Human Rights Bill [H.L.]

House of Commons

Session 1997-98
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Arrangement of Clauses (Contents)

Human Rights Bill [H.L.]

EXPLANATORY AND FINANCIAL MEMORANDUM

The Bill gives further effect in domestic law to rights and freedoms guaranteed under the European Convention on Human Rights, and makes provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights.

Clause 1 specifies those Articles of the Convention and the First Protocol to it ("the Convention rights") which are given further effect by the Bill (subject to any designated derogation or reservation, to which clauses 14 and 15 refer). These Articles are set out in Schedule 1. Clause 1 also provides that the clause and Schedule 1 may be amended by order to reflect the effect of a protocol to the Convention which the United Kingdom has ratified, or signed with a view to ratification.

Clause 2 provides that a court or tribunal determining a question in connection with a Convention right must take account of relevant judgments, decisions, declarations and opinions made or given by the European Commission and Court of Human Rights and the Committee of Ministers of the Council of Europe.

Clause 3 provides that primary and subordinate legislation, whenever enacted, must as far as possible be read and given effect in a way which is compatible with the Convention rights. It also provides that this does not affect the validity, continuing operation or enforcement of any incompatible primary legislation, or any incompatible subordinate legislation if primary legislation prevents the removal of the incompatibility.

Clause 4 provides that specified courts may make a "declaration of incompatibility" where they are satisfied that a provision of primary legislation is incompatible with a Convention right, or that a provision of subordinate legislation is incompatible and the primary legislation under which it was made prevents the removal of that incompatibility. It also provides that such a declaration does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given.

Clause 5 gives the Crown the right to have notice that a court is considering whether or not to make a declaration of incompatibility, and entitles the Crown to be joined as a party to the proceedings.

Clause 6 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, unless that would be inconsistent with the effect of primary legislation. It also makes provision as to public bodies which are to be regarded as a "public authority" for the purposes of the Bill.

Clause 7 provides that a person who claims that a public authority has acted (or proposes to act) in a way which is unlawful, because incompatible with a Convention right, may bring proceedings against that authority under the Bill, or may rely on the Convention rights in any legal proceedings. Such a person may only bring proceedings or rely on the Convention rights if he is (or would be) a victim of the unlawful act. Clause 7 also enable tribunal jurisdiction to be extended by order so as to allow a particular tribunal to determine questions relating to the Convention rights.

Clause 8 provides that a court or tribunal may grant such relief or remedy, or make such order, within its jurisdiction as it considers appropriate where it finds an authority to have acted unlawfully. It also specifies the circumstances in which an award of damages may be made.

Clause 9 provides that proceedings in respect of a judicial act of a court or tribunal may be brought only by way of an appeal, on an application for judicial review or in a forum prescribed by rules. It preserves judicial immunity. It provides that damages may not be awarded in proceedings under the Bill in respect of judicial acts otherwise than to compensate a person to the extent required by Article 5(5) of the Convention. Any such award of damages is to be made against the Crown.

Clause 10 enables the amendment by order of a provision of legislation which has been declared incompatible with a Convention right (provided that an appeal has not been pursued or, if brought, has been determined) or which, in view of a finding of the European Court of Human Rights, appears to a Minister of the Crown to be incompatible, so as to remove the incompatibility. An order may also be made if subordinate legislation struck down for incompatibility requires urgent replacement.

Clause 11 makes further provision with respect to remedial orders and also provides that no person shall be guilty of an offence solely as a result of any retrospective effect of such an order.

Clause 12 provides that a remedial order is to be subject to the affirmative resolution procedure, and that, except in urgent cases, the order must be approved in draft. A draft may not be approved until 60 sitting days have elapsed from the day on which it was laid. Where not approved in draft before being made, it ceases to have effect if not approved by Parliament within 40 sitting days of its having been made. The order or draft order must be accompanied by an explanatory statement.

Clause 13 provides that a person's reliance on a Convention right does not restrict any other right or freedom conferred on him, or his right to make any claim or bring any proceedings which he could make or bring apart from clauses 7 to 9.

Clause 14 makes provision in respect of a "designated derogation", which it defines as the United Kingdom's derogation from Article 5(3) of the Convention (the text of which is set out in Part I of Schedule 2) and any other derogation from an Article of the Convention or of any protocol to the Convention, which is designated by order. It also provides for the amendment of Schedule 2 to reflect the addition or removal of designated derogations.

Clause 15 makes provision in respect of a "designated reservation", which it defines as the United Kingdom's reservation to Article 2 of the first Protocol to the Convention (the text of which is set out in Part II of Schedule 2), and any other reservation to an Article which is designated by order. It also provides for the amendment of the Bill to reflect the addition or removal of designated reservations.

Clause 16 provides that a designated derogation will, if not withdrawn before then, cease to have effect for the purposes of the Bill five years after clause 1(2) comes into force unless extended by order for a further five years before the end of that period. Clause 16 also provides that such an order is to be subject to the affirmative resolution procedure.

Clause 17 provides that the appropriate Minister must review the designated reservation to Article 2 of the First Protocol to the Convention within five years of clause 1(2) coming into force, and any other reservation within five years of its designation; requires the Minister to lay a copy of a report on the result of any such review before each House of Parliament; and provides for further periodic reviews of the designated reservation while the designation is still in force.

Clause 18 provides that a holder of one of the judicial offices to which the clause applies may become a judge of the European Court of Human Rights without being required to relinquish his office, and that he is not required to perform the duties of his judicial office while he is a judge of the Court. Clause 18(6) and Schedule 3 provide that the relevant Minister (usually the Lord Chancellor) must by order make provision for such a judge to be entitled to remain a member of his UK judicial pension scheme under the terms that would have been applicable had he not become a judge of the Court.

Clause 19 provides that the Minister in charge of a Bill in either House of Parliament must make and publish a written statement to the effect either that in his view the provisions of the Bill are compatible with the Convention rights, or that although he is unable to make such a statement, the government nevertheless wishes the House to proceed with the Bill.

Clause 20 makes provision in respect of the making of orders under the Bill.

Clause 21 defines various terms used in the Bill, and explains how references to Articles of the Convention and the European Commission of Human Rights are to be read before and after the coming into force of the 11th Protocol to the Convention.

Clause 22 makes provision about commencement and extent of the Bill. It also provides that the Bill binds the Crown.

Financial effects of the Bill

Although public authorities should already be seeking to comply with the Convention, the Bill could result in increased costs for them. The prohibition in clause 6 on acts by public authorities which are incompatible with the Convention rights could result in their amending their procedures in response to successful challenges to those acts, or in anticipation of challenges, and this may give rise to costs.

Public authorities will be liable under clause 8 to pay damages awarded by the courts in respect of acts which are incompatible with the Convention rights. In deciding whether to make such an award and in calculating the amount, however, the courts will be required under clause 8 to take into account the principles applied by the European Court of Human Rights in relation to its own awards of compensation. Such awards tend to range from £5,000 to £15,000 and are not made simply because the Court finds a violation of the Convention.

Clause 6 will have the effect of applying the Bill to a wide range of public authorities of different kinds. It is impossible to calculate what the overall financial effects of the Bill will be for them, or the effect for particular public authorities, or to be sure that any amendments to their procedures would not have been made in any case regardless of the provisions of the Bill (for example, as a result of other domestic policy decisions).

Additional public expenditure on the courts and the legal aid budget is likely to arise from clause 7 which enables Convention points to be raised in domestic proceedings involving a public authority, or to be the basis for proceedings against a public authority. Although it will be possible to raise Convention points (to the extent that they are relevant) in proceedings before any court or tribunal, the impact is likely to be greatest in relation to criminal proceedings, and on appeal, and in relation to applications for judicial review. It is also likely that the impact will be greater initially than in later years, when the courts will have become accustomed to dealing with Convention points and precedents will have been set.

International experiences of the implementation of human rights legislation provide some insights into how additional workload might accrue to the courts and what the areas of potential challenge might be, but there is no domestic precedent from which an analogy might be drawn. The Government is considering those experiences and the advice of the judiciary and practitioners from the United Kingdom and abroad in assessing how the provisions of the Bill are likely to affect the court system in practice. At present, however, there is no basis on which to estimate the additional costs to the courts and legal aid budget with any precision.

There will be an initial cost in training judges, magistrates and tribunal members to handle Convention points. This is estimated to cost up to £4.5m in England and Wales.

Clause 9 may give rise to additional expenditure since it will provide in the domestic courts an enforceable right to compensation, as required by Article 5(5) of the Convention, in respect of judicial acts. Liability, which will fall on the Crown, may arise from decisions or actions by judges, magistrates or court staff acting on the instructions of the judge, which are found on appeal to be unlawful. It is difficult to estimate the extent of this additional cost. The decision as to unlawfulness will take account of Strasbourg jurisprudence as required by clauses 2 and 8. Judicial training, awareness of the Strasbourg jurisprudence, and legislation and procedures which promote Convention rights will all reduce the scope for breaches of Article 5 rights by judicial acts.

Clause 18 could result in additional expenditure if a serving UK judge is appointed to the Court. In that case the judge will be entitled to remain in his UK judicial pension scheme. If he chooses to do so, pension rights will continue to accrue during his service at the Court and the pension will in due course be paid out of the Consolidated Fund. The cost will depend on both the number of years served at the Court and the salary of the relevant UK judicial office at the point of retirement.

The other provisions of the Bill have no significant financial effects.

Any costs arising as a result of the Bill will be contained within the Government's planned overall spending totals.

Effect of the Bill on public service manpower

In so far as its provisions result in increased business for the courts, the Bill may result in an increase in posts in the courts.

Business compliance cost assessment

It is not possible to assess the impact of the Bill on businesses, charities or voluntary organisations, but since its direct application is limited to public authorities, its impact on these kinds of organisation is unlikely to be significant.

© Parliamentary copyright 1998
Prepared 9 February 1998

Human Rights Bill [H.L.]

	EXPLANATORY AND FINANCIAL MEMORANDUM
	The Bill gives further effect in domestic law to rights and freedoms guaranteed under the European Convention on Human Rights, and makes provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights.
	Clause 1 specifies those Articles of the Convention and the First Protocol to it ("the Convention rights") which are given further effect by the Bill (subject to any designated derogation or reservation, to which clauses 14 and 15 refer). These Articles are set out in Schedule 1. Clause 1 also provides that the clause and Schedule 1 may be amended by order to reflect the effect of a protocol to the Convention which the United Kingdom has ratified, or signed with a view to ratification.
	Clause 2 provides that a court or tribunal determining a question in connection with a Convention right must take account of relevant judgments, decisions, declarations and opinions made or given by the European Commission and Court of Human Rights and the Committee of Ministers of the Council of Europe.
	Clause 3 provides that primary and subordinate legislation, whenever enacted, must as far as possible be read and given effect in a way which is compatible with the Convention rights. It also provides that this does not affect the validity, continuing operation or enforcement of any incompatible primary legislation, or any incompatible subordinate legislation if primary legislation prevents the removal of the incompatibility.
	Clause 4 provides that specified courts may make a "declaration of incompatibility" where they are satisfied that a provision of primary legislation is incompatible with a Convention right, or that a provision of subordinate legislation is incompatible and the primary legislation under which it was made prevents the removal of that incompatibility. It also provides that such a declaration does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given.
	Clause 5 gives the Crown the right to have notice that a court is considering whether or not to make a declaration of incompatibility, and entitles the Crown to be joined as a party to the proceedings.
	Clause 6 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, unless that would be inconsistent with the effect of primary legislation. It also makes provision as to public bodies which are to be regarded as a "public authority" for the purposes of the Bill.
	Clause 7 provides that a person who claims that a public authority has acted (or proposes to act) in a way which is unlawful, because incompatible with a Convention right, may bring proceedings against that authority under the Bill, or may rely on the Convention rights in any legal proceedings. Such a person may only bring proceedings or rely on the Convention rights if he is (or would be) a victim of the unlawful act. Clause 7 also enable tribunal jurisdiction to be extended by order so as to allow a particular tribunal to determine questions relating to the Convention rights.
	Clause 8 provides that a court or tribunal may grant such relief or remedy, or make such order, within its jurisdiction as it considers appropriate where it finds an authority to have acted unlawfully. It also specifies the circumstances in which an award of damages may be made.
	Clause 9 provides that proceedings in respect of a judicial act of a court or tribunal may be brought only by way of an appeal, on an application for judicial review or in a forum prescribed by rules. It preserves judicial immunity. It provides that damages may not be awarded in proceedings under the Bill in respect of judicial acts otherwise than to compensate a person to the extent required by Article 5(5) of the Convention. Any such award of damages is to be made against the Crown.
	Clause 10 enables the amendment by order of a provision of legislation which has been declared incompatible with a Convention right (provided that an appeal has not been pursued or, if brought, has been determined) or which, in view of a finding of the European Court of Human Rights, appears to a Minister of the Crown to be incompatible, so as to remove the incompatibility. An order may also be made if subordinate legislation struck down for incompatibility requires urgent replacement.
	Clause 11 makes further provision with respect to remedial orders and also provides that no person shall be guilty of an offence solely as a result of any retrospective effect of such an order.
	Clause 12 provides that a remedial order is to be subject to the affirmative resolution procedure, and that, except in urgent cases, the order must be approved in draft. A draft may not be approved until 60 sitting days have elapsed from the day on which it was laid. Where not approved in draft before being made, it ceases to have effect if not approved by Parliament within 40 sitting days of its having been made. The order or draft order must be accompanied by an explanatory statement.
	Clause 13 provides that a person's reliance on a Convention right does not restrict any other right or freedom conferred on him, or his right to make any claim or bring any proceedings which he could make or bring apart from clauses 7 to 9.
	Clause 14 makes provision in respect of a "designated derogation", which it defines as the United Kingdom's derogation from Article 5(3) of the Convention (the text of which is set out in Part I of Schedule 2) and any other derogation from an Article of the Convention or of any protocol to the Convention, which is designated by order. It also provides for the amendment of Schedule 2 to reflect the addition or removal of designated derogations.
	Clause 15 makes provision in respect of a "designated reservation", which it defines as the United Kingdom's reservation to Article 2 of the first Protocol to the Convention (the text of which is set out in Part II of Schedule 2), and any other reservation to an Article which is designated by order. It also provides for the amendment of the Bill to reflect the addition or removal of designated reservations.
	Clause 16 provides that a designated derogation will, if not withdrawn before then, cease to have effect for the purposes of the Bill five years after clause 1(2) comes into force unless extended by order for a further five years before the end of that period. Clause 16 also provides that such an order is to be subject to the affirmative resolution procedure.
	Clause 17 provides that the appropriate Minister must review the designated reservation to Article 2 of the First Protocol to the Convention within five years of clause 1(2) coming into force, and any other reservation within five years of its designation; requires the Minister to lay a copy of a report on the result of any such review before each House of Parliament; and provides for further periodic reviews of the designated reservation while the designation is still in force.
	Clause 18 provides that a holder of one of the judicial offices to which the clause applies may become a judge of the European Court of Human Rights without being required to relinquish his office, and that he is not required to perform the duties of his judicial office while he is a judge of the Court. Clause 18(6) and Schedule 3 provide that the relevant Minister (usually the Lord Chancellor) must by order make provision for such a judge to be entitled to remain a member of his UK judicial pension scheme under the terms that would have been applicable had he not become a judge of the Court.
	Clause 19 provides that the Minister in charge of a Bill in either House of Parliament must make and publish a written statement to the effect either that in his view the provisions of the Bill are compatible with the Convention rights, or that although he is unable to make such a statement, the government nevertheless wishes the House to proceed with the Bill.
	Clause 20 makes provision in respect of the making of orders under the Bill.
	Clause 21 defines various terms used in the Bill, and explains how references to Articles of the Convention and the European Commission of Human Rights are to be read before and after the coming into force of the 11th Protocol to the Convention.
	Clause 22 makes provision about commencement and extent of the Bill. It also provides that the Bill binds the Crown.
	Financial effects of the Bill
	Although public authorities should already be seeking to comply with the Convention, the Bill could result in increased costs for them. The prohibition in clause 6 on acts by public authorities which are incompatible with the Convention rights could result in their amending their procedures in response to successful challenges to those acts, or in anticipation of challenges, and this may give rise to costs.
	Public authorities will be liable under clause 8 to pay damages awarded by the courts in respect of acts which are incompatible with the Convention rights. In deciding whether to make such an award and in calculating the amount, however, the courts will be required under clause 8 to take into account the principles applied by the European Court of Human Rights in relation to its own awards of compensation. Such awards tend to range from £5,000 to £15,000 and are not made simply because the Court finds a violation of the Convention.
	Clause 6 will have the effect of applying the Bill to a wide range of public authorities of different kinds. It is impossible to calculate what the overall financial effects of the Bill will be for them, or the effect for particular public authorities, or to be sure that any amendments to their procedures would not have been made in any case regardless of the provisions of the Bill (for example, as a result of other domestic policy decisions).
	Additional public expenditure on the courts and the legal aid budget is likely to arise from clause 7 which enables Convention points to be raised in domestic proceedings involving a public authority, or to be the basis for proceedings against a public authority. Although it will be possible to raise Convention points (to the extent that they are relevant) in proceedings before any court or tribunal, the impact is likely to be greatest in relation to criminal proceedings, and on appeal, and in relation to applications for judicial review. It is also likely that the impact will be greater initially than in later years, when the courts will have become accustomed to dealing with Convention points and precedents will have been set.
	International experiences of the implementation of human rights legislation provide some insights into how additional workload might accrue to the courts and what the areas of potential challenge might be, but there is no domestic precedent from which an analogy might be drawn. The Government is considering those experiences and the advice of the judiciary and practitioners from the United Kingdom and abroad in assessing how the provisions of the Bill are likely to affect the court system in practice. At present, however, there is no basis on which to estimate the additional costs to the courts and legal aid budget with any precision.
	There will be an initial cost in training judges, magistrates and tribunal members to handle Convention points. This is estimated to cost up to £4.5m in England and Wales.
	Clause 9 may give rise to additional expenditure since it will provide in the domestic courts an enforceable right to compensation, as required by Article 5(5) of the Convention, in respect of judicial acts. Liability, which will fall on the Crown, may arise from decisions or actions by judges, magistrates or court staff acting on the instructions of the judge, which are found on appeal to be unlawful. It is difficult to estimate the extent of this additional cost. The decision as to unlawfulness will take account of Strasbourg jurisprudence as required by clauses 2 and 8. Judicial training, awareness of the Strasbourg jurisprudence, and legislation and procedures which promote Convention rights will all reduce the scope for breaches of Article 5 rights by judicial acts.
	Clause 18 could result in additional expenditure if a serving UK judge is appointed to the Court. In that case the judge will be entitled to remain in his UK judicial pension scheme. If he chooses to do so, pension rights will continue to accrue during his service at the Court and the pension will in due course be paid out of the Consolidated Fund. The cost will depend on both the number of years served at the Court and the salary of the relevant UK judicial office at the point of retirement.
	The other provisions of the Bill have no significant financial effects.
	Any costs arising as a result of the Bill will be contained within the Government's planned overall spending totals.
	Effect of the Bill on public service manpower
	In so far as its provisions result in increased business for the courts, the Bill may result in an increase in posts in the courts.
	Business compliance cost assessment
	It is not possible to assess the impact of the Bill on businesses, charities or voluntary organisations, but since its direct application is limited to public authorities, its impact on these kinds of organisation is unlikely to be significant.