Human Rights Act 1998 (Remedial) Order 2026

Debate between Lord Bellamy and Lord Lemos

Wednesday 28th October 2026 Grand Committee

[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.