Explanatory note

This Order amends the Human Rights Act 1998 (“the HRA”) to address a finding of the European Court of Human Rights of a breach of Article 13 of the European Convention on Human Rights (“the Convention”) in the case of S.W. v United Kingdom (Application no. 87/18).

Article 2 of the Order amends section 9(3) of the HRA. Section 9(3) provides that in proceedings under the HRA in respect of a judicial act done in good faith, damages may not be awarded other than in limited circumstances concerning incompatibility with Article 5 or Article 6 of the Convention.

Article 2 of the Order adds a further exception to the prohibition on the award of damages in section 9(3). It enables damages to be awarded where a judicial act is incompatible with Article 8 of the Convention on the ground that the act was done in such a procedurally defective way as to amount to a breach of the requirements of procedural fairness under that Article.

Article 2 of the Order also provides that the amendments to section 9(3) of the HRA apply to judicial acts that occurred before, as well as after, the date on which the Order comes into force.

An impact assessment has not been produced for this instrument as no impact on the private or voluntary sector is foreseen