Background
Section 9(3) of the Human Rights Act 1998 provides that in proceedings under that Act in respect of a judicial act done in good faith, damages may not be awarded except in two circumstances. The first is to compensate a person to the extent required by Article 5(5) of the European Convention on Human Rights (‘ECHR’) (deprivation of liberty). The second is to compensate a person for a judicial act that is incompatible with Article 6 ECHR (right to fair trial) in circumstances where the person is detained and, but for the incompatibility, the person would not have been detained or would not have been detained for so long.
In the case of Re W (A Child) [2016] EWCA Civ 1140, the Court of Appeal found that accusations of professional misconduct against a witness made by a Family Court judge breached her rights under Article 8 of the ECHR (right to respect for private life).
In its judgment of 22 June 2021 in SW v United Kingdom (Application no. 87/18), the European Court of Human Rights held that there had been a violation of Article 13 of the ECHR (right to an effective remedy), because the effect of section 9(3) of the Human Rights Act 1998 was that the witness could not bring a claim for damages in respect of a judicial act that was incompatible with Article 8.
Government proposals
On 17 July 2025, the Government laid before both Houses of Parliament its proposal for a Remedial Order to amend the Human Rights Act 1998. The proposed order is intended to give effect to the judgment of the European Court of Human Rights in SW v United Kingdom, by remedying the incompatibility of section 9(3) of the Human Rights Act 1998 with Article 13 of the ECHR.
The Government proposes to address this incompatibility by amending section 9(3) to allow damages to be awarded to compensate a person for a judicial act on an additional basis: that the judicial act is incompatible with Article 8 on the ground 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.
Section 9(3) of the Human Rights Act 1998 was previously amended by the Human Rights Act 1998 (Remedial) Order 2020 to give effect to the judgment of the European Court of Human Rights in the case of Hammerton v United Kingdom (Application no. 6287/10). See the Fifteenth Report of the Joint Committee on Human Rights of Session 2017-19, and its Second Report of Session 2019-21.
Remedial Orders
Section 10 of the Human Rights Act 1998 gives Ministers of the Crown the power to make remedial orders.
The section applies if it appears to the Minister that, having regard to a finding of the European Court of Human Rights in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention.
In those circumstances, the Minister may by order make such amendments to the legislation as the Minister considers necessary to remove the incompatibility, if the Minister considers that there are compelling reasons for doing so.
Reporting on the proposal
The Joint Committee on Human Rights is required to report to Parliament on any proposal for a remedial order to be made under the Human Rights Act 1998.
The Committee has 60 sitting days to report to each House its recommendation whether a draft order in the same terms as the proposal should be laid before the House.