Detention, Damages and Draft Remedial Orders: a look at the Strasbourg case law behind the proposal to amend the Human Rights Act

11 June 2020 by Alex Ewing

When a provision of legislation is held to be incompatible with a Convention right, a Minister of the Crown ‘may by order make such amendments to the primary legislation as he considers necessary’. This power to take remedial action, contained within section 10 of the Human Rights Act (HRA), applies when a domestic court finds an incompatibility with the European Convention on Human Rights (ECHR), and also when the Minister considers a provision of legislation incompatible with the Convention ‘having regard to a finding of the European Court of Human Rights’ (ECtHR). A recent draft remedial order laid before Parliament aims to remedy an incompatibility of the latter kind, following the ECtHR’s judgment in Hammerton v United Kingdom no. 6287/10 ECHR 2016. The draft remedial order is of particular interest because it purports to amend the Human Rights Act itself. 

Professor Richard Ekins, writing for Policy Exchange, has criticised the draft remedial order as ultra vires and ‘of doubtful constitutional propriety’ and argues that the power in section 10 does not authorise ministers to amend the HRA itself. Further, he contends that the Hammerton judgment of the Strasbourg Court – which gives rise to the draft remedial order – is open to question. This blog post seeks to demonstrate that, whatever the merits of the wider argument about the constitutional propriety of amending the HRA through the power in section 10, the Hammerton judgment itself is based on well established ECHR case law. It is suggested that, in so far as it rests on a characterisation of the Hammerton judgment as unreasoned or lacking a reasonable basis, any view that the draft remedial order is of questionable validity is mistaken

Hammerton and the draft remedial order

Hammerton concerned the committal of an individual to prison for contempt of court in circumstances where he was unrepresented during the proceedings. On appeal, the Court of Appeal quashed the findings and the sentence, detailing serious procedural failures by the High Court judge and finding a breach of the applicant’s Article 6 rights in that he was sent to prison without having had the benefit of legal representation.  

The applicant subsequently brought proceedings for damages for the tort of wrongful imprisonment and for breach of his rights under the HRA. Blake J refused the claim at common law because of

long-standing recognition in the case-law that there was immunity from suit for a claim based on alleged errors of a circuit judge of competent jurisdiction that resulted in detention, in the absence of malice (§29).

Similarly, the claim based on the HRA failed because of the statutory bar in section 9(3) in respect of a judicial act done in good faith, save to the extent required by article 5(5) of the Convention. 

When the case came to Strasbourg, the Government claimed that the acknowledgement of a breach of Article 6 at domestic level was sufficient to deprive the applicant of victim status. No damages were required to remedy the breach, it was argued. The ECtHR disagreed. The applicant had suffered ‘lengthened imprisonment’ because of the breach and therefore damages should have been awarded as reparation. Because the applicant had been precluded from claiming damages, at common law and by operation of Section 9(3), the Court found a violation of Article 13 (absence of an effective remedy before a national authority). 

Faced with this finding, the UK Government sought to remedy the incompatibility. was set out in 2018. A proposal for a remedial order was set out in 2018. It proposed to amend section 9(3) of the HRA to cover the very specific circumstances of the Hammerton case, but nothing more.

The Joint Committee on Human Rights suggested a limited expansion of the scope of the remedial order so as to reduce the risk of future violations. The Government adopted this recommendation  and, if approved by Parliament, section 9(3) would now provide that damages may not be awarded in respect of a judicial act done in good faith other than

to compensate a person for a judicial act that is incompatible with Article 6 of the Convention in circumstances where the person is detained and, but for the incompatibility, the person would not have been detained or would not have been detained for so long.

As can be seen, three conditions would require to be met before a judicial act would be caught by the proposed amendment:  

• The act must be incompatible with Article 6 
• There must be a detention 
•  But for the incompatibility the length of detention would have been shorter or there would have been no detention at all (‘lengthened imprisonment’ in the terminology of the European court).

It is argued that the possibility of an award of damages for non-pecuniary loss in the circumstances set out in the draft remedial order is a well established feature of Strasbourg jurisprudence. 

The ECtHR has long made it clear that in determining what amounts to just satisfaction it will not speculate as to what might have occurred had there been no breach of the procedural guarantees of Article 6. Thus in Benham v the United Kingdom 10 June 1996, Reports 1996-III the Grand Chamber found that acknowledgment of a violation was sufficient satisfaction for a breach of Article 6 because it was impossible to determine whether the order for the applicant’s detention would have been made had he been legally represented (see also, among many other authorities, Ezeh and Connors v the United Kingdom (GC) nos. 39665/98 and 40086/98 ECHR 2003-X).

However, in circumstances in which the Court can say with confidence that additional time has been served because of a breach of article 6, it will award damages for non-pecuniary loss. In Perks and Others v the United Kingdom nos. 25277/94 and others 12 October 1999, the Court awarded damages for a breach of article 6 where it was established beyond reasonable doubt that the applicant would not have been imprisoned if he was legally represented. Similarly, in Whitfield and Others v the United Kingdom nos. 46387/99, 48906/99, 57410/00 and 57419/00, ECHR 2005 one of the applicants had been denied representation during a hearing and served five additional days’ imprisonment. He was entitled to damages. In Arat v Turkey [GC], no.10309/03, ECHR 2009 the applicant’s conviction breached article 6. He had already served a substantial part of his prison sentence before the conviction was annulled and therefore the absence of an avenue in domestic law for claiming compensation meant that he retained victim status.

Hammerton was a case in this mould: the ECtHR was able to rely on the High Court’s assessment that a significantly shorter sentence would have been imposed and damages could therefore be awarded. Accordingly, the judgment reflects the application of settled principles pertaining to the award of damages for a breach of Article 6. It was only unusual in the sense that the Court is normally unable to say on the facts that there has been lengthened imprisonment. As such, the finding of a breach of Article 13 was a consequence of the exceptionality of the facts of that case, as opposed to any novel jurisprudential development.

The natural limits of the Court’s approach, or rather the exceptionality of the facts in Hammerton, are illustrated by a recent admissibility decision: Webster v United Kingdom (dec.), no. 32479/16 ECHR 2020. Here, the Court found that an acknowledgment of a breach of Article 6 was sufficient, the Court of Appeal having quashed the applicant’s conviction in the ‘context of the normal application of the criminal appeal’s procedure.’ This was different from Hammerton, where the conviction was already final when examined by the Court of Appeal and, most importantly, where the Court was able to define the consequences of the violation of Article 6 on the proceedings. 

A well-established feature of Convention case law

It can be seen then, that the general principles guiding the award of damages by the Strasbourg Court for violations of Article 6 are well established. The characterisation of the Hammerton reasoning as ‘thin’ or the suggestion that a differently constituted panel may have reached a different conclusion are shown to be mistaken when viewed in the context of the settled Strasbourg case law in this area. The three conditions set out by the proposed remedial order reflect the ECHR jurisprudence. 

This, of course, does not guarantee that the domestic courts would reach the same conclusion as to the propriety of awarding damages in respect of a judicial act in similar circumstances; the duty under Section 2 HRA being only ‘to take into account’ the case law of the ECtHR. But any difference in outcome would not be as a result of the Strasbourg case law being unclear and unsettled (§32 R (Hicks) v Commissioner of Police of the Metropolis [2017] UKSC 9), nor was the judgment in Hammerton ‘consciously going beyond the scope of previous case law’ (§36 Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36). That is not to say that the terms of the draft remedial order put the issue to bed. Awards of damages in circumstances going beyond the limits reflected in the draft order – for example, judicial acts in breach of articles other than Article 6 and in a context outside of detention – are likely to create their own difficulties. We may see Strasbourg’s answers to these issues relatively soon in the communicated case of S.W. v United Kingdom no. 87/18.

For present purposes, it suffices to say that the content of the draft remedial order reflects settled principles of ECHR case law relating to the award of damages for a breach of Article 6 in respect of a judicial act done in good faith. This analysis is not an answer to the wider argument about the constitutionality or propriety of the making of remedial orders to amend the HRA. But it is important to recognise that the remedial order has not come about because decisions about HRA Section 9(3) have been ‘outsourced to a panel decision of the ECtHR’; it has come about because the state of UK law has long been incompatible with consistent ECHR jurisprudence and the Hammerton judgment was recognition of this.