Human Rights Act 1998 (Remedial) Order 2026

Lord Lemos Excerpts

Wednesday 28th October 2026 Grand Committee

Moved by

[Lord Lemos]

That the Grand Committee do consider the Human Rights Act 1998 (Remedial) Order 2026.

Relevant document: 1st Report from the Joint Committee on Human Rights

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Lemos) (Lab)]

The draft remedial order was laid to implement the decision of the European Court of Human Rights in the case of SW v the United Kingdom. It 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—the right to respect for private and family life—of the European Convention on Human Rights. The Government consider that amending Section 9(3) in this way is the appropriate approach to ensure that we meet our international obligations, while respecting the important principle of judicial immunity.

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 on 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 with the local authority was subsequently terminated.

In 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—the right to an effective remedy—read together with Article 8. The breach arose 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 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 in the future. The Human Rights Act contains powers in Section 10 and Schedule 2 to make amendments to legislation via a remedial order to address the 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 considered that this addressed the specific findings of the court.

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, which addresses the specific breach of Article 13 identified by the court in SW. The Joint Committee on Human Rights was of the view that the proposed amendment was too narrowly drafted to prevent future breaches of Article 13 where judicial acts infringe upon 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 recommendations to amend the drafting.

While we recognise the committee’s recommendation to go further, having examined these concerns carefully, the Government have decided to continue with the current approach for the order, and have implemented small drafting changes in response. The implementation of this judgment should not be delayed any further as it has 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 v UK while respecting the principle of judicial immunity.

Although the remedial order has not been amended as recommended by the Joint Committee on Human Rights, we have committed to undertaking 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 am grateful to the Joint Committee on Human Rights for its scrutiny of the proposal and its careful consideration of the more recent draft order that has been laid. We welcome the Joint Committee’s recommendation that both Houses approve the order.

Noble Lords will have heard me mention the need to protect the principle of judicial immunity, which 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. Officials have had continued engagement with the judiciary during the drafting of the remedial order to ensure that it was fully sighted on our plans.

Finally, given that the Human Rights Act applies to the whole of the United Kingdom, this order would apply UK-wide. Officials have been in contact with the devolved Governments during the process of drafting this amendment.

This draft order ensures 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 requirements of procedural fairness under that article. I beg to move.

[Lord Bellamy (Con)]

My Lords, I thank the Minister for his introduction and, more importantly, place on record that I was the Minister in the previous Government who held the posts that the noble Lord now holds. This proposed statutory instrument—or an instrument along these lines—came before me at the time and I declined to allow the department to proceed with a statutory instrument, not on the basis that we should do nothing to implement the relevant judgment of the Court of Human Rights but on the basis that it should be done by primary legislation and that the statutory instrument rule is quite wrong for this kind of instrument.

I relied particularly on two things. In 2021, as noble Lords will recall, the then Government commissioned a review of the working of the Human Rights Act 1998, chaired by Sir Peter Gross, who had a distinguished panel in support and came out with an impressive report. A major recommendation of that report was that, although one can have remedial orders to amend various Acts of Parliament, that should never be done in relation to the Human Rights Act itself, because that is the foundation stone of the whole system and a foundational Act by Parliament, so amendments to the Human Rights Act itself should be done only by primary legislation. I was not, as the Minister, prepared to go against that very important recommendation and constitutional safeguard. That was the first reason.

The second reason was that this instrument has profound constitutional implications anyway. As the Minister has just said, the principle of judicial independence is a foundational principle of our constitution. In order to protect judicial independence, we have for centuries held that judicial acts made in good faith are immune from damages. That is also a foundational principle of the constitution, and again I took the view that if one was going to modify or weaken that principle, that should be done by Parliament and by primary legislation.

From the point of view of judicial independence, once one allows people to sue a judge or the court for acts done in a judicial capacity, there are two fundamental problems. One is that you are undermining the independence of the judiciary fairly self-evidently. The second is that you are opening up a second route of appeal from the decision in question, and that is a serious matter. I took the view, rightly or wrongly, that this should be done only with the full consent of both Houses of Parliament, properly and fully debated on the Floor of both Houses, following normal procedure for primary legislation.

I regret to say that by proceeding by this route, the Government have taken the wrong course. They have shown profound disrespect to Sir Peter Gross and his distinguished panel in this regard and have managed simultaneously to weaken both the foundational principles of our constitution: namely, the supremacy of Parliament and judicial independence.

I therefore respectfully ask the Minister, even at this late stage, to reflect on whether this really is the route that the Government should proceed with to make the necessary amendment to the Human Rights Act 1998, and I invite him to withdraw this order and to proceed by way of a one-line Act of Parliament which we can debate fully to explore these very important and difficult issues about judicial independence, the way courts operate, and whether in any circumstances parties or witnesses in court have rights against the judges or against courts for what is done in good faith judicially.

--- Later in debate ---

[Lord Keen of Elie (Con)]

My Lords, I thank the Minister for introducing this order, but I immediately say that I align myself entirely with the observations made by my noble and learned friend Lord Bellamy. We are dealing, on the surface, with what appears to be a very simple and straightforward order, but below that simple surface there is a raging sea of contention and debate. It is one that should be addressed by Parliament in the form of primary legislation, not by Ministers in the form of remedial orders.

When the Human Rights Act was passed, Parliament ensured that all aspects of the principle of judicial independence and immunity—what the Minister, rightly, referred to as a long-established common-law principle and a foundational constitutional issue—were preserved by Section 9 of the Act. There is a minor exception with regard to where someone has been detained, but that does not impact directly on the issue. The concept of judicial independence is central to our common-law system of justice.

I will come back to this point, but I make the observation that this is less easily identified in many continental legal systems. Many of those legal systems make up the European Court of Human Rights in Strasbourg, so there is, if you like, a potential divergence in the view taken on judicial immunity and judicial independence between common-law systems such as our own and continental systems.

Five years ago, in 2021—I emphasise 2021—in the case of SW v the United Kingdom, the European Court of Human Rights intruded on the issue of the immunity and independence of the judiciary by determining that a remedy in the form of damages should be available where there was potentially a breach of Article 8 of the convention. It is in that context that we are now presented with the remedial order.

When the Human Rights Act was being debated nearly 30 years ago, the noble and learned Lord, Lord Irvine of Lairg, set out that the power in Section 10 to make a remedial order was to be conferred only in exceptional circumstances. It was a power to be exercised lightly. It is a point reinforced by the terms of Section 10 itself. Noble Lords may wish to refer to the Explanatory Memorandum at paragraph 6.3, which emphasises this. Section 10(2) of the Human Rights Act requires that a Minister must consider there to be “compelling reasons” for making an amendment by way of a remedial order. I emphasise “compelling reasons”.

Five years after the judgment, Sir Peter Gross and his board determined that there could never or should never be compelling reasons to amend the Human Rights Act itself—the foundational document—by means of a remedial order. There may be cases with regard to other primary legislation where such a remedial order would be appropriate but, as the noble and learned Lord, Lord Irvine of Lairg, pointed out, it is a power to be conferred or exercised lightly and not one to be deployed with regard to the foundational principles of human rights as expressed in the Human Rights Act.

In attempting to meet the requirement for compelling reasons, we are told:

“We consider there is little prospect of finding suitable primary legislation to make an amendment in the near future. We consider that the nature of the incompatibility contributes to there being compelling reasons for making the necessary legislative change swiftly”.


Is this swiftly? The European Court of Human Rights opined on this matter more than five years ago. As regards compelling reasons, when the Minister presented this order, he did so under the non-urgent procedure. There is nothing compelling about any of this. This is an issue that should properly be brought before Parliament in the form of primary legislation, and the absence of a suitable vehicle is of little moment. Indeed, I happen to notice that we are at present debating the Courts and Tribunals Bill. Will the Minister confirm to me that he has checked whether this provision would fall within the competence of that Bill? No doubt he has addressed that issue, given the way in which the Explanatory Memorandum is set out, but other legislation could be made available.

In these circumstances, what we are actually seeing is the developing jurisprudence of the court in Strasbourg intruding upon the primary legislation of our sovereign Parliament in an area of fundamental constitutional importance and, five years later, a Minister laying an order under the non-urgent procedure seeking to maintain that somehow there is an issue of urgency and a compelling reason to intrude upon a fundamental constitutional right and protection. The time has come for the Government and Parliament to consider the increasing intrusion into our parliamentary sovereignty of an ever-evolving jurisprudence from the European Court of Human Rights, particularly when the jurisprudence is significantly and materially influenced by continental lawyers unfamiliar with our common-law based system. I suggest that the remedial order sets not only a very bad but a very sad precedent.

[Lord Lemos (Lab)]

I thank noble Lords for their contributions. I am sorry we got to this rather late, because it clearly raises some interesting issues. I am getting, if I may say so, conflicting advice from the parties opposite. Let me try to deal with the points that were raised by the noble and learned Lords, Lord Bellamy and Lord Keen, and the noble Lord, Lord German.

On the question of primary legislation, which the noble and learned Lord, Lord Bellamy, raised, supported by the noble and learned Lord, Lord Keen, we considered this a proportional and appropriate use of the power in Section 10 of the Human Rights Act, which was referenced: it does not prevent the amending of the Act itself. This is exactly the type of situation that the Section 10 power was created for.

I take the point that the noble and learned Lord, Lord Keen, made about Lord Irvine’s comment that it should be used lightly, which is in part why we are approaching this with a very narrow and targeted amendment to address the incompatibilities that have been identified by the courts. The scrutiny report of the JCHR was mentioned. I join with the noble Lord, Lord German, and very much associate myself with his sentiments about being proud of the work of the JCHR: it is a very distinguished part of your Lordships’ House. It was satisfied that the power to make a remedial order under Section 10 of the Human Rights Act can be relied on in these circumstances.

The Joint Committee on Human Rights also accepted that the conditions for compelling reasons—a point that has been raised—to use the power under Section 10(2) of the Human Rights Act were met. The committee also considered this question in the previous Hammerton remedial order and reached the conclusion that the Government do have the power to amend the HRA in this way.

On the question of finding suitable primary legislation, I do not think it is frivolous to observe that, in the short time I have been in this job, I have frequently been told that we should find time for one-line Bills to achieve something important. But we consider that there is little prospect of finding suitable primary legislation to make such amendment in the new year. The noble and learned Lord, Lord Keen, and I have discussed this before. I think he described waiting for parliamentary time as a “quagmire” in that debate. We consider that the nature of the incompatibility contributes to there being a compelling reason to make the necessary legislative change swiftly via a remedial order.

The noble and learned Lord, Lord Keen, is right that this has been going on since 2021, but of course he knows what I am going to say: we were not in power until 2024 and I understand from my officials that there was a search for a primary legislation vehicle before this Government came to power and none was found.

I turn now to the points made by the noble Lord, Lord German. I think I should address the question of judicial immunity, because it is so central to the discussion we are having. As I have said, and the noble and learned Lord, Lord Keen, also said, 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. The Government of course support that and commit themselves to protecting it. The immunity protects judges from personal liability arising from acts carried out in the exercise of their judicial functions. Officials have had—I want to reassure the Committee on this—continuous engagement with the judiciary during the drafting of the remedial order to ensure that they were fully sighted on our plans.

I will just make some remarks specific to this remedial order. When the Human Rights Act 1998 was passed, the purpose of Section 9(3) was to preserve the principle of judicial immunity and to limit the extent of damages for judicial acts done in good faith to the extent necessary to comply with Article 5(5) of the convention. A further exception, as I have noted, was added via the Hammerton remedial order to allow damages to be awarded in the case of judicial acts that are incompatible with Article 6 in circumstances where the person is detained and, but for the incompatibility, the person would not have been detained for so long. The noble and learned Lord, Lord Keen, mentioned that.

This order preserves the approach of the original legislation. I note the comments of the noble Lord, Lord German, on the views of the Joint Committee on Human Rights, but we want to take the narrow approach so that we can preserve the approach of the original legislation by setting out a further limited exception related to a judicial act done in good faith where the judicial act breaches the requirements of procedural fairness under Article 8. There clearly is a difference of view between the Government and the Opposition about the whole question of the European Convention on Human Rights, and this debate is a small part of that. I wish to put on the record the Government’s support for the European Convention on Human Rights, as I have done before, but I am very happy to reiterate that.

I am grateful for the contributions to this debate, and I am sure that issues that surround the European Convention on Human Rights will return to our debates many times in the future. We believe this order is the right way to implement the judgment. It ensures that we meet the obligation to implement the judgment while upholding the important principle of judicial immunity. I therefore commend this order to the Committee.

Motion agreed.