House of Commons - Liaison

Select Committee on Liaison First Report

Appendix 2: Memorandum from the Chairman of the Joint Committee on Human Rights

Letter from the Chairman of the Joint Committee on Human Rights (JCHR) to the Chairman of the Liaison Committee

Work of the JCHR in 2003

The Liaison Committee has asked each of the departmental select committees to produce reports on their activities in 2003, with particular reference to the "core tasks". As I said in my letter to you of last year, the JCHR is of a rather different nature than the departmental committees. The most obvious distinction is, of course, that it is a joint committee of the two Houses. Additionally, our terms of reference are "to consider matters relating to human rights in the UK". We do not therefore have a specific government department to hold to account in terms of the details of its service delivery performance or financial accountability. So far as general policy development is concerned, we would normally be engaged with cross-cutting issues which engage human rights, rather than the details of specific policy initiatives.

The core tasks are therefore of limited relevance to our work. Although we would not wish to disengage from the Liaison Committee's valuable exercise altogether, I again do not envisage that the JCHR will publish an annual report this year. Below, I set out what we have done in 2003, and attempt to relate that work to the core tasks. I would be happy for this letter to be published with a Liaison Committee report.

Core Tasks

Task 1: To examine policy proposals from the UK Government and the European Commission in Green Papers, White Papers, draft Guidance etc, and to inquire further where the Committee considers it appropriate.

To a large extent this is not relevant to our remit. We confine our scrutiny work mainly to legislation or proposals for legislation. However, we examine the Government's responses to the Concluding Observations of various UN Committees on the UK's periodic reports under the major international human rights instruments. In 2003, we published a report on the UN Convention on the Rights of the Child.[209] The next treaty we will be considering is the International Covenant on Economic, Social and Cultural Rights. We have taken evidence from NGOs and the responsible FCO Minister. We will be reporting our conclusions and recommendations later in 2004.

We have also been monitoring, in co-operation with the FCO, proposals to reform the European Court of Human Rights. We will be visiting the Council of Europe institutions in Strasbourg in March 2004 to pursue this topic.

Task 2: To identify and examine areas of emerging policy, or where existing policy is deficient, and make proposals.

In March we published a major report on The Case for a Human Rights Commission.[210] This also formed our formal contribution to the consultation exercise on the future of the anti-discrimination commissions. I am delighted to report that on 30 October the Government announced that it had accepted our central recommendation, and would proceed with the establishment of a Commission for Equality and Human Rights. The Committee will be continuing to contribute to the process of refining the design of this new body, and monitoring the implementation of the necessary legislation. We intend to report further before the White Paper, anticipated for May/June.

We also published a report on The Case for a Children's Commissioner for England in May.[211] I am also delighted to report that in September the Government announced its intention to establish such an office. We will monitor its implementation.

We began an inquiry into deaths in state custody, which engages the responsibilities of the Home Office, Department of Health and Attorney General, amongst others.[212] We hope to report in the Autumn of 2004.

Task 3: To conduct scrutiny of any published draft bill within the Committee's responsibilities.

All draft Bills fall within our area of responsibility in relation to their human rights implications, and so far we have considered all of them. In 2003, we reported substantively on the Draft Civil Contingencies Bill, the Draft Corruption Bill and the Draft Mental Incapacity Bill.[213] Our inquiries have overlapped with those of other committees into the wider questions raised by draft Bills, but this has not caused any major difficulties—these other committees seem happy that we should concentrate on looking at these draft Bills through a human rights prism, as a complement to their work.

We conducted, at the request of the Government, the principal pre-legislative scrutiny of the Draft Gender Recognition Bill, as the main purpose of this Bill was to remedy incompatibilities between UK law and the Convention rights identified in judgements of the European Court of Human Rights. As other pre-legislative committees have found, the timescale was not especially generous. The Draft Bill was introduced only in July. We reported in November,[214] but the Bill itself was introduced into the Lords less than a week after we had reported. Clearly, this meant it had been finalised before our recommendations were published.

Task 4: To examine specific output from the department expressed in documents or other decisions.

This task is not generally applicable as we have no single Department to monitor. Overall human rights policy responsibility lies with the Department for Constitutional Affairs, and we have taken evidence from the Secretary of State on general policy matters relating to human rights.[215]

Task 5: To examine the expenditure plans and out-turn of the department, its agencies and principal NDPBs.

This task is largely inapplicable to us, but see Task 7 below.

Task 6: To examine the department's Public Service Agreements, the associated targets and the statistical measurements employed, and report if appropriate.

This task is not relevant to the JCHR.

Task 7: To monitor the work of the department's Executive Agencies, NDPBs, regulators and other associated public bodies.

In general terms, this task is not relevant to the JCHR. There is only one NDPB which at present could be considered to fall directly within our remit. That is the Northern Ireland Human Rights Commission. With the agreement of the Northern Ireland Affairs Committee, we took evidence on the work of the Commission from the Commission itself, and the NIO, in November 2002, and reported on the work of the Commission in July 2003.

In the context of our inquiry into the case for a human rights commission, we have taken evidence from the three anti-discrimination commissions (the Disability Rights Commission, Commission for Racial Equality and Equal Opportunities Commission). When the proposed Commission for Equality and Human Rights is established, we could see strong grounds for its being accountable to Parliament principally through the JCHR.

Task 8: To scrutinise major appointments made by the department.

Not relevant to the JCHR. It may become so in the context of the proposed Commission for Equality and Human Rights.

Task 9: To examine the implementation of legislation and major policy initiatives.

We do not generally examine the implementation of legislation, as by and large this would fall outside our remit. We have, however, followed up on human rights points we have raised in relation to Bills as they were passing through Parliament, particularly in relation to the Anti-terrorism, Crime and Security Act 2001.

However, we did conduct a major inquiry into the implications for human rights protection of the meaning of "public authority" under the Human Rights Act 1998, which appears to be emerging in case law arising from early decisions of the courts. We reported in February 2004.

Task 10: To produce Reports which are suitable for debate in the House, including Westminster Hall, or debating committees.

A number of our reports have been tagged to debates in the House of Commons on various stages of legislation. We have also reported on delegated legislation, and our reports have been tagged to these debates or referred to in standing committee. Our reports have also been widely used in debates on Bills in the House of Lords (perhaps to a greater extent than in this House). Our report on The Case for a Human Rights Commission was debated in Westminster Hall (and in the House of Lords).

The standing orders require us to report on remedial orders made under the Human Rights Act. None were made in 2003.

Legislative Scrutiny

Having dealt with the core tasks, I now turn to the core work of the JCHR, which falls outside these tasks. This is our legislative scrutiny work.

Government Bills

Under section 19 of the Human Rights Act, 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.

In Session 2002-03 we reported on all Bills presented to Parliament in respect to their compatibility with Convention Rights as defined by the Human Rights Act 1998 and other human rights instruments. In this 2002-03 Session, the Committee published eleven reports on Bills before both Houses.[216] It considered a total of 110 Public Bills, including 36 Government Bills. Our general approach to this work remains—

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.

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

Where it seems appropriate, written commentary from non-governmental sources on these questions will be sought at the same time.

Ministerial and other responses will be considered, pursued and published alongside any report of the Committee's opinion.

Oral evidence will only be taken in exceptional cases.

Where a Bill has been substantially amended in either House in such a way as to appear to raise significant new questions relating to the human rights compatibility of its provisions, we have been prepared to consider it afresh in its altered form.

Drawing lessons from our experience of the first Session of conducting this systematic scrutiny, we moved in Session 2002-03 towards a principle of 'exception reporting', that is generally reporting our considered views to each House only when a Bill appears to give rise to a significant risk of a violation of a human right. We make that assessment on the basis of a number of criteria including—

the seriousness of the interference with, and the nature of, the right(s) affected,
the severity of the impact of any infringement on victims,
the vulnerability of potential victims, and
the extent to which the Bill in question appears to have taken account of any earlier recommendations of the Committee in respect of similar matters (including reports we have made on draft Bills).

Detailed reports on particular Bills have been confined to those which seem to us to raise substantial human rights issues requiring extended discussion.[217]

Private Members' Bills

Each Private Member's Bill is examined by the Committee for compatibility questions but, in allocating time and resources to this scrutiny, we have due regard to the priority that needs to be accorded to consideration of government legislation. However, we do consider that ballot Bills in the Commons should reasonably have a higher priority than other Private Members' Bills in that House. Where questions of compatibility arise in relation to a Private Member's Bill, we have given an opportunity for the Bill's sponsor to respond to our concerns. We recognise that this may not always be possible, and we have, in general, simply reported such matters for the attention of each House, rather than expecting the Member in charge necessarily to provide written responses, or drawing adverse inferences from a failure to do so. Again, we make substantive reports only on those Private Members' Bills which raise significant human rights issues measured against the criteria outlined above.

Private Bills

We also consider each Private Bill deposited, and the Promoter's opinion on its compatibility with the Human Rights Act. In Session 2002-03, we reported substantively on a number of Private Bills.[218]

Delegated Legislation

In general terms, we do not examine delegated legislation systematically. We rely on the JCSI to consider Convention rights issues as a question of vires. However, we have on occasion pursued especially significant instruments in human rights terms, especially where these arise from powers we commented on substantively in the course of our legislative scrutiny.[219]

Co-operation of Government Departments

With a remit extending to matters relating to human rights in the UK, our reports have regularly gone beyond the Ministers' section 19 statements of compatibility, which relate only to Convention rights. Departments and Ministers have generally been prepared to respond, in a full and reasoned way, to these questions. As a result, we believe we have been helping to extend awareness, in Parliament and within Government Departments, of a range of human rights as they apply in the UK.

Quorum

Last year I sought the support of the Liaison Committee in reducing the quorum of the Committee to two from each House, setting out my reasons. The Committee noted this in its annual report. I am pleased to report that thanks to the co-operation of the business managers and relevant committees in both Houses this change was effected in October.

Rt Hon Jean Corston MP

March 2004

209 Tenth Report, HC 81, and Eighteenth Report (Government Response), HC 1279 Back

210 Sixth Report, Session 2002-03, The Case for a Human Rights Commission, HC 489-I Back

211 Ninth Report, Session 2002-03, The Case for a Children's Commissioner for England, HC 666 Back

212 See First Report, Session 2003-04, Deaths in Custody: Interim Report, HC 134 Back

213 Eighth Report, Session 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 90/HC 634, Fifteenth Report, Session 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 149/HC 1005 Back

214 Nineteenth Report, Session 2002-03, Draft Gender Recognition Bill, HC 1276-I Back

215 See Minutes of Evidence taken before the Committee on 8 December 2003, HC (2003-04) 106-i Back