Joint Committee on Statutory Instruments Third Report


Memorandum by the Department of Trade and Industry


  1. The Committee has asked for a Memorandum on the following point:

    "Given that these Regulations amend, in considerable detail, four Acts of Parliament explain why the Minister responsible for them did not follow guidance issued by the Home Office (the Human Rights Act 1998 Guidance for Departments, second edition, which is available on the internet) which states at paragraph 40 that the Minister in charge of secondary legislation not subject to affirmative resolution which amends primary legislation should make a written statement regarding its compatibility with Convention rights in an appropriate form."

  2. The Minister responsible for the Regulations did not follow the Guidance to which the Committee refers since the Guidance was not drawn to the Minister's attention. Those in the Department concerned with the implementation of the underlying EU Directive were themselves unaware of the Guidance until the Committee requested a Memorandum relating to it. They were, of course, aware of the provisions of section 19 of the Human Rights Act 1998, which imposes obligations on Ministers in charge of Bills. The section does not refer to subordinate legislation nor to guidance relating to such legislation.

  3. The Department is grateful to the Committee for drawing the Guidance to its attention. Being unaware of the Guidance at the time the Regulations were completed, the draftsman of the Regulations did not consider the desirability of a Minister stating that Regulations implementing Community obligations were compatible with the European Convention on Human Rights, or in the terms of the 1998 Act, "Convention rights". Such Regulations do not, in any event, entrench legislative provisions in the same way as those contained in a Bill are likely to become entrenched.

  4. Further, the Department has been unable to find any reference to the Home Office Guidance in Statutory Instrument Practice or associated circulars.

  5. The Department does wonder about the appropriateness of such statements by Ministers in relation to Regulations which implement a Directive. Paragraphs 116-120 of the Home Office Guidance correctly observe that Community law is, in practical terms, required to be compatible with the Convention. It occurs to the Department that any provisions, in regulations made under section 2(2) of the European Communities Act 1972, which were not compatible with the Convention, would be ultra vires that section.

  6. For the avoidance of doubt the Department does not consider that the Regulations are in any way incompatible with the Convention or with "Convention rights".

27 October 2000

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