Joint Committee On Human Rights - Twenty-Third Report

Joint Committee On Human Rights Twenty-Third Report

Summary

The Joint Committee on Human Rights examines every Bill presented to Parliament. With Government Bills its starting point is the statement made by the Minister under section 19 of the Human Rights Act 1998 in respect of compliance with Convention rights as defined in that Act. However, it also has regard to the provisions of other international human rights instruments to which the UK is a signatory.

The Committee publishes regular progress reports on its scrutiny of Bills, setting out any initial concerns it has about Bills it has examined and, subsequently, the Government's responses to these concerns and any further observations it may have on these responses. From time to time the Committee also publishes separate reports on individual Bills.

This is the Committee's ninth and final scrutiny of Bills progress report of the 2003-04 Session, and its thirteenth report in all on Bills before either or both Houses.[1] The Committee has considered a total of 105 public bills, 35 of which were Government Bills. It has also examined the four Private Bills presented this Session,[2] and the Draft Charities Bill,[3] the Draft School Transport Bill[4] and the Draft Criminal Defence Service Bill.[5]

In this report the Committee comments for the first time on the Constitutional Reform Bill and the Mental Capacity Bill, which are both being carried over into Session 2004-05.

In relation to the Constitutional Reform Bill

The Committee welcomes in principle the inclusion in the Bill of an express recognition of the constitutional principle of judicial independence, but it considers that the particular duties imposed on the Minister in relation to judicial independence in the Bill are too weakly stated. The Committee considers that the functional separation of those parts of the office of Lord Chancellor which are identifiably judicial, executive and legislative would enhance the UK's compliance with the guarantee of independence and impartiality of the judiciary. However, it also considers that the ministerial power to give guidance to the Judicial Appointments Commission as to how to assess candidates for appointment is incompatible with the principle of judicial independence, as is the requirement that the Lord Chief Justice's disciplinary powers can only be exercised "with the agreement of the Minister".

In relation to the abolition of the Appellate Committee of the House of Lords and the creation of a new Supreme Court, and the disqualification of serving judges from sitting in Parliament, the Committee considers that such steps would make it less likely that violations of Article 6(1) ECHR will occur in practice. The Committee also recommends that provision be made to ensure that judicial office holders do not sit as judges while they are also members of the House of Commons. The Committee agrees with the House of Lords Select Committee on the Bill that a parliamentary committee would be desirable to act as a channel of communication between the judiciary and Parliament.

In relation to the Mental Capacity Bill

The Committee considers that the Bill should be broadly welcomed as a measure which enhances the human rights of people who lack capacity, but it has a number of concerns about the adequacy of various safeguards contained in the Bill. It has written to the Minister about these concerns and will report again in light of the Minister's response.

The Committee is concerned that the provisions in the Bill concerning the use or threat of force or other restrictions of liberty of movement are likely to lead to deprivations of liberty which are not compatible with Article 5(1) ECHR. It is also concerned about the absence from the Bill of any of the procedural safeguards which the judgment of the European Court of Human Rights in HL v UK makes clear are required by Article 5 ECHR in respect of compliant incapacitated people. The Committee also expresses concern about the adequacy of the safeguards surrounding the use of advance directives, and about the fact that the presumption in favour of life-sustaining treatment is not sufficiently strong in the Bill. It also considers that the safeguards provided by the Bill in relation to the carrying out of research on or in relation to people lacking capacity are less strict than the safeguards contained in the European Convention on Human Rights and Biomedicine.

In relation to other Bills

The Committee welcomes amendments made to the Housing Bill in response to points which it had previously raised. The Committee draws attention to potential incompatibilities with Convention rights in relation to a number of private Members' Bills.

2 Third Report, Session 2003-04, Scrutiny of Bills: Progress Report, HL Paper 23/HC 252; Fourth Report, Session 2003-04, Scrutiny of Bills: Further Progress Report, HL Paper 34/HC 303; Eighth Report, Session 2003-04, Scrutiny of Bills: Third Progress Report, HL Paper 49, HC 427; Back

3 Twentieth Report, Session 2003-04, Scrutiny of Bills: Eighth Progress Report, HL Paper 182, HC 1187 Back

4 Seventeenth Report, Session 2003-04, Scrutiny of Bills: Seventh Progress Report, HL Paper 157, HC 999; Twentieth Report, Session 2003-04, Scrutiny of Bills: Eighth Progress Report, HL Paper 182, HC 1187 Back

5 Seventeenth Report, Session 2003-04, Scrutiny of Bills: Seventh Progress Report, HL Paper 157, HC 999 Back



© Parliamentary copyright 2004	Prepared 29 November 2004