Joint Committee On Human Rights Appendices to the Minutes of Evidence

8.  Letter from Chairman to Jacqui Smith MP, Minister of State, Department of Health

Proposal for a Draft Remedial Order to amend the Mental Health Act 1983, sections 72 and 73

  The Committee is grateful to you for your letter of 15th October 2001 responding to the questions in my letter to the Secretary of State relating to the proposal for a Mental Health Act 1983 Remedial Order. The Committee considered your response at its meeting on 22 October, and has asked me to seek your views on two aspects of it. The first is a technical question of compliance. The second is a more political question about the choice of procedure.

  First, the Committee is not persuaded by the argument advanced in your letter 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). 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. 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.

  The Committee believes 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. The Committee considers that the remedial order could properly provide 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 is what you already suggest would be the principle applying to the calculation of any ex gratia award.

  The Committee notes that 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'. [1]

  In the light of these considerations, the Committee wishes to know—

    (i)  whether on reflection you consider that the making of a remedial order without including provision for an enforceable right to compensation risks a further finding of incompatibility; and

    (ii)  what considerations of policy led you to conclude that a non-statutory scheme was the more desirable route to choose in this particular case, and in what different circumstances might you judge this to be an inadequate provision.

  Second, the Committee remains concerned about the decision to use in this case the non-urgent procedure rather than the urgent procedure to make a remedial order. In your response you advance two arguments in support of this decision—that there is no evidence that anybody has been wrongly detained because of this incompatibility, and that the desirability of fully involving the Committee and others in the process outweighted any possible urgency.

  It may well be, as you argue in your letter, that nobody is directly affected by the incompatibility identified by the Court of Appeal. Nonetheless, the Committee considers that, save in exceptional circumstances, 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. The possibility that the detriment is only hypothetical should not be regarded as sufficient grounds for overriding this principle.

  The Committee notes that a remedial order made under the urgent procedure would still be subject to its scrutiny, albeit retrospectively. The procedures set out in Schedule 2 to the Act are designed precisely to enable urgent action to be combined with effective scrutiny.

  The Committee's view that the urgent procedure would have been compatible with effective scrutiny is strengthened by the recognition that the change in the law proposed is relatively simple and uncontroversial (despite our reservations on the compensation question).

  In the light of these considerations, the Committee wishes to know—

    (i)  whether you would now reconsider your decision on the appropriateness of the non-urgent procedure to the circumstances of this case; and

    (ii)  what guiding principles you consider should apply in determining which procedure to choose.

  It would of course be possible for you to proceed with a urgent remedial order even at this stage, enabling the incompatibility to be remedied some two or three months earlier than otherwise will be possible. While the Committee appreciates your wish to facilitate its scrutiny of the proposal for a draft remedial Order, it would be clearer that this involvement is being taken seriously were the draft Order (or urgent procedure order) when laid to contain provision for an enforceable right to compensation.

  In order to report to each House within the statutory period set out in Schedule 2 to the Act (which expires on 23 November), the Committee must agree its report at its meeting on 19 November. I must therefore ask that your response to this letter is with me at the very latest by 9 November.

24 October 2001

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

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