House of Commons - Liaison

Select Committee on Liaison First Report

APPENDIX J

JOINT COMMITTEE ON HUMAN RIGHTS

Memorandum to the Liaison Committee

Introduction

1. The terms of reference given to the Joint Committee on Human Rights (JCHR) by Standing Order 152B are wide. They are to consider "matters relating to human rights in the United Kingdom (but excluding consideration of individual cases)" and to examine proposals for "remedial orders" to be made under the Human Rights Act.

2. The JCHR has a number of special characteristics which distinguish it from the majority of committees represented on the Liaison Committee. First, and most obviously, it is a permanent Joint Committee of the two Houses. Although there are plentiful precedents for joint committees, the JCHR is the first to have such wide-ranging terms of reference. It has a cross-cutting remit, not tied to a specific area of government activity nor to a specific set of ministerial responsibilities nor, as yet, to any specific extra-parliamentary institutions or associated public bodies. It is unusual for a Joint Committee in having a Commons Chairman. Second, it is relatively new. It was established only in the last Parliament, and had its first meeting on 31st January 2001. It was therefore less than a year old at the time this memorandum was composed, and that year saw a hiatus caused by a general election. On the Commons side, all but one of the members (the Chairman, Jean Corston) changed after the election. Third, it was set up in the specific circumstances of the Human Rights Act, with a set of specific expectations attached to its rôle by outside commentators.

3. These factors combine to mean that the Committee's method of working and approach to its remit are still evolving, and are likely to develop further over the coming year. However, we have made some key decisions on our objectives and priorities which are set out below, and we have already produced a significant number of reports.

4. The analysis of our work is divided into the following categories—

- Scrutiny of delegated legislation

- Scrutiny of remedial orders

- Policy-based or "thematic" inquiries

Scrutiny of Bills

Government Bills

5. Under section 19 of the Human Rights Act (HRA), every Government Bill is required, on publication, to be prefaced by a statement from the responsible Minister as to whether, in his or her opinion, the provisions of the Bill are compatible with Convention rights, as defined in the Act. The JCHR considers itself to be responsible to Parliament for assessing whether these "section 19 statements" have been properly made (a question much discussed during the passage of the Human Rights Bill), and believes this to be is its key duty. Accordingly, the Committee in the last Parliament announced that it would make scrutiny of primary legislation for its compatibility with Convention rights its first priority. The present Committee has reaffirmed this decision, and this work has formed the bulk of our published output so far. In this Session we have produced seven reports[125] on Government Bills before both Houses, giving our assessment of their compliance with Convention rights within the meaning of the Human Rights Act 1998 and in relation to other human rights instruments. The methodology of our approach has begun to take definite shape. The general principles are—

(a) We have decided that every Government Bill will be examined at as early a stage as possible to establish whether significant questions of human rights appear to be raised by any of its provisions.

(b) Where such questions appear to arise, written ministerial responses to specific enquiries from the Committee will be sought.

(c) Where it seems appropriate, written commentary from non-governmental sources on these questions will be sought at the same time (this is an area of our work which we are keen to develop).

(d) Ministerial and other responses will be considered, pursued and published alongside any report of the Committee's opinion. On occasions, it will appear to us that the urgency of the matter may require us to report before ministerial responses have been received.

(e) Oral evidence will only be taken in exceptional cases.

6. The most significant Bill considered by us so far was, of course, the Anti-terrorism, Crime and Security Bill. This was presented in the Commons on 14 November 2001 and published the following day. We took oral evidence from the Home Secretary on the evening of 16 November, and published our report on 18 November, in time for the Bill's second reading in the Commons on Monday 21 November. After it had completed its stages in the Commons (at great speed), we considered how the Government had responded to our criticisms and suggestions and published a further report in time for the Report Stage of the Bill in the Lords.

7. Our reports were, we think it is safe to say, influential on the course of debate, and the Government responded to a number of our comments by proposing amendments to the Bill in both Houses. We intend to return to the Act itself well before the sunset clause relating to its most controversial provisions, contained in Part 4, has effect. More generally, we hope to include regular post-legislative reviews of all the Acts on which we raised human rights questions during their passage through Parliament.

8. The Anti-terrorism, Crime and Security Bill involved derogating from Convention rights in respect of certain of the provisions of Part 4. We are concerned that the procedure for such derogations may be in need of refinement, and we intend to examine it at an early opportunity. We also consider it our duty to hold the Government to account for the need to examine very carefully whether the emergency which it believed gave rise to the need for a derogation still persists. If it did not, the continuance of the derogation would be contrary to the UK's international treaty obligations.

Private Members' Bills

9. Our approach to this type of scrutiny has been slightly modified for Private Members' Bills, which do not have a section 19 statement, and whose sponsors are anyway likely in most circumstances to be hard-pressed to answer questions from this Committee about compatibility. The other factor we have to take into account is how small a proportion of such Bills make any significant progress, never mind reach the statute book. We consider it appropriate that the resources devoted to them by the JCHR should be proportionate to this reality.

10. Each Private Member's Bill will therefore be examined by the Committee for compatibility questions, but in allocating resources to this scrutiny, the staff have due regard to the priority that needs to be accorded to government legislation. However, the Committee has decided that ballot Bills in the Commons should reasonably have a higher priority than other Private Members' Bills in that House.

11. Where questions of compatibility do arise in relation to a Private Member's Bill, the Committee intends, in general, simply to report these matters for the attention of each House, rather than expecting the Member in charge to provide written responses. Of course, should they choose to do so, we will receive them gratefully.

12. In fact, the only Private Member's Bill on which we have so far reported on was the Tobacco Advertising and Promotion Bill [Lords], which was identical to a Government Bill of the same title which was lost at the dissolution and not reintroduced by the Government. In these special circumstances, we did seek written responses from the Department of Health and the DTI, and they were given.[126] We consider that this sets a useful precedent.

Private Bills

13. The Standing Orders relating to Private Bills were amended with effect from 27 November 2001 so that S.O. 38(3) of the House of Commons now requires the memorandum attached to each Bill by the promoter to include a statement of opinion as to compatibility with Convention rights. S.O. 169A requires a Minister to report on each such statement (by depositing a statement in the Private Bill Office) immediately after First Reading.

14. Given the introduction of these procedures, the JCHR has decided that the comprehensive nature of its approach to legislative scrutiny should include commenting on these opinions/statements. The Committee will consider Private Bills in much the same manner as it does Government Bills. So far, none has raised significant human rights questions.

Reports of Committee's Conclusions

15. In this Session we have published separate reports on each Bill we have examined in depth (and in some cases more than one). We recognise a need to systematise the presentation of the conclusions of our scrutiny, so that it is made readily available to each House in a recognised and standardised format. This is the policy adopted by the other 'scrutiny' committees of the two Houses.

16. Alongside efficient communication, the other factor driving the demand for a more systematic approach to publishing the conclusions of scrutiny is the need for timeliness. The Committee needs to make its conclusions (whether neutral or critical) available at a stage which is plausibly early enough to influence a Bill's progress.

17. Additionally, we hope that by reporting the progress of its inquiries regularly, the Committee will increase the pressure on Departments to respond promptly to its inquiries.

18. We therefore propose in due course (perhaps not before the start of the next Session) to publish a regular report on our scrutiny of Bills. This would take a standard format, which might be broadly along the lines of—

(a) A short introductory general report, setting out what the remainder of the report includes and making any special or general observations as needed.

(b) A series of Annexes, each devoted to a singe Bill, setting out standard information and giving the Committee's opinion on each Bill. Where questions had been raised by the Committee, these would be reported even if a response had not yet been received from a Minister. Where there was an exchange of letters (and occasionally oral evidence), a Bill might appear in a number of successive reports.

19. We also intend to publish an annual report summarising key issues which have arisen in the course of our legislative scrutiny work, and following through general themes of concern.

Section 19 Statements

20. We have continued an a correspondence begun by our predecessors with the Government about the nature of section 19 statements. In particular, we have been pressing for more information to be given to Parliament than the bald statement that a Bill, in the opinion of a Minister, is compatible with Convention rights; and have sought for some explanation of the questions that were looked at in coming to such conclusions to be given as a matter of course. We are pleased to be able to report that there has been positive movement on this issue, and that the Lord Chancellor has informed Parliament that the Explanatory Notes relating to each Government Bill will now include more such material.

Scrutiny of Delegated Legislation

21. Statutory instruments are normally "subordinate legislation" for the purposes of the Human Rights Act 1998.[127] Under the terms of the Act, subordinate legislation is invalid to the extent of any incompatibility with a Convention right, unless the effect of the enabling legislation is such that the subordinate legislation could not have been made in a manner compatible with the Convention right. The Joint/Select Committee on Statutory Instruments (JCSI) is required to consider whether statutory instruments are intra vires. Under that heading, the JCSI examines the compatibility of instruments with Convention rights, on the basis of appropriate legal advice. We concluded that for the JCHR also to examine such instruments would unnecessarily duplicate the work of the JCSI. We consider, however, that it would nevertheless be desirable for the JCHR to examine such an instrument if its purpose was to amend the law to make it compatible with a Convention right (or if a Member of either House has requested that it should be considered by the JCHR). The JCHR will therefore examine, and if necessary report to each House on, statutory instruments which count as subordinate legislation for the purposes of the Human Rights Act 1998 only if it considers it appropriate to do so because the instrument is either expressly concerned with Convention rights or where a Member of either House has asked the Committee to do so.

22. Some statutory instruments count as primary legislation for the purpose of the Human Rights Act 1998. Examples are statutory instruments which amend or repeal primary legislation by virtue of a 'Henry VIII clause' (including most remedial orders and deregulation and regulatory reform orders), commencement orders for Acts of Parliament, Orders in Council made under section 84(1) of the Northern Ireland Act 1998, and Orders in Council made under the Royal Prerogative.[128] Subordinate legislation of this kind remains valid notwithstanding any incompatibility with a Convention right.[129]

23. The JCHR's terms of reference require it to consider and report on all remedial orders (for which see below). Other statutory instruments which count as primary legislation for the purposes of the Human Rights Act 1998 will be examined by the JCSI. Although that Committee will not be able to treat compatibility with Convention rights as a matter of vires, normally there will be little to be gained from further examination by the JCHR. However, we have concluded that the JCHR should consider subordinate legislation which counts as primary legislation under the terms of the Human Rights Act if: it is referred to the Committee by the JCSI; or the instrument in question is intended to amend the law to remove an incompatibility with a Convention right; or if a Member of either House draws human-rights implications of the instrument to the attention of the Committee.

24. The JCHR will consider local instruments only if they are referred to the Committee at the request of Members of either House.

25. We hope to include reports on delegated legislation in our rolling scrutiny report referred to in paragraph 18 above. We have as yet made no reports on statutory instruments other than remedial orders.

Remedial Orders

26. Under the Human Rights Act a Minister has power, in specified circumstances, to make a remedial order in order to remove an incompatibility between domestic law and a Convention right. Such orders may amend primary (or subordinate) legislation, even where there was no express provision in the relevant Act for it (or delegated legislation made under it) to be amended other than by primary legislation.

27. The trigger for the making of such an order is, briefly, either a declaration of incompatibility made by a United Kingdom court,[130] or where it appears that a decision of the European Court of Human Rights in a case brought against the United Kingdom has highlighted an incompatibility in statutory law in the United Kingdom.[131] A full account of the conditions and procedures for making remedial orders can be found in our report on Making of Remedial Orders.[132]

28. The Act sets out the procedure for making such remedial orders. There are essentially two routes: the non-urgent, which requires a Minister first to make a proposal for an order and consult upon it, before laying an order in draft before Parliament which is then subject to affirmative resolution procedure; and the urgent procedure, under which the order may be made and laid but ceases to have effect if not approved by both Houses within a specified period.

29. Under S.O. No. 152B, the Joint Committee on Human Rights is required to report to each House, within the various statutory periods set out in the Act, on each proposal for a remedial order, draft remedial order or urgent procedure remedial order laid before Parliament. The procedures are modelled on those adopted for Deregulation Orders (and now for Regulatory Reform Orders), and the JCHR has a similar role in the process of approving remedial orders as the Deregulation and Regulatory Reform Committee has in relation to those.

30. The first proposal for such a remedial order was laid before Parliament on 19 July 2001. It was to amend the sections 72 and 73 of the Mental Health Act 1983 in respect of the nature of the burden of proof required to be demonstrated in the finding of a Mental Health Review Tribunal as to whether a person compulsorily detained under the Act should continue to be detained. The incompatibility had been identified by the Court of Appeal in a declaration made in April 2001. In response to our urgings, the proposal for a draft remedial order was withdrawn on 9 November and replaced by an urgent procedure order on 19 November. We reported on that order in December.[133]

31. Following our experience of considering the first remedial order to be made under the Human Rights Act, we published a further report, setting out the procedures as we interpreted them, for the sake of clarity. We also made a number of recommendations about how Departments should act on their duty to keep us informed of the progress of the Government's responses to such findings of incompatibility. We also commented on some minor anomalies in the legislation and in the standing orders of the House of Commons which we felt had been highlighted by our experience.[134] Of particular relevance to the Liaison Committee are the shortcomings we identified in that report in the safeguards applied by the standing orders to the process of approval of remedial orders (whether draft or made) in the Commons.[135] We hope the Liaison Committee will lend its support to our recommendations in its own annual report.

32. At present, it is impossible to predict how many remedial orders are likely to be made each year. If the rate of flow were to accelerate, and the orders were to be more complicated and controversial than the first, this could have significant resource implications.

Policy-based or "Thematic" Inquiries

33. So far we have described the legislative scrutiny work of the Committee. As we said above, the remit of the Committee is wide, covering all matters relating to human rights in the United Kingdom with the exception of the consideration of individual cases. We intend to make use of these wide terms of reference, although so far the demands of legislative scrutiny work have prevented us from making as much progress in other areas as we would have liked to.

The Case for a Human Rights Commission for the United Kingdom

34. During the passage of the Human Rights Bill through Parliament, much reference was made to the desirability of establishing a Human Rights Commission. The Government's response was generally to suggest that the JCHR, once established, would be the best body to consider this question and come forward with recommendations. Our predecessors in the last Parliament enthusiastically took up this suggestion, and launched an inquiry into the case for a Human Rights Commission for the United Kingdom. We intend to continue it. The key questions we hope to address are—

- what its relationship with the JCHR should be;

- what priority should be assigned to its different functions;

- what its geographical extent should be (in particular whether there should be separate Commissions in Northern Ireland, Scotland and Wales);

- what its relationship with the Information Commissioner, the Commission for Racial Equality, the Equal Opportunities Commission, the Disability Rights Commission, the Equality Commission for Northern Ireland and the Children's Commissioner for Wales should be;

- how its independence should be assured, how it should be appointed and to whom it should report;

- what resources would be required;

- what its formal powers should be (for example to issue notices of incompatibility, to initiate or participate in legal proceedings, to issue Codes of Practice, etc.).

35. We will be holding a seminar at the end of February to launch the next phase of this inquiry. We hope to report before the beginning of the next Session.

Monitoring Human Rights and the Implementation of the Act

36. Our predecessors conducted an inquiry, on which they did not have time to make a full report, into the implementation of the Human Rights Act.[136] We intend to continue this work in a number of ways.

37. First, we will take regular evidence from Ministers responsible for human rights policy throughout Government. Principal responsibility was transferred after the general election from the Home Office to the Lord Chancellor's Department. We have already sought written evidence from the Department, and intend to follow this up with oral evidence shortly. We hope to monitor closely how the culture of human rights is being encouraged throughout government and other public authorities. We do not consider that it is sufficient only to look at legislation once it is proposed—the culture of human rights should be informing policy making at every stage and every level.

38. Second, we will monitor the decisions of the various courts (including Strasbourg) which raise issues of human rights relating to the UK. Where these seem to us to require it, we will seek evidence from the Government as to how it is proposing to respond to these findings. We also hope to demonstrate that some of the more apocalyptic predictions about the impact of incorporation are not being realised.

39. Third, we hope to monitor, and indeed participate in, the process by which the Government reports to various international bodies on the discharge of the UK's obligations under a number of international human rights instruments. The reports which we have already identified are—

To	Under
UN Human Rights Committee	International Convention on Civil and Political Rights
UN Committee against Torture	UN Convention against Torture
UN Committee on Elimination of Discrimination against Women	UN Convention on Elimination of all forms of Discrimination against Women
UN Committee on Rights of the Child	UN Convention on Rights of the Child

The Committee's remit is not confined to the terms of the Human Rights Act. We may also wish to examine issues of race discrimination in relation to International Convention on the Elimination of Racial Discrimination, matters relating to the provisions of the European Social Charter, and rights established under the International Covenant on Economic, Social and Cultural Rights. By giving greater parliamentary and public visibility to the preparation, contents and conclusions of the reports from the UK Government relating to some of these instruments, and the Government's actions in response to recommendations of the different international organs involved in monitoring their implementation, we hope to raise the profile of this work.

40. Fourth, we intend to produce an annual report on implementation of the Act and other questions relating to human rights in the UK. We hope that in due course, time might be found for an annual debate in each House on these matters.

Thematic Inquiries

41. We also wish to undertake, when time and resources allow, a series of inquiries into human rights issues in practice, as embodied in the behaviour of public authorities in relation to citizens in their care or to whom they provide services. Amongst the potential topics we have identified are—

- The characterisation of a person or body as a 'public authority' subject to the Convention rights under the Human Rights Act 1998

- The development of privacy related rights against the press

- Immigration and deportation, including the treatment of unaccompanied child asylum seekers in the UK

- Social security provision

- Social housing provision

Issues for the Attention of the Liaison Committee

42. At this relatively early stage in the JCHR's development, we have not identified any pressing matters which we feel need to be drawn to the special attention of the Liaison Committee. Clearly, given the ambitious programme outlined above, resources will be an issue for this Committee, as for other select committees of the House.

43. So far, our experience of the level of co-operation from Departments in our work has been a positive one. We have no matters to raise in this connection.

44. Our principal objectives for the next year are to—

- establish an effective system for involving outside groups in the scrutiny of Bills and delegated legislation, and for reporting our findings to the House;

- report on a Human Rights Commission;

- report on our continuous monitoring of human rights issues raised by decisions of the courts, etc.;

- report on the findings of UN agencies and other international organs on the UK's discharge of its obligations under various human rights instruments;

- initiate a long-term programme of inquiries into the impact of human rights considerations on the behaviour of public authorities towards those in their care or to whom they provide services.

January 2002