Human Rights Act 1998 (Remedial) Order 2026

Debate between Lord Bellamy and Lord German

Wednesday 28th October 2026 Grand Committee

[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.

[Lord German (LD)]

My Lords, it is always a pleasure to follow the noble and learned Lord, Lord Bellamy, who raises matters that, if you are not a lawyer, give you thought and give you interesting contributions that need to be addressed. I do not make a judgment on what he said, save that the Joint Committee—our Joint Committee on Human Rights, which I will come on to in a moment—reported, both the first time and the second time, on the singular point that, at some stage, this matter should be dealt with by primary legislation. Of course, the Government’s response at the time—and it continues to be the response; I am sure that the Minister opposite me now is going to have to defend this position—was that there was no time for such a small piece of primary legislation. I look forward to the Minister’s answer on that.

First, however, I absolutely agree that these pieces of legislation are foundation stones throughout our continent. For those of us who have spent, and are spending, a considerable amount of time working on the European Convention on Human Rights and the body that was set up to protect it—the Council of Europe—it is quite clear that all the legislatures in Europe bear this one thing and would say that all this is built on that foundation stone.

I carry that foundation stone with me, because it is not a huge document. I have it here: that is it. When people complain about the European Convention on Human Rights, I ought to have a selection and give them a copy. If you read the actual decision of the European court, you will see that it concerned Article 13 on the right to an effective remedy. I will read this into the record because it is only one sentence. It says:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.


You can see that, if you want to talk about foundations, that that is the foundation on which our Human Rights Act, which is being changed, was made.

My questions are related to the fact that we are justifiably proud of our Joint Committee on Human Rights. It is precisely its work that has been able to look at all these issues in great detail through taking evidence over a two-stage process, which has now taken nearly two years—and that is on top of the three years before that, when the case was first heard. This is very serious legislation and we need to be proud of the fact that we have a body of both Houses that lays out that the conditions that are being put before us today must be approved by both Houses; that is what we are here to do today.

I know that a solution has been put forward and the committee has agreed it—but not without a caveat. The committee’s primary caveat was that the amendment that has been brought forward is very tight and not broad. In the document that the Joint Committee on Human Rights produced, it sought to ask the Government to explain the rationale for being tight. This touches on one of the points made just now by the noble and learned Lord, Lord Bellamy, on judicial independence.