FIRST REPORT
The Procedure Committee has agreed to
the following Report:
MAKING REMEDIAL ORDERS: RECOMMENDATIONS
BY THE JOINT COMMITTEE ON HUMAN RIGHTS
Introduction
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.
Background
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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