RELIEVING REGULATIONS OF THE REQUIREMENTS
OF THE HUMAN RIGHTS ACT 1998
1.18 There are two ways in which the regulations
might seek to exclude, or have the effect of excluding, the obligation
under section 6 of the Human Rights Act 1998 to act in a manner
compatible with Convention rights. We raised these points with
the Government in a letter dated 21 January 2004 from our Chairman
to the Minister for the Cabinet Office and Chancellor of the Duchy
of Lancaster, Mr. Douglas Alexander MP.[19]
The Government's response came in a letter from the Minister dated
30 January 2004.[20]
We now consider the matters in the light of the Government's response.
Regulations disapplying substantive provisions
of the Human Rights Act 1998
1.19 First, the regulations might include a provision
which purports to disapply the provisions of the Human Rights
Act 1998. The Government took the view that such regulations would
be invalid. The Explanatory Notes to the Bill say—
Clause
21(3)(j) enables regulations to "disapply or modify an enactment
or a provision made under or by virtue of an enactment"….Having
taken Parliamentary Counsel's advice on how the normal principles
of the construction of delegated powers would apply to this particular
provision, it is not possible to envisage circumstances in which
this power would lawfully enable regulations to make a substantive
amendment to a "constitutional enactment", such as the
Human Rights Act.[21]
1.20 This was amplified in the Government's response
to our questions. The Minister made the following points:
a) that the legislation would be read by courts
in the light of a number of interpretative assumptions, such as
the assumption that Parliament did not intend the power to be
used unreasonably or for an improper purpose;
b) that the clause does not contain an express
power to disapply or modify what Laws LJ in Thoburn v. Sunderland
City Council[22]
called a "constitutional statute", such as the Human
Rights Act 1998, so there are no clear words to suggest that Parliament
intended the power to be used for that purpose;
c) that if words expressly excluding any power
to amend the Human Rights Act 1998 were to be included in this
Bill, powers enacted in other legislation without such express
words might be interpreted as permitting such amendments.
1.21 We accept that the words of clause 21(3)(j),
standing alone, would not be likely to be interpreted as enabling
regulations to be made making a substantive amendment to, or disapplying,
the Human Rights Act 1998. We also accept proposition a) above.
However, we consider that clause 21(3) as a whole might well be
interpreted as allowing regulations to disapply or modify the
1998 Act. We do not think that the Government's arguments give
sufficient weight to the opening words of clause 21(3): "Emergency
regulations may make provision of any kind that could be made
by Act of Parliament or by the exercise of the Royal Prerogative;
in particular, … ". The provision which can be made
by Act of Parliament includes the amendment or disapplication
for particular purposes of the Human Rights Act 1998.
1.22 We note the Government's recognition of those
judicial authorities which hold that there are some statutes of
such constitutional significance that Parliament cannot be taken
to have intended that they can be amended or repealed unless Parliament
has expressly stated that intention. This is obviously potentially
important for the effective protection of human rights. We hope
that it will be possible in due course to identify the statutes
or statutory provisions which should be regarded as having constitutional
status for this purpose. However, we think that the opening words
of clause 21(3) are capable of being read as expressly conferring
a power to modify or disapply even a constitutional statute such
as the Human Rights Act 1998, and we do not consider that the
words of clause 21(3)(j) can properly be read as a limitation
on the generality of the opening words of clause 21(3).
1.23 We are not persuaded that specifically limiting
clause 21(3) to exclude power to make regulations modifying or
disapplying the Human Rights Act 1998 would lead to other power-conferring
provisions which do not contain such words of exclusion being
interpreted as allowing regulations to modify or disapply the
1998 Act. Most power-conferring statutory provisions do not contain
words expressly permitting regulations to do anything which could
be done by Act of Parliament. Clause 21(3) does, and is therefore
in a very special position.
1.24 We therefore consider that the
wide opening words of clause 21(3) represent a threat to human
rights. We recommend that the clause should be amended to reflect
the Government's intention that the clause should not authorise
regulations to modify or disapply the Human Rights Act 1998, and
we draw this to the attention of each House.
Regulations amending primary legislation
1.25 The opening words of clause 21(3) would appear
to allow regulations to amend primary legislation, including Acts
of Parliament. The Human Rights Act 1998, section 21(1), defines
"primary legislation" for the purposes of that Act as
including "an order or other instrument made under primary
legislation … to the extent to which it … amends any
primary legislation". Section 3(2)(b) of the Act provides
that an incompatibility with a Convention right "does not
affect the validity, continuing operation or enforcement of any
incompatible primary legislation" (as defined in section
21). If a piece of "primary legislation" in this extended
sense is incompatible with a Convention right, the only legal
remedy is a declaration of incompatibility under section 4 of
the Act. A declaration of incompatibility, like the incompatibility
itself, "does not affect the validity, continuing operation
or enforcement of the provision in respect of which it is given"
(section 4(6)(a)).
1.26 It seems, therefore, that a regulation which
amends primary legislation would itself be primary legislation
to that extent. Such a regulation could not be quashed or set
aside in legal proceedings on the ground that it violates a Convention
right.
1.27 In its response to the Committee, the Government
told us that it did not intend to produce a situation in which
regulations, even if they amend an Act of Parliament, would be
treated as primary legislation for the purposes of the Human Rights
Act 1998 and so would be valid notwithstanding an incompatibility
with a Convention right. We were informed that the Minister is
considering whether additional action is needed to make this clear.
1.28 We welcome this, and hope that
the drafting of the clause will be amended to reflect the Government's
intention in this respect. We draw this to the attention of each
House.
THE RIGHT TO BE FREE OF FORCED LABOUR
1.29 The Government suggests that the Bill may engage
the right to be free of forced labour, under ECHR Article 4.2.[23]
ECHR Article 4.2 provides: "No one shall be required to perform
forced or compulsory labour". As noted above, the Government
draws attention to clause 22(3)(a) of the Bill as a safeguard
for that right. Clause 22(3)(a) provides that emergency regulations
may not require a person, or enable a person to be required, to
perform military service. The Government comments: "This
will ensure that rights under [ECHR] Article 4.2 (prohibition
on forced labour) are not infringed".[24]
1.30 We have come to the conclusion that there is
no significant risk that regulations could interfere with rights
under ECHR Article 4, for two reasons.
a) First, Article 4.3 states, "For the purpose
of this Article the term 'forced labour' shall not include: …
(b) any service of a military character or, in case of conscientious
objectors in countries where they are recognised, service exacted
instead of compulsory military service; …". It follows
that the exclusion from the Bill of a power to make regulations
requiring, or enabling someone to require, a person to perform
military service goes beyond the protection necessary under ECHR
Article 4.2.
b) Secondly, Article 4.3(c) excludes from the
definition of forced labour "any service exacted in case
of an emergency or calamity threatening the life or well-being
of the community".
1 Bill 14-EN Back
2
Fifteenth Report of Session 2002-03, Scrutiny of Bills and Draft
Bills: Further Progress Report, HL Paper 149, HC 1005. Back
3
Defence Committee, Seventh Report of Session 2002-03, Draft Civil
Contingencies Bill, HC 557 Back
4
See Report from the Joint Committee, footnote following, Appendix
1: Memorandum from the House of Lords Select Committee on the
Constitution, pp. 85-87. Back
5
Joint Committee on the Draft Civil Contingencies Bill, Session
2002-03, Draft Civil Contingencies Bill, HL Paper 184/HC 1074. Back
6
Fifteenth Report, op cit., para. 3.4. Back
7
On the proposed meaning of 'emergency', the declaration of an
emergency and the power to make regulations during an emergency,
see ibid., paras. 3.6-3.19. Back
8
Fifteenth Report, op cit., para. 3.25, quoting Defence Committee,
op cit., para 68. Back
9
ibid., para. 3.26. Back
10
ibid., paras. 3.33, 3.35. Back
11
Cabinet Office, The Government's Response to the Report of the
Joint Committee on the Draft Civil Contingencies Bill, Incorporating
the Government's Response to the Report of the House of Commons
Defence Committee on the Draft Civil Contingencies Bill, CM 6078
(London: TSO, 2004). Back
12
ibid., p. 14. Back
13
Senior Ministers are the Prime Minister, any of Her Majesty's
Principal Secretaries of State, and the Commissioners of HM Treasury:
clause 19(3). Back
14
ECHR Protocol No. 1, Article 1. Back
15
ECHR Article 5. Back
16
ECHR Article 11. Back
17
Bill 14-EN, para. 72. Back
18
ibid., paras. 73-75. Back
19
See Appendix 1a. Back
20
See Appendix 1b. Back
21
Explanatory Notes, op cit., para. 76. Back
22
[2002] EWHC Admin 195, [2003] QB 151, DC. Back
23
Explanatory Notes, op cit., para. 72. Back
24
Explanatory Notes, op cit., para. 75. Back
