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PART 9: FINAL PROVISIONS
Clause 59: Meaning of “Minister of the Crown”
446. Clause 59 provides that the term “Minister of the Crown” in the Constitutional Reform and Governance Bill will have the same meaning as provided in the Ministers of the Crown Act 1975. This includes Secretaries of State but also, for example, the Attorney General, the Lord Chancellor and the Minister for the Civil Service.
Clause 60: Financial provision
447. Clause 60 provides that any expenditure incurred by a Minister of the Crown by virtue of the Act can be paid for out of money provided by Parliament.
Clause 61: Power to make consequential provision
448. Clause 61 contains a power to make changes to primary or secondary legislation in consequence of the Bill by order. Subsection (1) provides that the power can be exercised by a Minister of the Crown, or two or more Ministers acting jointly.
449. Subsection (2) provides that an order may amend, repeal or revoke provision in primary or secondary legislation and may include transitional, transitory or saving provisions. An order under this clause must be made by statutory instrument (subsection (3)). If it amends primary legislation, an order will be subject to the affirmative resolution procedure (subsection (4)). Any other order will be subject to negative resolution procedure (subsection (5)).
Clause 62: Extent, commencement, transitional provision and short title
450. Subsection (1) provides that Part 2 of the Bill (demonstrations in the vicinity of Parliament) extends to England and Wales only.
451. Subsection (2) provides that any other amendment or repeal made by the Bill will have the same extent as the Act or relevant part of the Act to which it relates.
452. Subsection (3) provides that the Act, apart from Part 9, will come into force on a day which a Minister of the Crown or two or more Ministers acting jointly, decide by order and that different provisions may be brought into force at different times.
453. Subsection (4) provides that a Minister of the Crown or two or more Ministers acting jointly may make an order making transitional, transitory or saving provisions in relation to the commencement of the provisions of the Act.
454. Subsection (5) provides that an order under subsection (3) or (4) must be made by statutory instrument.
455. Subsection (6) sets out the short title of the Bill.
FINANCIAL EFFECTS
456. The Constitutional Reform and Governance Bill provides for new statutory heads of expenditure, in particular, the establishment of the Civil Service Commission (clause 2), the powers to manage the Civil Service (clause 3) and the establishment of the new National Audit Office (clause 50). However, these new statutory heads of power are replacing non-statutory heads or, in the case of the National Audit Office, replacing a current statutory head of expenditure. There will thus be a minimal net impact on public expenditure.
457. The Cabinet Office has estimated that the provisions in Chapter 4 of Part 1 will be broadly cost neutral. The additional costs arising from fewer job applications being sifted out initially and from carrying out of security checks on foreign nationals are expected to be balanced by the reduction in administrative time involved in operating the current complex rules.
PUBLIC SERVICE MANPOWER
458. The provisions contained with the Constitutional Reform and Governance Bill have no substantial effect on public service manpower.
IMPACT ASSESSMENT
459. The provisions contained in the Constitutional Reform and Governance Bill do not require an Impact Assessment.
EUROPEAN CONVENTION ON HUMAN RIGHTS
460. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act).
461. Jack Straw, the Secretary of State for Justice, made the following statement of compatibility in accordance with section 19:
“In my view the provisions of the Constitutional Reform and Governance Bill are compatible with the Convention rights.”
462. The following paragraphs deal with Convention rights issues raised by the Bill. Where in the Government’s view a Part does not give rise to any Convention rights issues it is omitted.
Part 1 - The Civil Service etc
463. Clause 2 gives effect to Schedule 1 which makes provision about the Commission. Paragraph 5 of the Schedule concerns the removal from the office of First Commissioner or Commissioner. Sub-paragraph (3) provides that Her Majesty may remove the First Commissioner or a Commissioner, on the recommendation of the Minister, if one of the conditions set out in sub-paragraph (4) is met. It is considered that the removal of the First Commissioner or Commissioner is likely to engage Article 6 ECHR (as it is likely to constitute the determination of a civil right within Article 6(1)). The Bill itself does not specify the procedure to be adopted in removing the First Commissioner or Commissioner from office. However, it is envisaged that the procedure will be specified in the terms of appointment. The decision of the Minister recommending removal would also be amenable to judicial review. It is considered that the combination of the procedure which will be set out in the terms of appointment and the possibility of judicial review of the decision of the Minister recommending removal, would satisfy the requirements of Article 6.
464. Given the limited impact that dismissal from the post of Commissioners will have on the personal life of the individual, dismissal is not thought to engage Article 8.
465. Paragraphs 26 and 28 of Schedule 2 preserve the terms and conditions of the First Civil Service Commissioner and Commissioners who are in office at the date of commencement. Consequently, Article 1 Protocol 1 is not thought to be engaged.
466. Clause 9 makes provision for civil servants to complain to the Commission about breaches of the codes and for the Commission to investigate breaches of the codes. The consideration of breaches of the codes by the Commission does not engage Article 6 ECHR as it does not involve the determination of a civil right within Article 6(1). The Codes will set out the standards of behaviour expected of civil servants based on the core values of the Civil Service rather than create any civil rights.
467. Clause 9 provides that civil servants may complain to the Commission where they believe that they are being required to act in a way which conflicts with the codes or where they believe that another civil servant has acted in a way which conflicts with the codes. However, the Commission’s role after consideration of a complaint or an investigation, is limited to making recommendations. In practice, these recommendations are likely to be made confidentially to the department and civil servants concerned. So even if it were concluded that the codes conferred on civil servants a right within the meaning of Article 6(1), the Commission’s role in making recommendations is not likely to be considered as determinative of that right.
468. It should be noted however, that subsection (5)(a) of clause 9 requires the Commission to determine the procedures for the purposes of an investigation or the making of complaints and for the investigation and consideration of complaints. Furthermore, the act of the Commission in making a recommendation would be amenable to judicial review. So it is considered that even if it were concluded that the Commission’s consideration of breaches of the codes constituted the determination of a civil right within Article 6(1), the combination of the procedures for consideration of such matters and the possibility of judicial review of the Commission’s decisions, would satisfy the requirements of Article 6.
469. Clause 13 makes provision for a person to complain to the Commission if he has reason to believe that a selection for appointment breached the requirement that selections be made on merit on the basis of a fair and open competition. The consideration of these complaints does not engage Article 6 ECHR as it does not involve the determination of a civil right within Article 6(1). In particular, selections for appointment do not amount to a civil right. However, the Commission’s role after considering the complaint is limited to making recommendations. In practice, these recommendations are likely to be made confidentially to the department and civil servants concerned. So even if it were concluded that there was a right within the meaning of Article 6(1), the Commission’s role in making recommendations is not likely to be considered as determinative of that right.
470. It should be noted however, that subsection (3)(b) of clause 13 requires the Commission to determine the procedures for the making of complaints and for the investigation and consideration of complaints. Furthermore, the Commission’s recommendations would be amenable to judicial review. So it is considered that even if it were concluded that the Commission’s consideration of complaints constituted the determination of a civil right within Article 6(1), the combination of the procedures for consideration of such matters and the possibility of judicial review of the Commission’s decisions, would satisfy the requirements of Article 6.
471. Clauses 9(6), 13(4) and 14(2) include provisions which enable the Commission to require that information be given to them if they reasonably require that information for the performance of their functions relating to complaints about conflicts with the Civil Service or Diplomatic Service Codes, recruitment competitions or carrying out reviews of recruitment practices. The requirement might result in personal data, for example about an individual's job application, being disclosed to the Commission. This could engage Article 8. However, it is considered that any personal data that is shared under these provisions will be done in a way that complies with Article 8 since it must be done in a way that complies with general information law principles - in particular the Data Protection Act 1998. As a result the data may only be shared in so far as is necessary for the purposes of the Commission's functions (for example, the data could be disclosed in an anonymised form unless it is necessary for the Commission to have information about the individual's identity). In so far as the Commission handles any personal data, they will be bound by general information law principles - including the Data Protection Act 1998 so that, for example, they will only be permitted to keep the data for as long as is necessary.
472. The Government does not consider that the provisions in Chapter 4 of Part 1 (Crown employment: nationality) of the Bill engage Convention rights. It may be argued that Article 6(1) is engaged where rules made under clause 22(10) impose requirements as to nationality and those requirements cannot be satisfied by a person already employed or holding office in a civil capacity under the Crown such that the person can no longer hold that post. However, clause 22(10) provides that nationality rules may exempt persons who were first employed or held office before a specified date from the nationality requirements and allows the granting of exemptions to the rules by "the appropriate person". This would enable a person already in post, to which rules made under clause 22(1) subsequently apply, to remain in post and consequently it could not be argued that Article 6(1) was engaged. The Government therefore does not consider that the provisions of the Bill engage Article 6(1). If an exemption was not granted and a person was required to leave their post (as opposed to, say, the person moving to another post) that decision, not the provisions of the Bill, may engage Article 6(1). In such cases, it is considered that the possibility of bringing a claim in the Employment Tribunal, or judicial review following a fair internal procedure, would satisfy the requirements of Article 6.
473. It may also be argued that Article 8 is engaged where, to evidence compliance with rules made under clause 22(1) imposing requirements as to nationality, a person is asked to provide information as to their nationality or the nationality of persons "connected" to them. Such requirements would not flow from the provisions of the Bill and, in any event, the Government does not consider that a requirement to provide such information would amount to an interference with the exercise of the right to respect for private life such that Article 8 is engaged. Even if Article 8 was engaged it is considered that any interference can be justified under Article 8(2). This does not affect the position that any information provided that constituted personal data would have to be handled in compliance with the Data Protection Act 1998 so, for example, it was only kept for as long as was necessary.
474. Consequently, as the Government does not consider that any of the substantive Convention rights are engaged by the provisions of the Bill Article 14 does not fall to be considered.
475. It should also be noted that the Treaty establishing the European Community, in particular Article 39, requires member States to secure freedom of movement of workers within the European Union but that Article 39(4) permits member States to reserve employment in the "public service" to their own nationals.
Part 3 - The House of Lords
476. It may be argued that the provision under which members of the House of Lords are removed on meeting a condition in Part 1 of Schedule 4 (the conditions which cover serious criminal offences and bankruptcy restrictions orders) engages Article 6 ECHR (right to fair trial). The first question is whether membership of the House of Lords constitutes a “civil right or obligation” for the purposes of that Article. The weight of Strasbourg case law points towards the conclusion that it does not. In the admissibility decision of X v United Kingdom (Application No 8208/78), an applicant complained that in dismissing his peerage claim to the Barony of Eure, the Home Office had not given him a fair hearing. The Commission decided that the claim was inadmissible on the basis that the right to participate in the work of the Lords “falls into the sphere of ‘public law’ rights outside the scope of Article 6”. In addition, the case of Matthews v Ministry of Defence [2003] UKHL 4 is authority for the argument that the substantive content of any rights associated with membership would be extinguished by these new statutory provisions. Article 6(1) is not engaged as it is concerned with procedural guarantees and not the substantive content of national law.
477. Case law supports the notion that membership of a legislative body is not a possession for the purposes of Article 1 of Protocol 1 (protection of property), including the authority of X v United Kingdom mentioned above. In addition, there is authority that a nobiliary title is not, of itself, a possession within the meaning of Article 1 of Protocol 1. In particular, there is the case of De la Cierva Osorio De Moscoso v Spain (Application Nos 41127/98, 41503/98 and 51717/98). There is however an argument that there may be financial loss associated with being removed from the House, for example, no longer being able to claim expenses and allowances available to peers. Even assuming there was a deprivation of a possession for the purposes of Article 1 of Protocol 1, such a deprivation could be justified on the basis that it is in the public interest and subject to conditions provided by law.
478. It may be argued that Article 14 is engaged on the basis that the provisions do not apply to Lords Spiritual. Even if another Convention right was engaged, it is difficult to identify a prohibited ground in this case, although a life peer subjected to the disqualification or expulsion provisions may seek to argue that there is discrimination on the grounds of religion. The justification for this difference in treatment is that the Lords Spiritual are members ex officio. Any reputational damage caused by a Lord Spiritual falling into one of the categories where a life peer would be removed would be primarily to the Church and not the House of Lords. In addition, the Church has in place a range of measures to deal with disciplinary issues among the archbishops and bishops.
479. It may be argued that the operation of the expulsion and suspension provisions in clause 31 engage Article 6 on the basis that, as far as those provisions affect membership of the House, they result in the determination of a civil right. However, the Government considers that for the reasons above concerning the other removal provisions, the contrary view is the better one.
480. Even assuming that expulsion or suspension is regarded as the determination of a civil right or obligation and Article 6 is engaged there are good arguments that the proposals would be compatible with that Convention right. In particular, members of the House of Lords whose conduct is impugned are accorded procedural safeguards. Members subject to these proceedings are judged against a Code of Conduct which has been in place since 2002, and was designed with ECHR compliance in mind. Investigations are conducted by a Sub-Committee of the Committee for Privileges - a cross-party committee of five members appointed by the Committee for Privileges - and are carried out in accordance with procedures in paragraph 19 of the Code of Conduct, which provides that “Members of the House have the right to safeguards as rigorous as those applied in the courts and professional disciplinary bodies”. To this end, impugned members have a right of appeal to the Committee for Privileges, a body which includes four Lords of Appeal.
Part 4 - Public Order
481. Part 4 contains provisions which repeal sections 132 to 138 of the Serious Organised Crime and Police Act 2005 (“SOCPA”).
482. The repeal of sections 132 to 136 means that the statutory regime governing public assemblies in the vicinity of Parliament will be the same as that which applies in the rest of the country, being that which applied in the vicinity of Parliament prior to SOCPA. Under section 14 of the Public Order Act 1986 no advance notice or authorisation is required for public assemblies, only limited conditions may be imposed by the police and the restrictions only apply in respect of assemblies of 2 or more people.
483. The regime under section 14 has already been deemed compatible with the ECHR most recently in the case of R (on the application of Louise Brehony) v Chief Constable of Greater Manchester [2005] EWHC 640 (Admin). Conditions may be imposed on such an assembly only where they are reasonably believed to be necessary to prevent serious public disorder, serious damage to property, serious disruption to the life of the community or unjust intimidation. Insofar as the conditions may only pertain to the place of the demonstration, its maximum duration and the maximum number of persons who may constitute it, they are proportionate in respect of legitimate aims. These conditions may only be imposed by the police who are themselves bound to act compatibly with the ECHR as a public authority under the Human Rights Act.
484. Schedule 5 inserts three provisions into Part 2 of the Public Order Act 1986 with application in the area around Parliament.
485. New section 14ZA of the 1986 Act permits the police to impose such directions in relation to public processions and public assemblies that are reasonably believed to be necessary to maintain access to and from the Palace of Westminster in accordance with requirements specified by the Secretary of State by order. Directions relating to public assemblies may only include conditions as to the place of the demonstration, its maximum duration and the maximum number of persons who may constitute it. The range of directions that can be imposed relating to public processions are not limited in that way. All directions are limited to those that, in the officer’s reasonable opinion, are necessary to meet the specified requirements of maintaining access to and from the Palace of Westminster. Section 14ZA(4) sets out requirements that may be included in the Secretary of State’s order, but this is not an exhaustive list.
486. Both Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the ECHR are potentially engaged by this clause. However the requirements under SOCPA to obtain prior authorisation (section 134) for any demonstration in the vicinity of Parliament, and the corresponding criminal offences (section 132) were not found to be incompatible with the ECHR in Blum, Shaer, Evans, Rai v DPP, CPS and the Secretary of State for the Home Department [2006] EWHC 3209 (Admin). The directions that can be made under section 14ZA are much more limited than those permissible under the SOCPA regime. This clause allows directions to be given for only one reason - the maintenance of access to and from the Palace of Westminster. The Government considers that this is a legitimate aim, namely the proper and secure functioning of Parliament. Since directions are limited in scope and in geographical effect (section 14ZB), the Government’s view is that they are a proportionate interference with individual rights. These conditions may only be imposed by the police who are themselves bound to act compatibly with the ECHR as a public authority under the Human Rights Act.
487. New section 14ZB provides that the area around Parliament is to be specified by the Secretary of State by order. The section states that no point in the area may be more than 250 metres in a straight line from Parliament Square. This section reflects similar provisions in section 138 of SOCPA, however this clause provides for a much smaller area (section 138 specified a one kilometre line). This section has the effect of strictly limiting the geographical area in which conditions may be imposed under sections 14ZA and therefore is one of the tools helping to ensure that any restriction of rights under Articles 10 and 11 is proportionate.
488. New section 14ZC provides that the Secretary of State can make a similar order to that under section 14ZB in relation to another building, outside the Palace of Westminster, should one or both Houses be relocated for the purposes of conducting its meetings or those of its committees. This may happen should the Palace of Westminster undergo large-scale refurbishment works. This provision mirrors the geographical limitations of 250 metres from the relevant building. It is considered that this section raises the same ECHR issues as sections 14ZA and 14ZB and for the same reasons, the Government believes that it is proportionate.
489. The Government therefore considers that these provisions are compatible with the ECHR.
490. The repeal of section 137 of SOCPA removes those restrictions on the operation of loudspeakers within the designated area around Parliament. The use of loudspeakers will continue to be governed by section 62 of the Control of Pollution Act 1974 (“the 1974 Act”) and section 8 of the Noise and Statutory Nuisance Act 1993 (“the 1993 Act”). The clause also makes consequential amendment to the 1993 Act.
491. By removing the provisions of SOCPA which regulate demonstrations and the use of loudspeakers in the vicinity of Parliament these matters will be regulated in a less restrictive way. Both Articles 10 and 11 of the ECHR are engaged by this clause, notwithstanding that the intention of the clause is to bring about more proportionate regimes. However, any interference with these qualified rights would be justified and proportionate under Articles 10(2) and 11(2) in order to prevent these rights being abused and the rights of others suffering in consequence.
492. Regarding the loudspeaker regime, section 62 of the 1974 Act imposes a restriction on the use of loudspeakers in streets at night and in the early hours of the morning. Such restriction is limited in its duration and targeted at the prevention of disorder and the protection of the rights of others. As such it pursues a legitimate aim and is a proportionate means of achieving it. Furthermore, under section 8 of the 1993 Act the local authority, another public authority bound to act compatibly with the ECHR, is able to consent to the use of loudspeakers (with conditions where appropriate) in its area in a way which would otherwise contravene the 1974 Act.
493. The Government considers that the effects of the repeals and the new clauses result in an ECHR compatible legal framework for managing protests in the vicinity of Parliament.
Part 5 - Human rights claims against devolved administrations
494. Article 6 and Article 1 of Protocol 1 of the Convention may be engaged by these clauses, which insert a one year time limit into the Scotland Act 1998 (clause 36), Northern Ireland Act 1998 (clause 37) and the Government of Wales Act 2006 (clause 38). The new time limit will apply to proceedings brought under those Acts in relation to executive acts of the Scottish Ministers, Northern Ireland Ministers and Departments and the Welsh Ministers where a claim is brought on the ground that they have acted incompatibly with the Convention rights. The time limit mirrors that under section 7(5) of the Human Rights Act 1998, which applies to proceedings brought under that Act where it is alleged that a public authority has acted incompatibly with the Convention rights under section 6(1) of that Act. The intention is therefore to ensure that the same time limit will apply in relation to executive acts of the relevant devolved Ministers and Departments (though it will not apply to claims under the devolution Acts relating to the making, confirmation or approval of subordinate legislation), whether the proceedings are brought under the relevant devolution Act or the Human Rights Act 1998.
495. The time limits in clauses 36 to 38 provide that proceedings must be brought within one year of the date on which the act complained of took place, which is subject to such longer period as a court or tribunal considers equitable having regard to all the circumstances. This is further subject to any stricter time limit which governs the proceedings in question. In very many cases, proceedings are brought by way of judicial review and therefore as at present will continue in England, Wales and Northern Ireland (but not Scotland, where there is no stricter time limit for judicial review) to be subject to the rule that judicial review proceedings must generally be brought within 3 months. The time limit will apply to any proceedings brought after the clauses are commenced, whenever the act complained of took place. It will therefore operate on a partially retrospective basis, in that it will affect accrued rights and affect the legal consequences of events which occurred before commencement. In relation to Scotland, clause 36 also preserves the effect of the Act of the Scottish Parliament which applied the time limit to proceedings brought on or after 2 November 2009.
496. In so far as the time limits engage the ECHR, the questions are whether the time limit pursues a legitimate aim, and complies with the principles of proportionality and legal certainty. There must also be a reasonable relationship between the means employed and the aim sought to be achieved. The legitimate aims in inserting this time limit into the devolution settlements are to prevent stale claims, promote legal certainty and to provide for a consistent time limit for proceedings in relation to executive acts whether brought under the Human Rights Act or the devolution settlements. In accordance with cases such as Stubbings v UK ((1997) 23 EHRR 213), the Government considers that the introduction of a one year time limit for Convention-based claims, consistent with that which already exists in the Human Rights Act 1998, is a proportionate measure. In so far as the time limit will apply to post-commencement proceedings but may affect pre-commencement actions, the Government considers that the power of courts and tribunals to extend the one year period for such longer period as is equitable in all the circumstances will operate to cure any residual unfairness to a litigant whose claim might otherwise be barred. The Government therefore considers that these clauses are proportionate measures and compatible with the Convention rights.
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