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Human Rights Act 1998 (Making Of Remedial Orders) Amendment Bill [HL]

These notes refer to the Human Rights Act 1998 (Making of Remedial Orders) Amendment Bill [HL] as brought from the House of Lords on 28 April 2004 [Bill 103] HUMAN RIGHTS ACT 1998 (MAKING OF REMEDIAL ORDERS) AMENDMENT BILL [HL]       EXPLANATORY NOTES INTRODUCTION 1.     These explanatory notes relate to the Human Rights Act 1998 (Making of Remedial Orders) Amendment Bill as brought from the Lords on 28 April 2004. They have been prepared on behalf of the Joint Committee on Human Rights in order to assist the reader in understanding the Bill. They do not form part of the Bill and have not been endorsed by Parliament. 2.     The notes need to be read in conjunction with the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given. 3.     The Bill was introduced to the House of Lords on 1 March 2004, and was given its Third Reading in that House on 27 April. It has been taken up in this House by the Rt Hon Jean Corston MP, Chairman of the Joint Committee on Human Rights. The Bill's purpose is to give effect to recommendations of that Committee. BACKGROUND 4.     Section 10 of the Human Rights Act 1998 gives powers to Ministers to make "remedial orders", and Schedule 2 to that Act prescribes the procedure for the making of these statutory instruments. 5.     Section 10 of the 1998 Act provides that remedial orders can amend legislation (including primary legislation) where it has been declared by one of the higher courts in the United Kingdom to be incompatible with a Convention right within the meaning of section 1 of the Act, or where it appears to a Minister or to Her Majesty in Council that a legislative provision is incompatible with a Convention right in the light of a finding of the European Court of Human Rights in proceedings against the United Kingdom. This power is exercisable if certain other conditions are satisfied. [Bill 103—EN]     53/3 6.     The procedures to be followed in making a remedial order are set out in paragraphs 2 to 6 of Schedule 2 to the 1998 Act. There are two methods by which an order may be made. In urgent cases, the order may be made without first being approved in draft (paragraphs 2(b) and 4). For other cases, paragraphs 2(a) and 3 lay down the following procedure: a)     a proposal for the order, containing a draft of the proposed order and specified information, must be laid before Parliament; b)     sixty days must elapse beginning with the day on which the proposal was laid; c)     a draft order may then be laid before Parliament, with a statement by the Minister summarising any representations received during the sixty day period, and giving details of any changes made in the light of those representations between the proposal for a draft order and the draft order now laid; d)     after a further sixty days has elapsed the draft order may then be approved by a resolution of each House; e)     when both Houses have approved the draft, the order may be made. 7.     Paragraph 6 of Schedule 2 to the Act provides that the periods of sixty days are calculated without taking account of any period during which Parliament is prorogued or dissolved, or both Houses are adjourned for more than four days. 8.     The Joint Committee on Human Rights is required, under Standing Order No. 152B, of the House of Commons to consider each proposal for a draft remedial order, each draft remedial order, and each remedial order made by the urgent procedure. The Committee is required to report to each House whether the proposal, draft order or order meets certain tests and its recommendation as to whether it should be approved in the form proposed by the Minister, or with amendments, or should be disapproved. In December 2001, in its Seventh Report of Session 2001-02, Making of Remedial Orders, HC 473, the Joint Committee drew attention to two implications of the statutory provisions arising from its consideration of the first proposal for a draft remedial order to be laid under the 1998 Act. 9.     First, the Committee commented at paragraphs 39 to 40— "..A combination of urgent recalls of Parliament in September and October of 2001, and the five days on which the judicial sittings of the House of Lords occurred in October, cut down the number of days over the summer when the Houses were both adjourned for more than four days. As a result, by the time of our first meeting after the Summer Recess (22 October), only a calendar month remained of this period. This problem could be ameliorated for the future, but it would require an amendment to the Act, to replace the words "both Houses are" in paragraph 6(b) of Schedule 2 to the Human Rights Act by the words "either House is". This is the wording used in the Deregulation and Contracting-out Act 1994 and now in the Regulatory Reform Act, and it is not clear to us why it was not adopted for the cognate provisions in the Human Rights Act. This would mean that the clock would not tick when (for example) the House of Lords has judicial sittings early in October but the House of Commons is not sitting .. We recommend an amendment to the Human Rights Act to stop the statutory period running when either House is adjourned for more than four days .." 10.     Second, the Committee commented at paragraphs 42 to 43 that the sixty-day period before either House can consider a resolution to approve a draft remedial order— ".. seems to us longer than necessary. It is sensible to provide that the motion for approval must await the report of the Joint Committee on Human Rights on the compliance of the draft Order with the matters noted in paragraphs 16 and 17 above. However, given the previous period of 60 days for representations, at this stage it seems unnecessary to insist on the expiry of the full 60 days before approving the draft Order if the Committee has reported that it would be appropriate to approve the draft Order in the form in which it has been laid. In relation to this and other subordinate legislation, Standing Order No. 72(1) of the House of Lords, provides that draft Orders and made Orders should not be approved until the relevant Committee has reported, as long as the Committee in question reports within the time limits for approving such draft Orders or Orders. The same restriction is applied to draft or made Remedial Orders, subject to the time limits set out in Schedule 2 to the 1998 Act. Thus that House may approve a draft Order of any kind other than a draft Remedial Order as soon as the responsible Committee has reported on it. It seems anomalous to impose a specially long period of inaction in relation to draft Remedial Orders, particularly as they have the beneficent purpose of securing, rather than interfering with, Convention rights. We consider that it would be desirable if paragraph 2(a) of Schedule 2 to the Act could be amended to allow a draft remedial order to be approved at any time after being laid before Parliament .." 11.     These recommendations were endorsed by the House of Commons Procedure Committee in its First Report of Session 2001-02, Making of Remedial Orders: Recommendations by the Joint Committee on Human Rights, HC 626. 12.     The purpose of the Human Rights Act 1998 (Making of Remedial Orders) Amendment Bill is to give effect to those two recommendations of the Joint Committee on Human Rights by amending paragraphs 2(a) and 6(b) of Schedule 2 to the 1998 Act. COMMENTARY ON CLAUSES 13.     Clause 1(2) of the Bill will amend paragraph 2(a) of Schedule 2 to the 1998 Act so that each House would be able to consider a resolution to approve a draft remedial order without waiting for sixty days after the draft order has been laid. There would already have been a sixty-day period for each House to consider a proposal for the draft order, which would have been laid before it under paragraph 3(1) of Schedule 2 to the 1998 Act (see paragraph 4 above). This would give effect to the recommendation of the Joint Committee on Human Rights set out in paragraph 10 above. Standing Order No. 72(1) of the House of Lords provides that a motion to approve a draft remedial order could not be moved until the Joint Committee on Human Rights had reported on it: Standing Order No. 152B(3)(b) of the House of Commons should have the same effect in the House of Commons. 14.     Clause 1(3) of the Bill would amend paragraph 6(b) of Schedule 2 to the 1998 Act so that, when calculating the period of sixty days for the purpose of the Schedule, no account would be taken of any period when either House is adjourned for more than four days. This would give effect to the recommendation of the Joint Committee on Human Rights set out in paragraph 9 above. MISCELLANEOUS 15.     The Bill would have no implications for public finance or public service manpower. 16.     The Bill would not place any additional regulatory burden on the public, private or voluntary sectors. 17.     The Bill does not give rise to any issues in connection with Convention rights. 18.     The changes to the procedures laid down in Schedule 2 to the Human Rights Act will come into effect immediately upon the Bill receiving the royal assent.