Draft Human Rights Act 1998 (Remedial) Order 2026
(1 day, 9 hours ago)
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The Minister for Courts and Legal Services (Sarah Sackman)
It is a pleasure to serve under your chairship, Sir Desmond. The draft remedial order implements the decision of the European Court of Human Rights in the case of SW v. the United Kingdom. The order amends section 9(3) of the Human Rights Act 1998 to make damages available in relation to judicial acts done in good faith where the judicial act breaches the requirements of procedural fairness under article 8 of the European convention on human rights. The Government consider that amending section 9(3) in this way is the appropriate approach that ensures we meet our international obligations while respecting the principle of judicial immunity.
The background to SW v. the United Kingdom is as follows: the particulars in the case are that the applicant was a social worker who acted as a professional witness in childcare proceedings in the family court. The family court judge made adverse findings in his judgment as to the professional conduct of SW without giving the applicant adequate opportunity to respond and directed that the judgment be sent to the local authority to which the applicant was then assigned. The applicant’s assignment within the local authority was subsequently terminated.
In November 2016 the Court of Appeal found that the applicant’s article 8 rights had been infringed and set aside the findings. However, the applicant was unable to obtain damages due to section 9(3) of the Human Rights Act, which prevents the payment of damages for judicial acts done in good faith except in very limited circumstances. In 2021 the European Court of Human Rights subsequently found that there had been a breach of article 13 of the convention, which is the right to an effective remedy when read together with article 8. This is because the applicant did not have access to an effective remedy at the national level capable of addressing the substance of her article 8 complaint and by which she could obtain appropriate relief. The European Court of Human Rights awarded a sum in damages which has now been paid. We are obliged, as a matter of international law, to implement this judgment, which in this case requires legislative change to ensure that similar violations will not arise again in future.
The Human Rights Act contains powers in section 10 and schedule 2 to make amendments to legislation via a remedial order to address findings of the European Court of Human Rights. On 17 July 2025, the Government laid a proposal for a draft remedial order to make the necessary amendment to the Human Rights Act. The Government consider that this represents an appropriate measure to implement the findings of a breach of article 13 on the facts of this case. In November 2025, the Joint Committee on Human Rights reported on the draft remedial order. We are grateful for the Committee’s scrutiny and for accepting that this is a valid use of the power to make a remedial order and address the specific breach of article 13 that the Court identified in SW.
The Joint Committee was of the view that the proposed amendment was too narrowly drafted to prevent future breaches of article 13 where judicial acts infringe on convention rights. It recommended amending the order either by introducing principled exceptions to section 9(3) or considering removing the provision entirely alongside a number of other recommendations to amend the drafting. While we recognise the Joint Committee’s recommendation to go further, having examined these concerns carefully the Government decided to continue with the current approach for the order and implemented small drafting changes in response.
The implementation of this judgment should not be delayed any further as it has already been five years since the judgment became final. We have taken care to ensure that the draft remedial order appropriately addresses the incompatibility identified by the Court in SW while respecting the principle of judicial immunity. While the remedial order has not been amended as recommended by the Joint Committee on Human Rights, we have committed to undertake a review of the operation of section 9(3) separately to the implementation of this judgment in consultation with the judiciary, the Joint Committee on Human Rights and other relevant parties. I want to express my gratitude to the Joint Committee for its scrutiny of the proposal and its careful consideration of the more recent draft order. We welcome the Joint Committee’s recommendation that both Houses approve the order.
Hon. Members will have heard me mention the need to protect the principle of judicial immunity, and I just want to say a few words about that. Judicial immunity is a long-established common-law principle. An independent and impartial judiciary is one of the cornerstones of a democracy, and judicial immunity is an important safeguard of that independence. It protects judges from personal liability arising from acts carried out in the exercise of their judicial functions. Officials have had continued engagement with the judiciary during the drafting of this remedial order to ensure that they were fully sighted on our plans.
Given that the Human Rights Act applies to the whole of the United Kingdom, this order will apply UK-wide. Officials have been in contact with the devolved Governments during the process of drafting the order.
The draft order will ensure that damages may be awarded under the Human Rights Act in respect of a judicial act done in good faith where the judicial act is incompatible with article 8 on the grounds that it was done in such a procedurally defective way as to amount to a breach of the requirement to procedural fairness under that article.
Sarah Bool (South Northamptonshire) (Con)
It is a pleasure to serve under your chairmanship, Sir Desmond. As the Minister has set out, the regulations are being laid to implement the European Court of Human Rights’ judgment in SW v. United Kingdom, application number 87/18, to allow for damages in respect of a judicial act done in good faith where the judicial act is incompatible with article 8 of the European convention on human rights on the right to respect for a private and family life.
We are here today because, under section 4 of the Human Rights Act, when a provision of legislation is found to be incompatible with the ECHR a Minister may, under section 10, make an order to make such amendments to the legislation as the Minister considers necessary to remove the incompatibility. Remedial orders are therefore powerful legislative instruments used to amend primary legislation.
I wonder about the decision taken to make this change using a remedial order rather than primary legislation, given the time that has passed. The family court laid down its judgments in 2014 and the Court of Appeal in 2016, and the European Court made its ruling in 2021. The Government have argued the rationale is that they
“consider there is little prospect of finding suitable primary legislation to make an amendment in the near future”—
which is perhaps more revealing of the quality and suitability of much of the Government’s legislation during this Parliament. It is important to remember that the limitation in the Human Rights Act on the availability of damages in proceedings in respect of a judicial act done in good faith is there to preserve the principle of judicial immunity, a principle that is a key aspect of judicial independence—a cornerstone of a democracy. Any amendments to it therefore have to be carried out with the greatest care and consideration.
The debate today demonstrates the challenges that are faced by the two sovereign powers of the EU and the UK. It is becoming increasing clear that the ECHR repeatedly ties Ministers’ hands, blocking the democratic decisions of this place and frustrating the will of our constituents. The prime example: over 83,000 people have crossed the channel under Labour. I am afraid that the Government may have to recognise that as long as we stay shackled to the ECHR, foreign criminals can use the courts to block deportation, meaning that we will never be able to deter illegal channel crossings—[Interruption.] Do not worry, Sir Desmond, I am moving on.
I highly recommend to any member of the Committee the report by Lord Wolfson, the shadow Attorney General, on our position on the ECHR. As he says himself,
“the ECHR places significant legal constraints on the Government’s ability”
to address issues such as immigration. Leaving would allow us to
“legislate freely on any of the issues raised in this paper, without being tied to the expansive interpretation of human rights that has been developed by the European Court of Human Rights”
For as long as the European Court of Human Rights regards the ECHR as
“a ‘living instrument’ such that its decisions, and in consequence those of domestic courts, are not constrained by the actual wording of the ECHR itself”
we will have problems.
As a society, we can either continue to pass statutory instruments and orders piecemeal, as we are today, as the EU’s jurisprudence expands, or we can take decisive actions based on our own laws and the strength of this place.
Sarah Sackman
How regrettable that the Opposition could not waste an opportunity to engage in the point scoring rather than problem solving that is their ordre du jour. How sad, too, that their memories are so short—David Maxwell Fyfe, the distinguished Conservative jurist, was one of the architects of the European convention, which was such an important part of the post-war settlement and is now a vital pillar of documents such as the Good Friday agreement, which is so important to peace within these isles. It is so sad to see the Opposition seek to ally this country with the likes of Belarus, which is not a democracy in which I would care to live.
Sarah Bool
I invite the Minister to acknowledge that the interpretation the ECHR has expanded far beyond what was intended when it was first created in that post-war period.
Sarah Sackman
The ECHR contains some pretty basic principles: the right to privacy and the right to fair proceedings and a fair hearing. The Human Rights Act, one of the achievements of the previous Labour Government, brought rights home so that British people could enforce those universal inalienable rights in our domestic courts. How far the Conservative party has drifted. Here we are, seeking to make a forensic but much-needed remedial order, yet instead we hear bombast about ripping up the ECHR, together with the Good Friday agreement, to end up much like Belarus, one of the few countries outside the ECHR.
Anyway, here we are. Those are the political dividing lines and I commend the order to the Committee.
Question put and agreed to.