Joint Committee On Human Rights Twenty-Third Report

1  Introduction

1. The most important strategic question facing us on our establishment as the Joint Committee on Human Rights in the current Parliament, in July last year, was how we should interpret the terms of reference accorded us by both Houses in order to fulfil them in the most effective way over the course of the Parliament.

2. Our terms of reference[1] prescribe certain mandatory requirements for us to consider and report on remedial orders. Other than that, they are permissive and broad, allowing us to consider "matters relating to human rights in the United Kingdom (but excluding consideration of individual cases)".

3. Over the course of the 2001-2005 Parliament our predecessor Committee developed and put into effect working priorities and practices in accordance with its own interpretation of those terms of reference. That Committee provided a full and helpful account of its work, and the principles which had guided that work, in its final Report of the Parliament, The Work of the Committee in the 2001-2005 Parliament.[2] In that Report it also provided a number of suggestions, based on its own experience, for how its successor Committee might wish to fulfil its terms of reference. We are grateful to our predecessors for providing this record of their work, and we have taken full account of their suggestions.

4. We nevertheless took an early decision to examine afresh, and with an open mind, the principles which had governed our predecessors' working methods and those which we would adopt for the remainder of this Parliament. The main question facing us as part of this exercise was the extent to which we would follow our predecessors' example in seeking to scrutinise all bills introduced into Parliament for their human rights implications, principally in relation to their compatibility with the Convention rights as defined by the Human Rights Act 1998, in order to report their views to both Houses.

5. Our predecessors' early decision to undertake such comprehensive legislative scrutiny was one which had profound effects on their work throughout the course of the Parliament, with attendant advantages and disadvantages. Broadly speaking, it gave them a distinctive parliamentary role of advising both Houses in carrying out their prime function of legislation. The advice provided by the Committee through legislative scrutiny was swiftly recognized, both within Parliament and Government and more widely, to be authoritative and impartial. Some have argued that it is the seriousness of this legislative scrutiny work which led to the Committee's views being highly-regarded when it turned its attention to other subjects.

6. At the same time, the workload involved in comprehensive legislative scrutiny prevented the Committee, with its finite time and resources, from undertaking much proactive policy-orientated work which could have helped to shape the human rights agenda within and outside Parliament. It did carry out important and influential inquiries into subjects such as the case for a Human Rights Commission[3] and for a Children's Commissioner for England,[4] into the meaning of "public authority" in the Human Rights Act,[5] and into the human rights aspects of the serious problem of deaths in custody.[6] It also sought to report on UK compliance with a number of UN human rights treaties,[7] and, less formally, to monitor the Government's performance in responding to declarations of incompatibility made by UK courts and to judgments against the UK made in Strasbourg.[8] However, if the Committee had not committed itself to scrutinising all primary legislation, it could have undertaken more of these other types of work, or expanded further into areas of scrutiny work such as pre-legislative or post-legislative scrutiny. There have also been criticisms that the Committee's focus on legislative scrutiny work has made it of less relevance to the more political environment of the House of Commons, both because of the nature of that work and because most major Government bills start in that House, with the consequence that in a lot of cases the Committee's Reports on those bills have not been published in time to influence debate there. There is also concern that our relative lack of work on pre-legislative scrutiny and public policy generally has meant that we have missed or reduced the opportunity to influence Government policy at a stage when—given the realities of the parliamentary system—a shift in policy is more likely to occur.

7. It is against this background that we decided we should formally examine our working practices in a considered and evidence-based manner before arriving at conclusions. In November 2005 we agreed broad terms of reference for this exercise and also decided to appoint a specialist adviser to examine the matter from an independent expert yet detached perspective in order to provide us with material on which we could base decisions. The terms of reference which we announced were as follows:

Taking into account suggestions made by the JCHR in the previous Parliament in its Nineteenth Report of Session 2004-05, the Committee will be considering how it can best fulfil its terms of reference over the course of this Parliament. Amongst the main matters it will be considering are—

  • the balance to be struck between its legislative scrutiny work, other scrutiny work such as that related to international treaties, and more thematic, policy-orientated work
  • the priorities, procedures and working practices which it will seek to employ in undertaking each kind of work, including whether the emphasis of its legislative scrutiny work should be changed to focus to a greater extent on pre-legislative scrutiny (e.g. Green and White Papers and draft bills) and/or post-legislative scrutiny (e.g. delegated legislation, statutory guidance and codes of practice).[9]

8. On 1 February 2006 we appointed Francesca Klug, Professorial Research Fellow at the LSE's Centre for the Study of Human Rights, as a specialist adviser to work on these questions and propose strategic options for us to consider. Professor Klug's report , which she presented to us in early July, is published as an Appendix to this Report.[10] We are indebted to her for agreeing to take on this work and for producing such a well-researched and well-informed report. It includes a wealth of useful information, views and analysis. We also record our gratitude to Professor Klug's research assistant Helen Wildbore for the extensive work she carried out in preparation of the report.

9. It is now just over a year since we were set up at the start of this Parliament. Over that period, pending the outcome of our examination of our working practices, we have been operating in practical terms in roughly the same way as our predecessors. However, there are some important differences which deserve explanation.

10. Unlike our predecessors, we have not formally accorded priority of any kind to legislative scrutiny work over other work, and while we have continued to scrutinise and report on nearly all Government bills, and have scrutinised some private bills on request from the Lord Chairman of Committees in the House of Lords,[11] we have not committed ourselves to report on all bills. For those bills which we have scrutinised we have sought to report as early as possible in the parliamentary process, taking into account our work on other matters, but we have not set ourselves any targets for the stages in the parliamentary process by which we will aim to report, such as the "second reading in the second House" target adopted by our predecessors. Moreover, during this Session we have not scrutinised any private Members' bills. In respect of private Members' bills originating in the Commons, we would scrutinise them if they appeared likely to become law and raised significant human rights issues. In respect of bills originating in the Lords we would place less emphasis on whether they were likely to become law, and consider scrutinising them on an ad hoc basis depending on their human rights significance and representations received.

11. In the remainder of this Report we do not exhaustively reconsider all the issues covered so clearly by Professor Klug's report. Our Report is intended to set out a strategic statement of intent of the way we will seek to fulfil that limb of our terms of reference under which we consider matters relating to human rights in the UK and report on them to Parliament. That statement of intent will be subject to refinement and elaboration over time.

1   House of Commons Standing Order No. 152B; House of Lords Order of Appointment, 19 July 2005 Back

2   Nineteenth Report of Session 2004-05, The Work of the Committee in the 2001-2005 Parliament, HL Paper 112, HC 552 Back

3   Sixth Report of Session 2002-03, The Case for a Human Rights Commission, HL Paper 67-I, HC 489-I Back

4   Ninth Report of Session 2002-03, The Case for a Children's Commissioner for England, HL Paper 96, HC 666 Back

5   Seventh Report of Session 2003-04, The Meaning of Public Authority under the Human Rights Act, HL Paper 39, HC 382 Back

6   Third Report of Session 2004-05, Deaths in Custody, HL Paper 15, HC 137 Back

7   For a summary of these reports see Nineteenth Report of Session 2004-05, op. cit. Back

8   Nineteenth Report of Session 2004-05, op.cit. Back

9   Press notice No. 11 of Session 2005-06, 11 November 2005 Back

10   Appendix 1 Back

11   Appendix 2 Back

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Prepared 4 August 2006