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  4. Human rights damages should be available for more judicial acts: report

Human rights damages should be available for more judicial acts: report

21st November 2018 | human rights

The Human Rights Act 1998 should be amended to ensure that judges can award damages where there is no other effective remedy available for a breach of human rights, including where this was the result of a judge’s actions, a committee of the UK Parliament reported today.

Reporting on the Government's proposed remedial order to amend the Act, the MPs and peers on the Joint Committee on Human Rights say the Government should reconsider its drafting, which they say takes a very narrow approach in applying only to proceedings for comtempt of court.

The order arises from the European Court of Human Rights decision in Hammerton v United Kingdom. The case decided that where Mr Hammerton 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 of the Convention, it was a violation of article 13 that damages were not available to him due to s 9(3) of the 1998 Act, which prevents an award where there has been a breach of the Convention due to a judicial act done in good faith.

In its report the committee states that it shares the Ministry of Justice’s concern to ensure the utmost respect for the principle of judicial independence, and therefore to maintain judicial immunity where this is required. However, it is not convinced that judicial immunity requires UK judges to be deprived of the ability to award damages against the state in the very rare circumstances where no other remedy would be effective for the purposes of article 13 in order to remedy a human rights violation.

The committee does not share the Ministry’s very restrictive reading as to what is required to remedy this human rights violation, but believes it more logical to remedy this incompatibility in a way which enables judges to award damages in those rare cases where no other remedy would be effective for the purposes of article 13.

"In most cases where a judicial act violates an individual’s Convention rights, there will be a possibility of appeal and this normally will be sufficient to provide an effective remedy for the violation", the report notes. "However, in some cases there will be no adequate redress possible and therefore no effective remedy possible other than damages (financial compensation). In the absence of an ability for the courts to award damages in the rare cases where this is required, this can lead to a breach of article 13".

The committee's proposed approach would ensure that an effective remedy would be available in domestic courts without needing recourse to the ECtHR in Strasbourg. It recommends that the minister reconsider the drafting of the remedial order to allow domestic UK judges to award damages in the rare cases where there is no other effective remedy available for a violation of human rights caused by a judicial act.

Click here to access the report.

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