Human Rights Act 1998 (Remedial) Order 2019

Baroness Ludford Excerpts

Thursday 3rd September 2020 Grand Committee

[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.