested to know what the Government say is what happens when a court order leads to the disclosure of information that might be in breach of Article 8—where information that should be kept private as a matter of Article 8 is then made public as a result of a court order, but, if we assume that the court order is then reversed in the Court of Appeal, the information has been made public as the result of a judicial act. What do the Government say is the position in relation to that? Assuming that the judge of the court has acted in good faith in the circumstances I posit, is that something in respect of which there would be no remedy at the moment? Is that something the Government are looking at, or is there some effective remedy under Article 13, and therefore one would not need to worry about it?
Baroness Scott of Bybrook (Con)
My Lords, I am very grateful to noble Lords for their contributions to this debate. I will try to answer as many questions as I can and if I have missed anything, we will look through Hansard tomorrow and make sure that noble Lords get a written response, a copy of which I will put in the Library.
A number of themes came out of this debate, the first of which was using primary legislation rather than a remedial order. A number of noble Lords, including the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, said that this is exactly the type of situation that the Section 10 power was created for: where very narrow and targeted amendments are being made to address incompatibilities that have been identified by the courts. I would also say that the JCHR has scrutinised the draft SI and agrees that it is an appropriate use of the power to make a remedial order. It is for Parliament, of course, to decide whether or not to approve it. While I am talking about this, I thank the noble Baroness, Lady Massey, and others who were on the JCHR and who had to look at these orders twice: the Government appreciate their work and we thank them for their recommendations.
The second theme that came up, and related to that, was the power of the Secretary of State. My noble and learned friend Lord Mackay brought up the Secretary of State having vires to amend the HRA itself via remedial order. The Government have considered this question very carefully and are confident that this is an appropriate use of the remedial order-making powers.
The power is unusual in that it requires a court decision and it is intended for, and limited to, removing an incompatibility identified either by a domestic court or by a Minister having regard to a finding of the European Court of Human Rights. I hope that helps my noble and learned friend Lord Mackay of Clashfern to understand that, as I am sure he does.
The scope of the remedial order came up a number of times. The noble Baronesses, Lady Ludford and Lady Massey, asked whether it was too narrow. The JCHR’s first report recommended the Government consider redrafting the order to make the damages available for any breach of human rights caused by a judicial act where otherwise there would be a breach of Article 13, whether or not that leads to detention. This is why the Government redrafted the remedial order with a slightly wider scope; we accepted that other situations could arise outside the committal proceedings, where a judicial act made in good faith could amount to a breach of Article 6, where that breach could result in the victim spending longer in detention than they should have done, and where damages would be unavailable, contrary to Article 13.
Any widening of those circumstances in which a remedy in damages is available in respect of a judicial act done in good faith should, we consider, be approached with caution because of the risk of the erosion of the principle of judicial immunity, which the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, brought up very strongly, as did my noble and learned friend Lord Mackay of Clashfern.
In the report on the redrafting of the remedial order, the committee welcomed our acceptance of its recommendations and it has recommended that it should go through Parliament. This was very welcome.
The noble Lord, Lord Thomas, had a question on the violation of convention rights by judges and hoped that this would not happen again, as in Hammerton v United Kingdom. I assure the noble Lord that training and guidance are available to the judiciary; the Judicial College has published an Equal Treatment Bench Book, which builds on judges’ understanding of fair treatment. That should put the noble Lord’s mind at rest that we are doing something.
The noble Lord, Lord Blunkett, brought up again the question of whether this should be in primary legislation or an approved remedial order. I hope noble Lords will accept that this is exactly the type of situation that the Section 10 power was created for: making an order to address incompatibilities.
There was quite a lot of debate about judicial independence and immunity, particularly, and understandably, from the noble and learned Lord, Lord Falconer of Thoroton. Judicial immunity is a key aspect of our judicial independence. He is quite right: an independent and impartial judiciary is one of the cornerstones of our—or any—democracy. 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. If he would like me to, I am very happy to write from the department about exactly what effect this will have and to put his mind at rest. We can do that after this Committee.
I think that is all that I had to specifically respond to. I reiterate that this order is the right way to implement the judgment; it reflects a pragmatic approach. I think that the noble and learned Lords, Lord Falconer of Thoroton and Lord Mackay of Clashfern, and the noble Lord, Lord Marks of Henley-on-Thames, and others, agreed that this reflects a pragmatic approach and ensures that we meet our international legal obligations—which we have to do—while still upholding the principle of judicial immunity. I therefore commend the order to the Grand Committee.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
My Lords, that completes the business before the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the room.