Human Rights Act 1998 (Remedial) Order 2019
Debate between Lord Faulkner of Worcester and Lord Marks of Henley-on-Thames(4 years, 2 months ago)
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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.