Human Rights Act 1998 (Remedial) Order 2019

Lord Parkinson of Whitley Bay Excerpts

Thursday 3rd September 2020 Grand Committee

[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.