Comments are being invited on a proposed amendment to the Human Rights Act 1998 to cure a defect exposed by an English contempt of court case.
William Hammerton won a case against the UK at the European Court of Human Rights after his committal to prison for contempt of court by throwing eggs at a judge against whom he bore a grudge. It was subsequently held that had he been legally represented, he would have received a shorter sentence, and there had been a breach of his right to a fair trial under article 6 of the Convention. But the effect of s 9(3) of the Act was that no damages could be awarded, as this prevents awards in respect of a judicial act done in good faith, in order to preserve the principle of judicial immunity. The section preserves a right to compensation for breaches of article 5 (right to liberty), but as it was article 6 that was held to have been infringed in Mr Hammerton's case, no award could be made.
The Strasbourg court found that this led to a violation of article 13 of the Convention (right to an effective remedy), and awarded compensation of £6,000.
Section 10(2) of the Human Rights Act allows legislation found to be incompatible with the Convention to be amended by remedial order rather than primary legislation, where "compelling reasons" exist. The Government considers that the current pressure on the legislative timetable – dominated by Brexit-related legislation – means there is little prospect of finding suitable primary legislation to make an amendment in the near future, and has laid a draft remedial order before Parliament.
The order would have limited application. It would have the effect that in proceedings for contempt of court, where a person does not have legal representation, in breach of article 6 of the Convention, and 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 committed, a financial remedy would be available to the person to compensate for the breach of article 6 that produced that result.
The draft order was laid before Parliament on 16 July, and representations may be made to the Government within 60 days (by 14 September): see this paper for further information. The UK Parliament Joint Committee on Human Rights has also begun an inquiry into the proposal and has invited views by 30 September: click here for further information.