31.39A remedial order is a form of subordinate legislation which has the power to amend or repeal primary legislation for purposes and in circumstances specified in the Human Rights Act 1998.1 It is a fast-track method of removing incompatibilities with Convention rights which emerge in the course of litigation in courts in the United Kingdom or at the European Court of Human Rights at Strasbourg. The relevant provisions are contained in ss 4 and 10 of, and sch 2 to, the Human Rights Act 1998.
A remedial order may make such amendments to the incompatible legislation (and, where the legislation in question is subordinate legislation, to primary legislation which prevents removal of the incompatibility) as the Minister considers necessary to remove the incompatibility.2 An order may: amend any primary or subordinate legislation, repeal primary legislation and revoke subordinate legislation;3 contain such incidental, supplemental, consequential or transitional provision as the person making it considers appropriate;4 have retrospective effect5 (save that nobody is to be guilty of an offence solely as a result of the retrospective effect);6 make provision for the delegation of specific functions;7 and make different provision for different cases,8 allowing (for example) parties to the litigation in which a declaration of incompatibility was made and to other similar litigation, but not other people, to be retrospectively relieved of the effects of the incompatibility.
The trigger for giving a Minister the power to make a remedial order is: either the making of a declaration of incompatibility by a United Kingdom court in respect of legislation,9 followed by a written statement by all parties with a right of appeal that they do not intend to appeal or the completion of any appeal process or the expiry of the time limit for an appeal; or a finding by the European Court of Human Rights, made on or after 2 October 2000, in proceedings against the United Kingdom, which makes it appear to a Minister or to Her Majesty in Council that a provision of legislation is incompatible with an obligation of the United Kingdom arising under the European Convention on Human Rights.10
After one of these events, a Minister may start the process of removing the incompatibility by way of a remedial order if, and only if, the Minister ‘considers that there are compelling reasons for proceeding under this section’, that is for using subordinate legislation rather than proceeding by way of a bill.11
The Act contemplates two types of remedial order, essentially for non-urgent and urgent action, as the case requires.
- 1. The first remedial order to be made was the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712).
- 2. Human Rights Act 1998, s 10(2).
- 3. Human Rights Act 1998, sch 2, para 1(2)(a) and (b) as read with s 21(1) of the Act, under which ‘amend’ includes ‘repeal’.
- 4. Human Rights Act 1998, sch 2, para 1(1)(a).
- 5. This normally provides for those affected by an incompatible provision to be relieved of its consequences by treating the rectifying legislation as having come into effect at a date before the remedial order is made.
- 6. Human Rights Act 1998, sch 2, para 1(1)(b) and (4).
- 7. Human Rights Act 1998, sch 2, para 1(1)(c).
- 8. Human Rights Act 1998, sch 2, para 1(1)(d).
- 9. That is, a declaration under the Human Rights Act 1998, s 4 that a provision of legislation is incompatible with a ‘Convention right’ as defined by the Act, and that primary legislation prevents the removal of the incompatibility (disregarding, in the case of subordinate legislation made under the incompatible primary legislation, the possibility of revocation of that subordinate legislation).
- 10. Human Rights Act 1998, s 10(1).
- 11. The Joint Committee on Human Rights commented on the interpretation of ‘compelling reasons' in its Seventh Report, Making of Remedial Orders, HL 58, HC 473 (2001–02) para 33.