My noble Friend the Under-Secretary of State for Justice (Lord Ponsonby of Shulbrede) has today made the following statement:
I would like to inform the House that I am laying a draft proposal for a remedial order to amend section 9 of the Human Rights Act 1998 to allow an award of damages in a new set of circumstances. This is to implement the judgment of the European Court of Human Rights in SW v. UK—application no. 87/18.
The applicant in this case, SW, was a social worker who was called as a professional witness in childcare proceedings in the family court. The family court judge made adverse findings about SW in his judgment and directed that his statements be sent to SW’s employer, as well as to other local authorities where she had worked and relevant professional bodies, without giving SW an opportunity to respond. SW was dismissed and suffered various health issues as a result.
On appeal, the Court of Appeal set aside the relevant findings on the basis that, if left standing, they would breach SW’s rights under article 8—right to respect for private and family life—of the European convention on human rights. SW was advised she would be unable to obtain compensation under the HRA due to section 9(3) of the Act, which prevents the award of damages in respect of judicial acts done in good faith except in very limited circumstances, which do not include a breach of article 8 ECHR. The ECtHR subsequently ruled that article 13 of the ECHR—right to an effective remedy—read together with article 8, had been violated because SW 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 ECtHR also held that the applicant’s article 8 rights had been violated. The ECtHR awarded a sum in damages, which has been paid.
The UK is obliged under article 46 of the ECHR to implement this judgment, which includes resolving the circumstances that led to the violation. In order to address the violation of article 13 of the ECHR, legislative change is required as the violation was the result of the statutory bar on the award of damages under section 9(3) of the HRA.
Subject to approval by both Houses, the order would make a targeted amendment to the HRA which would have the effect that:
in proceedings in respect of a judicial act done in good faith;
where the judicial act is incompatible with article 8 on the grounds, or on grounds including 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;
a financial remedy could be awarded to the person to compensate for the breach of article 8. We are satisfied that damages would be available to individuals in situations similar to that of SW and would therefore satisfy the requirements of the judgment.
The Government consider that there are compelling reasons to amend the HRA via remedial order. We consider that the nature of the article 13 breach, and our obligation to implement the SW judgment, contribute to there being compelling reasons for making the necessary legislative change without further delay via remedial order. The alternative approach to a remedial order would be to make the amendment by way of primary legislation. However, we consider that there is little prospect of finding suitable primary legislation to make an amendment in the near future.
This draft proposal for a remedial order is being laid under the non-urgent procedure. It will be laid for a period of 60 days during which time representations may be made. The Joint Committee on Human Rights will scrutinise the remedial order and report on it to the House. Following that, the draft order, with any revisions the Government wish to make, will be laid for a further 60 days before being considered and voted on by both Houses.
[HCWS846]