Select Committee on Procedure First Report


The Procedure Committee has agreed to the following Report:



1. In December 2001 the Joint Committee on Human Rights (JCHR) published a report reviewing the operation of the system of 'remedial orders' set up under the Human Rights Act 1998.[1] The report recommends that there should be changes to Commons standing orders to improve parliamentary scrutiny, and to bring remedial orders procedure into line with that adopted for consideration of deregulation and regulatory reform orders. The Chairman of the JCHR, Jean Corston MP, has written to the Chairman of the Procedure Committee seeking its backing for these recommendations.[2] In this report we summarise the recommendations and lend our support to them.


2. Under the Human Rights Act the Government has power to make a remedial order in order to remove an incompatibility between domestic law and a right under the European Convention on Human Rights. This would be done following a declaration of incompatibility by a UK court, or where it appears that a decision of the European Court of Human Rights has highlighted an incompatibility. A remedial order is a form of subordinate legislation which has the power to amend or repeal primary legislation in order speedily to remove incompatibilities with Convention rights.

3. Remedial orders may be made either under an urgent or a non-urgent procedure. When the need for an order is deemed to be urgent, an order is made and has effect without formal reference to Parliament, but ceases to have effect if not approved by both Houses within a period of 120 days after being made (during the first 60 days, representations may be made to the Government; and the JCHR may report at any stage). When the need is non-urgent, a Minister first makes a proposal for an order and consults on this during a 60-day period, and then lays an order in draft before Parliament which must then—after a further 60-day period—be approved by resolution of each House. (These procedures are set out in detail in paragraphs 11 to 23 of the JCHR's report, and are summarised in tabular form in Annex A to the report.)

4. The special procedures for consideration of remedial orders set out in the Act and in standing orders constitute a recognition that these orders, because they seek to amend primary legislation in the absence of any provision in that legislation for amendment by delegated legislation, belong to the category informally dubbed 'super-affirmatives', which require a level of parliamentary scrutiny over and above that afforded to other affirmative procedure instruments.

5. Under Standing Order No. 152B, the Joint Committee on Human Rights is required to consider all urgent-procedure remedial orders, proposals for remedial orders, and draft remedial orders laid before Parliament, and to report to each House the following recommendations:

(a)  in the case of urgent-procedure orders, whether the order should be approved as originally laid, or replaced by a modified order, or not approved at all;

(b)  in the case of proposals for orders, whether a draft order in the same terms as the proposal should be laid before Parliament; and

(c)  in the case of draft orders, whether the draft order should be approved.

1   Joint Committee on Human Rights, Seventh Report of Session 2001-02, Making of Remedial Orders (HL Paper 58/HC 473). Back

2   Printed below, pp. 8-9. Back

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Prepared 14 February 2002