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Joint Committee On Human Rights Third Special Report


Letter from the Chairman of the Committee to Lord Falconer of Thoroton QC, Minister of State, Cabinet Office


  The Joint Committee on Human Rights will shortly be deciding whether or not it is necessary to consider the above Bill in detail. To assist with its decision, the Committee would be grateful for your comments on the following points raised by its legal Adviser. Our starting-point is of course the statement made under section 19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

  Whilst the Committee does not, as a general rule, intend to express any view on the underlying policy issues, its consideration of the Bill will be greatly assisted by an understanding of the factors which have led you to make a statement of compatibility under section 19 of the Human Rights Act, and more particularly, to conclude that any curtailment of rights under the Convention which the Bill may entail is justified by reference to the wider public policy considerations set out in the Convention.

  1.  The capacity to ensure that powers under the Bill will be exercised compatibly with Convention rights. The delegated legislative powers which would be granted to Ministers under the Bill are so broad that the Bill itself can offer no guarantee that a Statutory Instrument made under it would incidentally or directly be incompatible with a Convention right. Furthermore, those Statutory Instruments which amend or repeal primary legislation would themselves be primary legislation for the purposes of the Human Rights Act 1998 (see paragraph (f)(iii) of the definition of "primary legislation" in section 21(1) of that Act), and so would not be invalid, ineffective, or susceptible to being quashed by reason only of an incompatibility with a Convention right. Such "Henry VIII" clauses might be thought to need particularly clear and determinate delimitation in order to offer adequate legislative protection to all Convention rights.

  (a)  Please would you inform the Committee of the steps which you envisage taking to ensure that the powers under the Bill are not used in a manner which would be incompatible with Convention rights, for example by an enhanced definition of the powers in the Bill.

  2.  Protection for regulatory provisions which directly or indirectly protect Convention rights. The Bill permits the removal of "burdens" (clause 1), a term which includes "a restriction, requirement or condition (including gone requiring the payment of fees or preventing the incurring of expenditure) or any sanction (whether criminal or otherwise) for failure to observe a restriction or to comply with a requirement or condition", together with "any limit on the statutory powers of any person (including a limit preventing the charging of fees or the incurring of expenditure)" (clause (2)(1)). What appears to one person to be a burden can easily be another person's safeguard, particularly when the "restriction, requirement or condition" in question is imposed in order to safeguard Convention rights of others against unjustified interference by a public authority (a term which has an extended meaning under the Human Rights Act 1998). There is a risk that the power under clause 1 might be exercised in such a way as to remove safeguards which were imposed as part of a scheme of protection for Convention rights in a particular context.

  (b)  Please would you inform the Committee of the steps which you envisage taking, whether by way of amendment to the Bill or otherwise, to ensure that no "burden" is removed where the effect would be to deprive a third party, directly or indirectly, of safeguards for their Convention rights.

  Finally, the Committee would like to know, please, what representations you have received in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed. The Committee would be grateful for a reply by 8 March 2001.

14 February 2001

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