8th Report - Proposal for a Remedial Order to amend the Human Rights Act 1998: Judicial Immunity

In our view, the power in section 10 can in principle be used to amend provisions such as section 9(3) of the Human Rights Act 1998 which are not integral to the mechanisms by which the Act gives effect to Convention rights in domestic law. We leave open whether, as a matter of law, a remedial order could be used to make more fundamental changes to those mechanisms. (Conclusion, Paragraph 46)

The Committee agrees with the Government that it is appropriate to rectify the incompatibility as expeditiously as possible. Although Article 13 will only rarely require damages to be awarded as a result of judicial acts, it is undesirable that there should continue to be a legislative impediment to the award of damages in those unusual circumstances. As a matter of general constitutional principle, it is desirable for amendments to primary legislation to be made by way of a Bill. The Committee notes, however, the Government’s view that there is little prospect of finding a suitable Bill which could be used to make the amendment in the near future, and accepts that in the circumstances this may be a “compelling reason” to proceed by way of remedial order. (Conclusion, Paragraph 50)

The Committee accepts that this is not a case where it would be appropriate to use the urgent procedure. (Conclusion, Paragraph 51)

Subject to our wider concerns about the approach taken by the order, the Department should address the specific drafting points that we have identified. (Recommendation, Paragraph 60) Does the proposed order address the incompatibility?

The Committee considers that, in the light of the judgments of the European Court of Human Rights in the Hammerton and SW cases, it cannot realistically be argued that section 9(3) would be compatible with Article 24 13 if it were amended in the very limited manner that the government proposes. There would continue to be occasions where Article 13 would require damages to be available for a breach of the Convention resulting from a judicial act, but where the limited exceptions in section 9(3) would not apply. (Conclusion, Paragraph 77)

It is not tenable to continue making piecemeal amendments to section 9(3) in response to the facts of individual cases. The remedial order should therefore be amended either to create principled exceptions to section 9(3), or to remove the provision in its entirety and make the necessary consequential changes. (Recommendation, Paragraph 78) 25