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Human Rights Act Remedial Order welcomed by Committee

20 March 2020

In a new report published today, the UK Parliament's Human Rights Committee welcomes the Government's Draft Human Rights Act 1998 (Remedial) Order 2019, which will ensure that the Human Rights Act 1998 allows a person whose human rights have been violated to have an effective remedy, even where this was due to a judicial act done in good faith.

Why current law is incompatible with Human Rights law

Section 9(3) of the Human Rights Act 1998 is incompatible with Article 13 ECHR (right to an effective remedy) because, in very specific circumstances, it deprives an individual of an effective remedy for a human rights violation. Section 9(3) HRA seeks to establish a delicate balance between ensuring that individuals have an effective remedy for a breach of their human rights whilst also preserving judicial immunity which underpins the principle of the independence of the judiciary.

The European Court of Human Rights (ECtHR) found, in the case Hammerton v United Kingdom, that it was a violation of Article 13 ECHR for a person not to have recourse to damages for a violation of a Convention right if there was no other remedy available that would be effective in the circumstances of that case. The circumstances of the case involved a person, Mr Hammerton, who had been committed to prison for contempt of court, for a longer period of time than he would otherwise have been due to a judicial act which did not allow him rights under Article 6 (right to a fair trial)

Therefore in this very specific set of circumstances the delicate balance which section 9(3) HRA seeks to establish was not met and it needs to be amended to correctly reflect that balance.

Purpose of Remedial Order

The Government laid this revised draft Remedial Order to remedy the human rights incompatibility in s. 9(3) of the Human Rights Act 1998.

The Joint Committee on Human Rights' view: Remedial Order welcomed

In a report published today examining the Government's proposed Remedial Order to amend the Human Rights Act 1998, the Joint Committee on Human Right, a Committee, made up of MPs and Peers and chaired by Harriet Harman MP, welcomes the Government's Remedial Order (a form of secondary legislation that corrects an incompatibility in UK Law with basic human rights). The Committee is pleased that the revised draft Remedial Order remedies the incompatibility of the legislation with the right to an effective remedy that was identified in Hammerton v UK and recommends that it should be approved by both Houses. The Committee does not, however, rule out the possibility of other judicial acts done in good faith leading to a violation of a Convention right in the future in circumstances where an effective remedy may not be available, but such situations are difficult to foresee.

Further information

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