Draft Human Rights Act 1998 (Remedial) Order 2026

Sarah Bool Excerpts

Monday 12th October 2026 General Committees

[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.