9. Letter to Chairman from Jacqui
Smith MP, Minister of State, Department of Health
Thank you for your letter of 24 October 2001.
I am grateful for the Committee's assistance in identifying important
issues arising from the remedial action being taken under section
of the Human Rights Act 1998 ("the 1998 Act").
We have considered carefully the two aspects
that you highlight on behalf of the Committee. We now intend to
adopt the Committee's recommendation that the urgent procedure
is used by have decided against the inclusion of a statutory compensation
scheme in the remedial order. I will deal below with each of the
points raised in your letter.
We have taken very seriously the Committee's
concern over the procedure chosen in relation to this particular
remedial order. As I have previously stated in correspondence,
the decision as to which procedure was to be used was not a clear
cut one. The decision to adopt the non-urgent procedure was taken
in deference to Parliament. In light of the views of the Committee,
we are content in this case to switch to the urgent procedure
and propose to take the neceesary action within the next week.
The Committee further seeks policy statements
as to the guiding principles that should apply in determining
which procedure is to be used. For my part, I cannot comment beyond
the case in hand, except to say that the views expressed by the
Committee will be considered very carefully by any of my ministerial
collegues who may find themselves proposing future remedial orders.
We 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.
The three options identified 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 (with acknowledgements to the Committee);
or the adoption of an ex gratia scheme.
The option of bringing the remedial order into
effect retrospectively initially appeared attractive 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 was that it would 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. 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.
The latter two options have more similarities
than differences and were considered side by side and, as I said
at the outset, we continue to prefer the ex gratia scheme
In practice, the UK Government will have done
all that would have been required of it had the case been heard
by the ECtHR and not the domestic court. Following a finding of
an article 5 incompatibility by the ECtHR, the UK Government would
have, in all likelihood, undertaken to amend its legislation prospectively
to remove the incompatibility. Compensation would then have been
paid to victims on an informal case by case basis. That is what
is proposed in this case in response to a domestic finding of
article 5 incompatibility. Given that the purpose of the 1998
Act was to incorporate Convention rights into domestic law, it
seems incongruous that a different response would be required
to a domestic finding of incompatibility than a Strasbourg one.
Furthermore, the Government is not aware of any pending proceedings
in Strasbourg in which the Article 5(5) issue is raised. Given
the time limit of six months for bringing a case in Strasbourg,
it is unlikely that there will be any such cases. But, if there
were, and the UK Government had offered a complainant ex gratia
compensation, it is highly unlikely, in the Government's view
that the European Court of Human Rights would regard the complaint
as admissible, since it would be academic on its facts. The difference
between the statutory scheme and an ex gratia scheme is
more theoretical than real.
Moreover, an ex gratia proposal could
allow a degree of flexibility that is unlikely to come from a
statutory scheme. For example, it may be the case that claims
will be entertained under an ex gratia scheme that would
have been rejected as out of time under a statutory scheme. This
would potentially be of benefit to those who might claim compensation.
On a practical note, the adoption of the ex
gratia scheme will allow the remedial order to be transferred
to the urgent procedure without delay. The inclusion of a statutory
compensation scheme at this stage would inevitably lead to delay,
notwithstanding that it was dealt with expeditiously, as such
a scheme would need to be drafted. For my part, I do not see the
justification for introducing such a complex legal structure where
it has little or no practical effect.
I have taken the opportunity to look at what
Ministers said during passage of the Human Rights Bill. In the
House of Lords, 27 November 1997, column 1108, the Lord Chancellor
remarked that ex gratia payments, retrospectivity and the
use of the prerogative might all be appropriate ways to respond
to a declaration of incompatibility. I hope you will agree that
a willingness to make ex gratia payments in this case,
combined with a prospective change in the law, is indeed a responsible
and proper course.
Finally under this head, I note that the Committee
further seeks to know what "different circumstances"
might have led to a different conclusion. Having confined myself
to considering the facts of this case alone, I am afraid I am
not in a position to answer this question.
6 November 2001