In 2016 the European Court of Human Rights (ECtHR) ruled that our client, Mr Hammerton had suffered a breach of his Article 6 rights when a judge followed the wrong procedure when committing him to prison in family proceedings. However, he was unable to secure an award of damages in the UK because section 9(3) of the Human Right Act 1998 does not allow damages to be awarded for a judicial act done in good faith other than where required by Article 5(5). Although a breach of Article 5 was argued in addition to the Article 6 breach, the ECtHR found (by 3 votes to 2) that Article 5 had not been breached. As a result, the ECtHR also found a breach of Article 13 (the right to an effective remedy) due to Mr Hammerton not being able to secure a remedy for the Article 6 breach in the UK.
The government have now proposed a Remedial Order (which can be found HERE) to correct this incompatibility. However, the wording is so narrow – confining the opportunity to claim damages where a judge causes a breach of Article 6 to the facts of the Hammerton case – that the change in the law is likely to have little or no practical impact.
The amendment says: -
The proposed Remedial Order would make a targeted amendment to the HRA which
would have the effect that:
- in proceedings for contempt of court;
- where a person does not have legal representation, in breach of Article 6 ECHR;
- the person is committed to prison and the breach of Article 6 results in the person
spending more time in prison than they would otherwise have spent, or causes
them to be committed to prison when they would not otherwise have been
then a financial remedy would be available to the person to compensate for the breach of
Article 6 that resulted in the person spending extra time in prison, or caused them to be
committed to prison.
Prior to the Human Rights Act, the Privy Council had established that the approach to construing human rights provisions had to avoid 'the austerity of tabulated legalism'. The same should apply to any need to amend the Human Rights Act when a defect is found.
The proposed amendment is ridiculously limited to the factual situation of Mr Hammerton, and yet the finding in Hammerton, which the government unsuccessfully sought to refer to the Grand Chamber, was about Article 6 generally, not just Article 6 as applicable to a contempt finding.
The government is failing to make rights 'practical and effective', and failing to 'bring rights home': it is simply encouraging people to find other breaches of Article 6 that result in improper detention so that they have to bring a legal case to have a senior judge in the UK or the European Court of Human Rights again say 'Of course the ruling in Hammerton covers this situation as well' and make an adverse finding against the government that will require yet a further remedial order."
While the remedial order sets out that the government are concerned about eroding judicial immunity, it is clear that this remedial order, as drafted, does not go far enough in complying with their duty under Article 46 to implement adverse findings of the ECtHR. The government are not giving effect to the cases clear, wider implications.
Andrew Guile/Kris Gledhill
Posted on Sunday, 5th August 2018