Joint Committee On Human Rights Sixth Report


The Joint Committee on Human Rights has agreed to the following Report:—



1. In this Report to each House, as we are required by our standing orders to do, we make our recommendation as to whether the Mental Health Act 1983 (Remedial) Order, which was made on 18 November 2001 and laid before Parliament on 19 November, should be approved. The standing orders also permit us to report on matters arising from our consideration of the Order, and this we also do.

2. This report is the first occasion on which the JCHR has been required to perform this duty on behalf of Parliament. In an accompanying report[5] we therefore set out in more detail the procedures applying to the making of remedial orders, and our duties in relation to them, for the information of Members of both Houses and others. We also draw some lessons from this first occasion to be applied in the future.

The Original Proposal and Consultation by the Committee

3. A Proposal for a draft Remedial Order to amend sections 72 and 73 of the Mental Health Act 1983 was laid before Parliament on 19 July 2001. It was the first such Proposal to be made under section 10 of and Schedule 2 to the Human Rights Act.

4. At its meeting on that same day the Committee authorised the Chairman to write to a number of interested parties inviting their views on the Proposal,[6] and to the Secretary of State for Health seeking answers to a number of specific questions. The process of consultation was also advertised by means of a press notice. Responses were requested by 15th October.

5. Only a small number of the non-governmental organisations and individuals invited to comment responded—probably an indication of the uncontroversial nature of the Proposal. Their submissions are published within this report.[7] A response to the Committee's specific questions was received from the Health Minister responsible, Jacqui Smith MP, on 15 October.[8] After considering the comments of the respondents, and the Minister's response, the Committee wrote again to the Minister with further questions.[9] Her reply to these was received on 8 November.[10]

Withdrawal of the Proposal and the Making of the Urgent Procedure Order

6. In her second letter, dated 6 November, the Minister informed us that, in response to this Committee's comments, she was withdrawing the Proposal to lay a draft order[11] and was instead making an urgent procedure Order. This urgent procedure Order was laid before Parliament on 19 November.[12] Its substantive provisions are identical to those contained in the Proposal laid on 19 July. We are therefore now making this report under the urgent procedure rules set out in paragraph 4 of Schedule 2 to the 1998 Act, and under paragraph (4) of Standing Order No. 152B of the House of Commons and the cognate provision of the order of the House of Lords of 3 July 2001.

Recommendation of the Committee

7. The standing orders permit this Committee three options in reporting to the House on an urgent procedure order.[13] We consider that the Order made on 18 November remedies the incompatibility in the provisions of the Mental Health Act 1983 identified by the Court of Appeal in its declaration of 4 April 2001. We recommend that the Mental Health Act 1983 (Remedial) Order 2001 should be approved by each House in the form in which it was originally laid before Parliament.

8. The standing orders also require us to examine the Order against the tests applied by the Joint Committee on Statutory Instruments to other statutory instruments.[14] We find no reason to draw the special attention of either House to the Order on any of those grounds.

9. However, the standing orders permit us also to report on matters arising from our considerations, and this we now go on to do.

The Remedial Order


10. The Order which has now been made, and which came into effect on 26 November, amends sections 72 and 73 of the Mental Health Act 1983 to remove an incompatibility between those sections and the right to liberty under Article 5 of the ECHR. A declaration of incompatibility was made (under section 4 of the Human Rights Act 1998) by the Court of Appeal in R. (H.) v. Mental Health Review Tribunal, North and East London Region on 4 April 2001.[15]

11. In that case, the Court of Appeal held that sections 72 and 73 of the 1983 Act had prevented the tribunal from ordering the release of a compulsorily detained patient unless the patient could satisfy the tribunal that the criteria for detention were no longer met. By contrast, Article 5(1) of the ECHR[16] was held to require that nobody should continue to be detained unless the tribunal were satisfied that the criteria for detention continued to be satisfied. Placing the burden of persuasion on the patient was held by the Court to violate the patient's right under Article 5(1).

12. As section 4(6)(a) of the Human Rights Act provides, the 1983 Act remained valid and effective despite any incompatibility with Convention rights. The patient had no procedure whereby his release could be ordered. The Court of Appeal held that this violated his right under Article 5(4) of the ECHR to take proceedings to test the lawfulness of this detention,[17] because under that Article the lawfulness of detention must be judged by reference to Convention standards (as well as the requirements of national law). Since sections 72 and 73 of the 1983 Act prevented the Tribunal from ordering the release of a patient in circumstances under which continued detention would not be justified under Article 5(1), it followed that there was an a violation of the right to a procedure for ordering the patient's release under Article 5(4).

13. The effect of the Remedial Order is now to have replaced sections 72 and 73 of the 1983 Act with new provisions which make it clear that Tribunals must order the release of patients unless satisfied that the criteria for detention continue to be met.


14. As we described above, the Department of Health originally proposed that the Order be made under the non-urgent procedure, and the preliminary Proposal paving the way for a draft Order was laid before the House on 19 July 2001. We wrote to the Secretary of State for Health seeking answers by 15 October to a number of questions we had about the Proposal. These questions were—

  • how many patients were thought to be adversely affected by the incompatibility established in the decision of the Court of Appeal in R. (H.) v. Mental Health Review Tribunal, North and East London Region;

  • why the Department decided to proceed by way of the non-urgent procedure, rather than the urgent procedure, in relation to an incompatibility which continues to affect the liberty of at least some individuals;

  • what representations the Department of Health had received in relation to the Proposal for a Draft Remedial Order.

15. The Minister of State at the Department of Health, Jacqui Smith MP, as the Minister with responsibility for the mental health legislation, gave a holding reply on 27 September 2001 and a fuller response was received on 15 October 2001. It is printed with the Appendices to this Report.[20]

16. We also wrote to a number of individuals and organizations with expertise in the field of mental health, seeking their views on the merits of the Proposal.[21] The respondents all accepted that the proposed Draft Remedial Order would be effective in removing the incompatibility identified in the Court's declaration of incompatibility. The Law Society considered that the matter should have been dealt with under the urgent procedure rather than the non-urgent procedure,[22] and suggested that the Committee might ask the Department about criteria for deciding when a case is urgent. This, as noted above, we had already done.

17. Two respondents noted equivalent potential incompatibilities in other legislative provisions: Professor Richardson referred to the provisions of section 72(4) of the 1983 Act on guardianship, and suggested that there was a general question about the relationship between the criteria for release and the criteria for initial detention, particularly 'treatability', under sections 3 and 37;[23] while Liberty referred to the provisions concerning release by the Parole Board of discretionary life sentence prisoners under the Crime (Sentences) Act 1997, section 28(6).[24] These are matters which are outside the scope of the current inquiry, as there is no statutory provision for a remedial order to be made in respect of a statutory provision which has not itself been held to be incompatible with a Convention right by either the European Court of Human Rights or a court in the United Kingdom granting a declaration of incompatibility. However, we have taken note of the suggestions. No doubt the Department of Health will wish to take account of the point on guardianship, and the Home Office will wish to take account of the issue relating to the Parole Board. We draw these matters to the attention of each House, in the hope that the Government will look into the need for making amendments to the legislation at the first opportunity in order to minimise the risk of related incompatibilities being held to exist in other legislation.


18. Having considered the Proposal and the responses of the Minister and others who wrote to us, we asked ourselves the following questions.

-    Had the conditions for making a remedial order been met? The conditions appeared to have been met, in view of the fact that none of the parties to the decision of the Court of Appeal was seeking to appeal to the House of Lords against the making of the declaration of incompatibility.[25]

-    Were the reasons for proposing to proceed by remedial order rather than by primary legislation compelling? Although the Government has declared its intention of revising and replacing the 1983 Act soon, in view of the pressure on the legislative timetable, we consider that it was appropriate in this case to use the more expeditious means of removing an incompatibility. We say more about this in our companion Report on the making of Remedial Orders.[26]

-    Had the Department of Health responded adequately to the questions raised by the Committee? With the exceptions set out below it appeared to have done so.

-    Did the document containing the proposal provide the information required by the Human Rights Act 1998? It appeared to do so.

-    Did the terms of the proposed draft remedial order remove the incompatibility and are they appropriate? We concurred with all the respondents to our consultation that the terms of the proposed Order are effective in removing the incompatibility with Article 5(1) and (4), and were appropriate for that purpose. No-one has dissented from this view.

However, there were two qualifications to our otherwise positive conclusion.


19. We considered that there was a strong probability that the failure to make provision for compensating as of right anyone who proves to have been a victim of detention in violation of Article 5(1) and (4) leaves open a serious risk of incompatibility with Article 5(5). As noted above, Article 5(5) provides that—

Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

The letter from the Minister of 15 October stated that compensation would be paid on an ex gratia basis. While accepting that a legally enforceable right might have been preferable, the Minister said—

...we believe that an ex gratia response is appropriate here, in the short term, where the detention is not unlawful domestically.[27]

20. However, Article 5(5) requires an enforceable right to compensation for detention 'in contravention of the provisions of this article' of the ECHR, whether or not the detention is also unlawful as a matter of domestic law.

21. After due deliberation, therefore, we decided to press the Department on the question of including a provision in the Order allowing a person detained in breach of Article 5 by virtue of the previously incompatible legislation to claim compensation as of right. We believed that this simple provision would be unlikely to lead to a significant number of claims, in view of the information given by the Minister in her letter about the number of patients affected by the incompatibility. We also believed it would do much to guard against an adverse finding by the European Court of Human Rights and a further declaration of incompatibility in the national courts.[28]

22. We therefore wrote again to the Minister saying that we were not persuaded by the argument that an ex gratia payment for any victim of the incompatibility (that is someone who had been detained in violation of Article 5 of the ECHR) would meet the United Kingdom's obligations under Article 5(5). The obligations apply in respect of people in the United Kingdom, even if a breach of them does not give rise to a cause of action in domestic law. We asked the Minister whether, in the light of these considerations, she would reconsider whether the making of a remedial order without including provision for an enforceable right to compensation risked a further finding of incompatibility. We also asked what considerations of policy had led her to conclude that a non-statutory scheme was the more desirable route to choose in this particular case, and in what different circumstances she might have judged this to be an inadequate provision.

23. The Minister responded in a letter dated 6 November.[29] She did not accept our recommendation that the Order should include a statutory compensation scheme, arguing that the Department had—

... identified three options that would enable compensation of those individuals, if any, who have been detained contrary to the Convention as a direct result of the incompatibility identified by the Court of Appeal in the case of H. Having considered each option in considerable detail, we have concluded that the ex gratia scheme outlined in earlier correspondence is the most practical and effective way of compensating any victims of the incompatibility.

24. The three options identified by the Department were: to make the Remedial Order retrospective in effect (under paragraph 1(1)(b) of Schedule 2 to the 1998 Act); the inclusion of a statutory compensation scheme in the remedial order; or the adoption of an ex gratia scheme.

25. The Minister recognised the attraction of bringing the Remedial Order into effect retrospectively because it would indirectly have created a cause of action under the 1998 Act for all those who had been detained contrary to the Convention. However, the drawback identified by the Department was that it might also have led to complaints by those patients whose detention did not in fact breach the Convention. Whilst these latter patients should not succeed ultimately in any legal proceedings they brought (on the basis that the question of who bore the "burden of proof" in law did not affect the outcome) they would nonetheless have the right to test this before the court. The Department believed this would create a great deal of uncertainty, potentially for a long time into the future, as old cases before the Mental Health Review Tribunal were re-litigated in the courts.

26. After considering the relative effect of a statutory and an ex gratia compensation scheme, the Department remained convinced that the latter was the preferable route. They asserted that by introducing such a scheme, the Government will have done all that would have been required of it had the case been heard by the European Court of Human Rights and not the domestic court, and they argued that given that the purpose of the 1998 Act was to incorporate Convention rights into domestic law, it would be incongruous that a different response would be required to a domestic finding of incompatibility than a Strasbourg one. In the Government's view, the difference between the statutory scheme and an ex gratia scheme is more theoretical than real.

27. More persuasively to our mind, the Department argued that an ex gratia proposal could allow a degree of flexibility that was unlikely to come from a statutory scheme, and that claims could be entertained under an ex gratia scheme that would have been rejected as out of time under a statutory scheme. They also argued that the adoption of the ex gratia scheme would allow the remedial order to be transferred to the urgent procedure without delay.

28. However, we continue to believe that the failure to include in the remedial order a provision allowing a person detained in breach of Article 5 by virtue of the previously incompatible legislation to claim compensation as of right would automatically give rise to a violation of Article 5(5) if it proved that that person had been affected by the incompatibility. We remain of the view that the remedial order could have properly provided that the level of compensation would be calculated in accordance with the principles set out in section 8(4) of the Human Rights Act 1998 (that is taking into account the principles applied by the European Court of Human Rights when awarding compensation)—which the Department has already suggested would be the principle applying to the calculation of any ex gratia award.

29. The Minister, perhaps not unreasonably, declined our invitation to speculate as to under what 'different circumstances' she might have drawn a different conclusion.


30. We had also asked the Minister in our first letter whether she was convinced that it was desirable for the remedial order to be made by the non-urgent procedure rather than the urgent procedure. We took the view that, where the liberty of the individual is at stake, the matter should always be regarded as urgent. Under the non-urgent procedure, it was likely to be February or perhaps March 2002 before the change in the law could take effect, about eleven months after the Court of Appeal decided that the Tribunal was unable to protect the Convention rights of compulsorily detained patients.

31. In her initial response of 15 October, the Minister had countered first, that there was no compelling evidence that any individual was being detained unreasonably (and, in amplification, that if any were the numbers were very small) and second, that the desirability of fully involving the Committee and Parliament in the process outweighed any such potential risk.

32. Despite these arguments we took the view (also advanced by the Law Society) that this was an unnecessarily and undesirably slow response to a threat to the liberty of the individuals concerned, and that it would be desirable to withdraw the present Proposal and proceed instead to make an Order under the urgent procedure.

33. We considered that there should be a presumption that the remedying of any incompatibility which could affect the liberty of the individual should be regarded as an urgent matter. We also considered that the possibility that the detriment was only hypothetical should not be regarded as sufficient grounds for overriding this principle.

34. We also noted that a remedial order made under the urgent procedure would still be subject to scrutiny by this Committee, albeit retrospectively. Our view that the urgent procedure would have been compatible with effective scrutiny was strengthened by the recognition that the change in the law proposed was relatively simple and uncontroversial (despite our reservations on the compensation question). In the light of these considerations, we asked the Minister whether she would reconsider her decision on the appropriateness of the non-urgent procedure to the circumstances of this case; and what guiding principles she considered should apply in determining which procedure to choose.

35. In her reply of 6 November, the Minister accepted our argument and indicated her intention of withdrawing the Proposal to lay a draft Order and instead to make an urgent procedure Order. This she did. However, she said that she was not in a position to answer the question as to in what different circumstances she would have chosen differently.

36. The Remedial Order came into effect on 26 November, and the incompatibility is now remedied. It is therefore this Order that each House must decide whether or not to approve before the end of the 120 day period from its making on 18 November.


37. We welcome the decision to reintroduce the proposal for a remedial order by way of the urgent procedure. As we set out above, the change in the law which has now come into effect remedies, in narrow terms, the incompatibility identified by the court in its declaration. For this reason, we have recommended that the order be approved by each House in the form in which it was originally made.

38. We are disappointed that the Minister was unable to agree to the inclusion of a statutory compensation scheme within the Remedial Order. A Minister has power, when making a remedial order, to include 'such incidental, supplemental, consequential or transitional provision as the person making it considers appropriate', and to make it have effect 'from a date earlier than that on which it is made'.[30] We remain of the opinion that the inclusion of a statutory compensation scheme in the Remedial Order would have been appropriate. However, since this provision would have been to forestall a further finding of incompatibility rather than to remedy the narrower point identified by the Court of Appeal in this case, we shall not insist on our view. It will be for the courts to decide, should a case come before them in the future. Meanwhile, we trust that the proposed ex gratia scheme will be applied justly and appropriately. If it is, that may itself forestall any further legal challenge.

5   Seventh Report of Session 2001-02, Making of Remedial Orders, HL Paper 58/HC 473 Back

6   For a full list of those written to, see Annex to this Report Back

7   See Appendices, pp 1, 2 and 4 Back

8   See Appendix, pp 2-4 Back

9   See Appendix 8, pp 4-5 Back

10   See Appendix 9, pp 5-6 Back

11   This was done on 9 November Back

12   S.I., 2001, No. 3712 Back

13   These are: (a) that the order should be approved in the form in which it was originally laid before Parliament; or (b) that the order should be replaced by a new order modifying the provisions of the original order; or (c) that the order should not be approved. Back

14   See SO. No. 151(1)(B) of the House of Commons and S.O. No. 73 of the House of Lords Back

15   [2001] 3 W.L.R. 512, C.A. Back

16   Article 5(1), so far as relevant, provides, 'Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law

... (e) the lawful detention of ... persons of unsound mind.' Back

17   Article 5(4) provides, 'Everyone who is deprived of his liberty by arrest of detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.' Back

18   Article 5(5) provides, 'Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.' Back

19   Article 13 provides, 'Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.' This is not one of the rights forming part of the law in this country under section 1 of the Human Rights Act 1998, but it binds the United Kingdom in international law and can be asserted by a victim before the European Court of Human Rights. Back

20   See Appendix 6, pp 2-4 Back

21   See Annex to this Report Back

22   See p 2 Back

23   See p 1 Back

24   See p 2 Back

25   Although the Committee might entertain doubts as to the conclusion of the Court of Appeal that sections 72 and 73 of the Mental Health Act 1983 cannot be interpreted in a manner compatible with Article 5 of the ECHR, it would probably be inappropriate for a parliamentary Committee to express doubts about the legal correctness of a judicial decision on a matter of law. The Committee has consistently taken the view that it is the job of the courts, rather than the Committee, to make final decisions about the interpretation of the Convention rights, the Human Rights Act 1998, and other legislation. Back

26   op cit Back

27   See p 4 Back

28   There is a wider question concerning the availability of compensation for unlawful detention of mental patients under the Mental Health Act 1983, section 139, which prevents civil proceedings being brought for acts done in pursuance of the Act unless the act was done in bad faith or without reasonable care, but that cannot be addressed in the context of the present remedial order. Back

29   See Appendix 9, pp 5-6 Back

30   Human Rights Act 1998, Sch. 2, para. 1(1)(a), (b)


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