Joint Committee On Human Rights Twenty-Third Report


2  Our proposals

The options in the Klug report

12. In the concluding section of her report, Professor Klug put forward 3 potential options for future working practices for us to consider in the context of the research, reflections and comments contained in the rest of her report. These options are as follows:

OPTION A

—  Provide a comprehensive 'bill scrutiny service,' to both Houses of Parliament as the major purpose of the Committee.

—  Ensure that all government and private bills meet the 2nd reading target as a matter of first priority.

—  Scrutinise all private Members' bills (PMBs) which a) receive 2nd reading in either house b) elicit considerable public interest c) at the specific request of the bill sponsor.

—  Only call witnesses or examine wider evidence in a handful of bills of exceptional significance

—  Scrutinise treaty monitoring body reports and government responses to these.

—  Monitor government compliance with European Court of Human Rights decisions and extend this to Declarations of Incompatibility issued by domestic courts

—  Only occasion call ministers as witnesses for specific purposes, provided this does not incapacitate the 2nd reading target.

—  Scrutinise draft bills where possible but only scrutinise other pre-legislative policy documents or White Papers on an exceptional basis and not at the expense of meeting the 2nd reading target.

—  Continue to press Government to provide a Human Rights Memorandum or more detailed Explanatory Notes on s19 statements that accompany each bill.

OPTION B

—  Only scrutinise published government bills and only on an exceptional basis, usually where they are of major human rights significance. No longer consider that the purpose of the committee is to provide a 'bill service' on any kind of bill.

—  Conduct regular 'thematic enquiries' on human rights issues of relevance to the wider public, using the approach and techniques associated with departmental select committees.

—   Seek to raise the profile of the Committee by conducting enquiries on significant human rights issues of national concern. Examples in the current session might have included reviewing allegations about the UK's role in so-called 'extraordinary renditions' or the implications of introducing the equivalent of 'Megan's Law' into the UK.

—   Ensure there is sufficient 'slack' to be able to respond rapidly to major unexpected developments, such as conducting a review into claims that the Probation Service or Parole Board are becoming 'distracted' by human rights concerns or into the operation of the HRA within public services more generally, in the context of the government's wider review.

—  Conduct pre- and post- legislative enquiries at the time where they are most likely to be of influence, for example into the implications of extending detention without full trial beyond 28 days or into the effects of the Government's 'Respect Agenda' on young people in specific localities, after the Police and Justice Bill has come into force.

OPTION C

—  Retain the intention to scrutinise and report on all Government Bills which raise "significant human rights issues," and all private bills whenever feasible, in the context of the role allotted to Parliament in the scheme of the Human Rights Act,

—  Only scrutinise PMBs on an exceptional basis, and only if they have a serious chance of becoming law or are of major national significance.

—  Revisit the definition of "significant" human rights to elaborate further on the criteria used to decide significance, which may be expanded to include government obligations to 'protect' rights as well as refraining from breaching them. Committee members to engage with this process as an opportunity to reassess meaning and scope of human rights.

—   Delegate to the legal adviser the responsibility to develop a system for sifting all Government Bills to determine if a) they reach the new 'significance' threshold b) they reflect a 'pattern of incompatibility' threshold which the legal advisor will draw up based on past patterns of repeated incompatibility.

—  Only report on Bills which meet these two sets of criteria to the Committee and to the House and no longer spend Committee time on Bills that do not raise a 'significance' or 'pattern of incompatibility' issue.

—  Frontload the timetable so that the legal adviser and Committee decide whether a Bill is sufficiently 'significant' (based on criteria above) to be reported to the House within 2-3 weeks of publication.

—  Try to ensure that each Bill is reported in its own freestanding report wherever possible, to increase accessibility and comprehension for MPs and Peers.

—  Consider the case for the Committee carrying out its own assessment of compatibility, in its own 'less technical voice' when appropriate—in particular where proportionality considerations apply—based on the examination of witnesses and evidence, rather than necessarily determine 'risk of incompatibility' by 'second guessing' the courts.

—  Use the additional time freed from streamlining bill scrutiny for considering some or all of the following functions when appropriate

(i) reporting on all Declarations of Incompatibility issued by the domestic courts, advising parliament on whether, and if so how, the government should respond to them

(ii) Conduct pre- and post -legislative enquiries at the time where they are most likely to be of influence (see option B).

(iii) Continue to carry out 'scrutiny enquiries,' where appropriate, of the sort that have been piloted this year on counter terrorism and torture, where Bill scrutiny can be conducted in a wider policy context.

—  Hold regular sessions with the Human Rights minister and staff on the implementation of the Human Rights Act and other related human rights issues

—  Ensure there is sufficient 'slack' to be able to respond rapidly to major unexpected developments and seek to raise the profile of the Committee by conducting enquiries on significant human rights issues of national concern (see option B).

—  Continue to monitor treaty body reports and Strasbourg decisions if there is capacity to do so.

—  Continue to press Government to provide a Human Rights Memorandum (see option A).

13. Adoption of Option A would involve almost exclusive concentration on legislative scrutiny, maintenance of the previous Committee's practice of inquiring into the Concluding Observations of UN treaty monitoring bodies, and a development and systematisation of the previous Committee's work in monitoring declarations of incompatibility and adverse Strasbourg judgments, and the Government's response to those. Unlike our own practice hitherto, or that of our predecessor Committee, it would involve exclusion of all other types of work from our programme.

14. Option B would substantially reduce our work on scrutiny of bills presented to Parliament, restricting it to a small number of Government bills. In place of this work we would conduct more inquiries into significant and urgent matters of national human rights significance and expand pre-and post legislative scrutiny, while continuing to undertake thematic inquiries, such as that undertaken by our predecessors into deaths in custody or our current inquiry into human trafficking.

15. Option C involves a less radical reduction in legislative scrutiny work than that contained in Option B, effected by the introduction of a sifting system which would still cover all Government bills and private bills introduced to Parliament but would reduce the number of Bills considered and reported on substantively by the Committee. This reduction would permit an expansion in the other types of work set out in Option C. allowing us greater flexibility to determine the relative priority to be accorded to different elements of our work.

16. We have considered these Options and have decided that, subject to further elaboration and prioritisation, Option C broadly represents the most balanced and effective way for us to operate over the rest of this Parliament. The main differences with the working practices of the previous Committee are—

17. We now consider in more detail the different elements of Option C.

Legislative scrutiny

18. Under this heading we consider scrutiny of primary legislation. Pre-legislative and post-legislative scrutiny, and other forms of scrutiny, monitoring and inquiry work, are considered separately below (paragraphs 51 to 77).

19. After consideration of the best means of introducing a more focused system of legislative scrutiny, we have drawn up a set of proposals for a sifting and scrutiny system, based upon the principles set out in Option C, which we intend to introduce from the beginning of Session 2006-07. We emphasise that the purpose of this new system is to build on and develop the methods of the previous Committee in scrutinising legislation in order to alert both Houses of Parliament to occasions on which there was a risk that they would legislate in a manner incompatible with the Convention rights, or with rights in other international human rights treaties to which the UK is a party, as well as to inform Parliament of other human rights matters raised by legislation, including whether legislation was likely to enhance the promotion and protection of human rights in the UK, or was missing an opportunity to do so. The proposed new system is designed to introduce a more effective method of prioritising the most significant human rights issues, as well as to improve the accessibility, timeliness and overall value of the legislative scrutiny work of the Committee.

20. In order to streamline legislative scrutiny, we have given consideration to four main matters.

21. Firstly, the scope of legislative scrutiny, and whether it should continue to cover comprehensively all Government bills, private bills and private Members' bills.

22. Secondly, we have reconsidered how to define a "significant human rights issue" with a view to setting a new and higher threshold of significance which a bill must cross to merit being drawn to Parliament's attention. The intended effect of this raising of the threshold is that we will report substantively both on fewer bills and on fewer points in relation to the bills we do report on. It is at this stage difficult to estimate with any precision what the effect of this redefinition will be on the number of bills, or provisions of bills, which we will draw to the attention of both Houses. However, in her report Professor Klug points out that the proportion of Government Bills which we and our predecessors have drawn to the attention of both Houses has grown since the start of the 2001-2005 Parliament.[12] It is not clear whether this is mainly because we have become more scrupulous or because Government legislation has become more likely to present potential human rights problems, or both.

23. Thirdly, we propose to introduce a process for sifting bills which ensures that all Government and private bills are initially scrutinised by our Legal Adviser, but only those which cross the significance threshold will be subjected to full scrutiny by him and then considered by us. This will mean that our available time for legislative scrutiny is mainly spent scrutinising significant human rights issues rather than considering which bills to prioritise or scrutinising issues which are not sufficiently significant. Comprehensive coverage of bills will therefore continue at staff level, but we will actively consider fewer bills, so enabling us to focus on the most significant issues involved in scrutiny and on the other functions which we decide to prioritise.

24. Fourthly, we have agreed a procedure and associated timetable for scrutiny of those bills which do cross the significance threshold, enabling us to report substantively to Parliament as early as possible in a bill's passage through Parliament, ideally while it is still in the first House, to maximise the impact of our reports. Such early reporting would be earlier than we have been able to achieve in this Session. We stress that the timetable, as set out in this Report, is informal and provisional. We will operate it from the beginning of next Session on an experimental basis before deciding whether to publish formal targets for the timing of our Reports on bills. Our ability to keep to the new timetable will depend on whether replies to letters to Ministers are received within the periods that we will request and on the allocation of resources. We nevertheless believe that it will be helpful to Members of both Houses to indicate in this Report the timetable which we will be seeking to meet during this experimental period from the beginning of next Session.

THE SCOPE OF SCRUTINY

25. We accept the proposal in Professor Klug's Option C that we should continue to scrutinise all Government bills, reporting on those which raise significant human rights issues. Option C also suggested applying such scrutiny to private bills "whenever feasible". The correspondence we have received this Session from the Lord Chairman of Committees in the House of Lords[13] stressed the importance to that House of the continuation of comprehensive scrutiny of the human rights implications of private bills. We consider it will be feasible for us to continue to scrutinise all private bills through the new sifting procedure.

26. We also agree with the proposal in Option C that we should no longer seek to scrutinise private Members' bills comprehensively. This Session we have not been able to consider any private Members' bills, and in our view any attempt to maintain the principle of comprehensive scrutiny of such bills would be an inefficient use of our resources. However, we reserve the option of scrutinising private Members' bills on an ad hoc basis, but normally only if they both raise issues of major human rights significance and appear likely to become law. As this judgment can often only be made some time after the introduction of each bill, it follows that any scrutiny of private Members' bills which we undertake in future will be done on an ad hoc basis and will not be done through the proposed sifting process. In deciding whether to scrutinise any private Member's bill we would of course take due account of any request for us to do so.

WHICH BILLS RAISE SUFFICIENTLY SIGNIFICANT ISSUES: THE THRESHOLD OF SIGNIFICANCE

27. The current approach which we adopt to determining the significance of human rights issues raised by a bill is to apply the following criteria:[14]

  • how important is the right affected?
  • how serious is the interference?
  • how strong is the justification for the interference?
  • how many people are likely to be affected by it?
  • how vulnerable are the affected people?

28. Such criteria may also be applied to missed opportunities to promote and protect human rights in the UK (see paragraphs 19 above and 29 below for further discussion of this). These criteria will remain central to any assessment of whether an issue raised by a bill is a significant human rights issue. To them we propose to add the criterion "the extent to which the State's most significant positive obligations are engaged".

29. In addition to these primary criteria of human rights significance, other considerations will be relevant to the assessment of significance to be applied at the sifting stage. These include the following:[15]

  • whether the issue is one on which the European Court of Human Rights or one of the higher courts in the UK has recently given a judgment
  • the broad political or public impact of the bill, including the extent to which it has attracted public and media attention (provided always that the bill engages human rights)
  • the extent to which reputable NGOs or other interested parties have made representations about the Bill
  • the particular interests or expertise of the members of the Committee and the degree to which the Committee can add value to the scrutiny which the bill might receive from other committees
  • the completeness of the Explanatory Notes or Human Rights Memoranda (if the Government agrees to provide these) accompanying the Bill (it is more likely to be necessary to ask questions of the Minister, e.g. about the justification for any interference with a right, if the Explanatory Notes or Human Rights Memoranda do not provide this information)
  • the extent to which the bill furthers the promotion or protection of human rights, or could have contained provision to that effect but does not
  • whether the issue is one on which the Committee has previously reported, particularly if there is a clear pattern of incompatibility, i.e. if reports from us and our predecessors have repeatedly raised the same incompatibility issues and the Government does not appear to have addressed them (we will seek in the first place to identify the most frequently raised incompatibilities or potential incompatibilities in bills since the Committee's inception).

THE SIFTING PROCESS

30. In devising our own sifting process we have taken into account the sifting mechanism employed by the European Union Committee of the House of Lords, which scrutinises EU legislation. One of that Committee's tasks is "to consider European Union documents". These documents are deposited in Parliament by the Government along with an Explanatory Memorandum, prepared by the relevant Department, which sets out the Government's view on a number of key areas, including the policy implications of the proposal. More than 1,000 such documents are deposited in Parliament each year.

31. The Lords EU Committee has delegated to its Chairman the task of conducting a sift of all the documents formally deposited for scrutiny. This sift is done on a weekly basis while the House is sitting and occasionally during recess periods. In practice what happens is that the Committee's Legal Adviser examines each document and its Explanatory Memorandum and decides whether it should be referred to one of the EU sub-committees or the select committee itself for examination or "cleared from scrutiny". The Legal Adviser consults fully with the Clerks of the Select Committee and all the sub-committees during the sifting process. Both the Select Committee Clerk and the Legal Adviser then meet with the Chair to advise him.

32. About two-thirds of all deposited documents are cleared from scrutiny at this initial sift stage. A Sub-Committee is not precluded from examining a document which has been cleared on the sift.

33. The EU Committee's view is that its sift process generally works well.[16] It describes the purpose of the sift as being to ensure that the time of members of the Sub-Committees is spent on those issues which merit their attention and to which they can add value.

34. We propose to introduce a similar sifting process for our own legislative scrutiny, by delegating to our Chairman the task of sifting bills for significance, in accordance with the criteria set out above. Under this procedure in practice the Legal Adviser would aim, on a weekly basis, to measure all new Government and private bills adequately and consistently against the agreed criteria of significance, and decide whether, in his view, the bill crosses the threshold of significance and should therefore be referred to the Committee for examination or cleared from scrutiny.

35. This initial sifting exercise will be a less intense scrutiny than the scrutiny given at a later stage to those bills which cross the threshold, or which has been applied hitherto to all bills. However, we consider it is vital that at least an adequate amount of consideration is given to each bill by our Legal Adviser, in order to minimise the risk of missing significant human rights issues. Therefore, during particularly busy periods, such as in the weeks following the Queen's Speech, it may not be possible for bills to be sifted in the week after they are published, and it may be necessary for some bills to be rolled over to the following week's sift, but the target should remain for all bills to be sifted as soon as possible after their publication, and if possible within a week.

36. After each sift, our Legal Adviser will produce a list of bills which in his view do not cross the threshold. He will also produce a preliminary analysis on each bill which in his view does cross the threshold advising the Committee which human rights issues arise and covering subsequent action which the Committee might take, such as questions which could be posed in a letter to the Minister.

37. After review of the outcome of the sift by the Chairman, the product of the sift will therefore be a list of bills which it is proposed should not be subject to further examination by the Committee ("cleared from scrutiny") and a preliminary analysis from the Legal Adviser in relation to any Bills which in his view raise significant human rights issues. The Chairman may decide to refer to the Committee any bill which the Legal Adviser has "cleared". If the Chairman disagrees with the Legal Adviser's view that any Bill crosses either threshold, the Legal Adviser's Preliminary Note will be referred to the Committee for it to decide.

38. On receipt of the product of the sift members of the Committee will be able to question why a particular bill has been cleared from scrutiny on the sift. The fact that a bill has been "cleared from scrutiny" also would not necessarily preclude its examination by the Committee at a later stage if it appeared in the course of its passage through Parliament that it did in fact raise significant human rights issues. The Committee will also be able to question whether an issue raised by a bill really is a significant human rights issue according to its agreed criteria.

39. Where we consider a bill crossed the significance threshold, we will consider alerting parliamentarians and civil society groups via our webpages to the issues which we consider to be significant in human rights terms and which we will therefore be scrutinising more closely.

40. The sifting process described above will not be confined to bills, and in the light of experience we will consider extending it to include other documents which we may wish to scrutinise, such as draft bills, White Papers, Green Papers, Action Plans, regulations, guidance, etc. which raise human rights issues, as part of our intention to expand our pre- and post-legislative scrutiny (see paragraphs 55 to 57 below).

41. For the sifting system to function best there will need to be some improvement in the quality of the treatment of the human rights implications of Explanatory Notes or a Human Rights Memorandum accompanying every Bill. The House of Lords EU Committee has stressed that "the provision of proper Explanatory Memoranda is absolutely essential to the effective functioning of the sift system".[17] The variable quality of Explanatory Notes accompanying Bills makes it difficult to predict in advance how long a thorough initial sift will take. We have asked the Government to consider ways of substantially improving the quality and consistency of the information which they provide to Parliament on the human rights implications of bills at the time of their introduction, and we re-emphasise here that we consider that such an improvement is essential if we are to conduct our work effectively in the remainder of this Parliament, both on legislative scrutiny and by extension on other work.

42. In addition, it is difficult to tell in advance how thoroughly it will be possible to scrutinise bills, on the initial sift, the week they are published. However, allowing time for preparation and circulation of the result of each sift, we would aim to consider the result of the sift as it applies to each bill within two weeks of the publication of that bill. In busy weeks some bills may be given less detailed attention on the initial sift (albeit still of an adequate standard to minimise the risk of missing significant human rights issues). In the light of experience it may be necessary to set a less ambitious timetable for the initial sift, and for us to accept that our eventual reports will therefore be later in the course of a bill's passage than the informal and provisional timetable we set out below (see paragraph 45).

POST-SIFT SCRUTINY

43. The process described above concerns only the initial sift of bills. We have also considered the subsequent procedure which we will follow in the case of those bills which the sift process identifies as crossing the threshold for examination and possible report to both Houses. Our objective at this stage is to report to Parliament as early as possible in a bill's passage through Parliament. The previous Committee sought to present its final views on a bill before it had reached the stage of second reading in the second House. We have carefully considered how to express our own target timetables for reporting in the context of the new sifting system, and we consider that when we finally decide upon them we should express them in terms of time elapsed since a bill's publication rather than in terms of a particular stage in a bill's passage. However, any targets adopted would obviously need to be operated sufficiently flexibly to enable faster moving bills to be prioritised, with the aim of reporting on every bill before it has left the first House.

44. In order to meet these targets, we would aim to give detailed consideration, on the basis of advice from our Legal Adviser, to those bills raising significant human rights issues as soon as possible after our consideration of the product of the sift. As part of this consideration we will decide whether or not we need to write to the Minister (or the promoters in the case of private bills) for further information to arrive at a final view on the bill, or whether we should arrange to take oral evidence instead.

45. Where we decide to write to the Minister (or promoters) in relation to a bill, the letter will be published on our webpages and will be self-explanatory of the concerns which we are raising, so making it less necessary to continue our present practice of publishing reports containing our "provisional views" on a bill. We will ask for responses within two weeks, following which we will seek to agree a Report relating to the bill. Provided responses are received within the requested deadline, on such a timetable, it should be possible for us to publish a full Report on a bill raising significant human rights issues while the bill is still in the first House, and sufficiently early to be of value to that House. Ideally, and subject to the allocation of resources, this would mean a timetable of reporting within approximately 8 to 10 weeks of a bill's publication. This is the informal and provisional timetable we will aim to meet from the beginning of next Session, in respect of those bills on which we do not take oral evidence. For bills which appear likely to be passed by the first House within this period we will aim to report before the bill has left that House. If we do not receive responses to letters within the deadlines we request then we may report to both Houses on the basis of the information we have available.

46. Where we do decide to take oral evidence in relation to a bill, for example because one or more of the significant human rights issues it raises require the determination of certain factual questions in order for us to be in a position to take a view on compatibility, we will aim to publish a Report within about three weeks of the date of taking the evidence.

47. We intend our eventual Reports on bills to be shorter and more focused than they have been in the past, less expository of the relevant law and more focused on the particular question or issue which the relevant law throws up, although we still consider it important for our Reports to explain the relevant law sufficiently to enable non-lawyers to understand our conclusions. In particular, we intend more regularly to reach a view on issues of proportionality which may arise as part of the consideration of the human rights compatibility of a bill's provisions. Our Reports will also focus on the most significant issues raised by the bill, rather than exhaustively on all the issues raised by a bill. We will give further consideration to Professor Klug's advice that we should more explicitly express our conclusions on compatibility questions in our own voice, rather than, as she puts it , "second-guessing" the view which courts might take in future cases.

48. We stress again that the timetables we have set out in the paragraphs above in terms of the time between publication of a bill and consideration of the product of the sift relating to that bill (2 weeks), and of publication of a Report on a bill crossing the sift threshold (8 to 10 weeks, or before the bill has left the first House if sooner), are informal and provisional and subject to the allocation of resources. We will revisit them after an experimental period and consider at that time whether to agree and publish formal targets.

49. A flowchart showing how the proposed new system would work in outline is attached to this Report as an Annex.

FREESTANDING REPORTS ON INDIVIDUAL BILLS

50. As part of Option C, Professor Klug suggested that we should try to ensure that each bill is reported in its own freestanding report wherever possible, to increase accessibility and comprehension for MPs and Peers. We are conscious that our use of scrutiny progress Reports, normally covering several bills, does not make it easy for Members of either House, or indeed outside organisations, to follow our work on the bills in which they are particularly interested, even though our webpages now contain links to Reports and ministerial correspondence organised by bill and each of our progress reports also contains a list of which Reports deal with each individual bill. Progress reports are an expedient we have adopted since there has been no other sensible way of dealing with the number of bills on which we have reported. They also entail substantially lower printing costs in comparison with a practice of reporting on individual bills. To some extent we consider that problems of the accessibility of our legislative scrutiny work may diminish under the new system we propose above, notably in the elimination of a two-stage process for reporting on certain bills, and a reduction in the number of bills reported on. Fewer, shorter reports and less frequent publication of provisional views will, however, reduce printing costs, although much will depend on the number of bills on which we report under the new system. We will institute the practice of using freestanding reports more frequently to report our substantive views on major Government bills, wherever feasible. We will evaluate the effectiveness and efficiency of so doing.

Other work

51. We do not envisage a strict compartmentalisation between our future legislative scrutiny work, as described above, and the other scrutiny, monitoring and inquiry work we intend to undertake. As Professor Klug has noted,[18] in our continuing inquiry this Session into counter-terrorism policy and human rights we have pioneered a new method of examining Government policy and legislation, placing our scrutiny of legislation, in this case the Terrorism Bill, within a wider policy context. In this way we have scrutinised in a pro-active way, seeking to propose human rights compatible ways forward for the Government in relation to the dilemmas it faces, while at the same time continuing to focus on the human rights implications of the legislation actually introduced by the Government. Also this Session our pre-legislative scrutiny of the Schools White Paper[19] fed into our legislative scrutiny of the Education and Inspections Bill when it was published, and similarly our pre-legislative scrutiny of the Respect Action Plan fed into our legislative scrutiny of the Police and Justice Bill.[20]

52. Moreover, the various types of inquiry we may undertake in the future are unlikely to fit neatly into any of the categories described in Option C. The inquiry we have recently announced into the treatment of asylum seekers, while in one sense a "thematic" inquiry, contains an important element of post-legislative scrutiny, revisiting legislative provisions affecting the treatment of asylum seekers on which we and our predecessor Committee expressed concern when the relevant bills were passing through Parliament.

53. Option C as put forward by Professor Klug does not include "thematic" inquiries, such as that which our predecessor Committee undertook into deaths in custody. Though there may be considerable overlap between inquiries into urgent and important issues of national concern and our thematic work as we have understood it up to now—deaths in custody clearly is such an issue—we consider that it is important that we retain the intention to undertake the close and detailed examination of major human rights related policy areas which has been the hallmark of our thematic work. We consider this matter further in relation to other types of inquiry in paragraphs 69 to 72 below.

54. Before briefly considering the various types of non-legislative scrutiny work contained in Option C, with our modifications, we emphasise that we will need to be rigorously selective in taking on such work. We will need to ensure that our inquiries are firmly grounded in human rights law, principles and policy, both in terms of fulfilling our own terms of reference and in order to ensure that we do not trespass unduly on the domain of other parliamentary committees, whether they be committees scrutinising draft bills or examining the expenditure, administration and policy of individual government Departments. In addition, we cannot undertake to provide anything like comprehensive monitoring of all human rights issues arising within Government, public authorities generally or wider society.

PRE-LEGISLATIVE SCRUTINY

55. By pre-legislative scrutiny we mean the examination of the human rights implications of Government policy before it is set out in the text of primary legislation, as well as examination of policy under development which may not need to be implemented by primary legislation. We see the purpose of such work as being to draw the attention of Parliament and the Government at an early stage to potential human rights pitfalls in relation to a proposed policy course. If our pre-legislative scrutiny work is successful we would expect to see a reduction in the number of human rights compatibility problems in any ensuing primary legislation. This would essentially cover Green Papers, White Papers and draft bills. On occasions it might even encompass announcements of intention by Government Ministers before publication of any document containing written proposals. As noted above, we do not plan to attempt comprehensive scrutiny of such policy and draft legislation: we will confine ourselves to those proposals which raise the most significant human rights issues, and it is probable that we will subject such pre-legislative material to the sifting process proposed for primary legislation.

56. If we achieve the main aim of our pre-legislative scrutiny work by reducing the number of compatibility problems in primary legislation, this would be an extremely valuable result, which is why we are keen to devote time and effort on this area. We will evaluate the impact of such work. We are conscious that draft bills are already subject to close and comprehensive scrutiny, normally by ad hoc Joint Committees or by existing parliamentary committees. In this context, we will give further consideration to whether our input into human rights scrutiny of draft legislation would best be achieved by conveying our views to the primary scrutiny committee or by scrutinising draft bills ourselves and publishing independent reports. One possibility is that we keep open the option of reporting selectively on the most significant human rights issues raised by draft bills.

POST-LEGISLATIVE SCRUTINY

57. We understand post-legislative scrutiny in the context of our work to be an attempt to assess whether the implementation of legislation has produced unwelcome human rights implications. These could take the form of legislation causing direct breaches of human rights, whether or not reflected in court judgments, including declarations of incompatibility. They could also take the form of legislation intended to promote or protect human rights not fully providing the intended benefits. In both cases our post-legislative scrutiny would take account of the views which we and our predecessor Committee had expressed at the time of scrutinising the legislation itself during its passage through Parliament, including in particular any warnings we had given about risks of incompatibility. In this respect we also draw attention to the fact that in numerous legislative scrutiny reports we have suspended judgment on compatibility issues because of the lack of detail in bills, only fleshed out later in delegated legislation, codes of practice or guidance. In future, as part of our legislative scrutiny, we will seek to draw attention to those particularly significant points arising from bills where we would intend, where possible, to return to consider their operation in practice as part of an expansion of our legislative scrutiny work. In carrying out this work, we will continue to co-operate informally with the Joint Committee on Statutory Instruments to ensure there is no duplication and to help provide a holistic service to Parliament. As with pre-legislative scrutiny work, it is probable that we would apply the sifting process in deciding what post-legislative scrutiny to undertake, except in cases where such post-legislative scrutiny forms an integral part of other wider inquiries. We recognize that there is potentially an enormous amount of post-legislative scrutiny work which we could in theory undertake, and will seek initially to approach the task cautiously and incrementally.

DECLARATIONS OF INCOMPATIBILITY, MONITORING OF STRASBOURG JUDGMENTS AND REMEDIAL ORDERS

58. Professor Klug considers that we should seek to undertake more work in relation to declarations of incompatibility issued by the domestic courts under s.4 HRA. We and our predecessors have generally considered this subject from the perspective of the possibility of a declaration of incompatibility resulting in a remedial order: we are required to report to both Houses on such orders. In fact there have only been three remedial orders since the HRA came into effect, two of them arising from adverse Strasbourg judgments and one from a declaration of incompatibility. In general the Government has preferred to remedy incompatibilities by means of primary legislation, and has a reasonably good record in doing so, though in some cases there have been relatively long delays. The position in relation to all declarations of incompatibility is set out in a table published on the website of the Department of Constitutional Affairs.[21]

59. Our predecessor Committee set out what it thought should be the factors taken into account by Ministers in deciding whether to make remedial orders and in choosing between the urgent and non-urgent remedial order procedure.[22] It also formulated a series of recommendations to Ministers about the steps they should take to inform the Committee about their intentions in response to declarations of incompatibility and adverse Strasbourg judgments, and in taking final decisions on the matters arising, with proposed timetables.[23]

60. In response the Government accepted the spirit of the Committee's recommendations, though it was unwilling to be held to the Committee's proposed deadlines.[24] In practice there has been considerable variability in the provision by the Government of the information requested. We append to this Report recent correspondence received in relation to declarations of incompatibility.[25]

61. We agree with the thrust of Professor Klug's argument that, given the central role of Parliament in deciding how to respond to declarations of incompatibility under the scheme of the Human Rights Act, we should be more proactive in relation to declarations of incompatibility, both in terms of pressing the Government to take action and, in appropriate cases, recommending what action should be taken.

62. We have already decided in this Parliament to produce more regular progress reports examining the implementation of Strasbourg judgments, and have published one such Report.[26] We consider that it makes sense to integrate our scrutiny and monitoring of adverse Strasbourg judgments, whether or not they may potentially give rise to remedial orders, with enhanced scrutiny of declarations of incompatibility. For those on the receiving end of a breach of human rights it is immaterial whether the judgment to that effect comes from a UK court or from Strasbourg.

63. This will result in a further development of our monitoring systems by means of progress reports drawing attention to unremedied declarations of incompatibility as well as unimplemented Strasbourg judgments and, where appropriate, recommending the general measures appropriate to prevent a repetition of the violation and commenting on the adequacy of the remedial avenues available for those concerned. These reports could also be used in appropriate cases for us to seek to promote the more active role for Parliament in relation to declarations of incompatibility advocated by Professor Klug in her report. For this system to function effectively we again draw the Government's attention to their undertakings to keep us fully informed about action taken, or proposed to be taken, in response to declarations of incompatibility and to Strasbourg judgments that rights have been violated, as set out in the letter of 8 July 2002 to the then Chair of the Committee from the then Human Rights Minister Yvette Cooper MP.[27]

SCRUTINY OF COMPLIANCE WITH UN HUMAN RIGHTS TREATIES

64. Under Option C Professor Klug describes our inquiry of this Session into UK compliance with the UN Convention against Torture (UNCAT) as a "scrutiny inquiry", of the sort which we should continue to carry out, yet one of the further proposals of Option C is that we should "continue to monitor treaty body reports …. if there is capacity to do so". We ourselves would place our inquiry into UNCAT firmly in the sequence of inquiries initiated by our predecessor Committee into the implementation in the UK of the provisions of individual UN human rights treaties. Like our predecessors we took as our starting point in this inquiry the Concluding Observations on the UK issued by the monitoring body following its examination of the UK's periodic report, and sought to obtain evidence on the range of administrative, legislative and policy areas where concern had been expressed.

65. The advantage of this methodology is that it provides a clear timetable for our treaty monitoring work, as well as a structured framework on which to pursue our inquiries in the form of the relevant UN Committee's Concluding Observations. It also serves a wider purpose of directing domestic parliamentary and public attention to the extent to which the Government's policy is in accordance with the provisions of those human rights treaties by which the Government is bound in international law, stimulating debate about the treaties themselves and the human rights principles which they embody. By focusing attention on the implications of each of these treaties in each reporting round we would also hope proactively to influence the Government in its policy stance as it prepares to submit its next periodic report to the monitoring body.

66. There is a case to be made that taking Concluding Observations as our starting point could potentially have a restrictive effect, confining our consideration to those points raised by the UN treaty body. In the case of our inquiry in the current Session into UNCAT we were not prevented from extending our terms of reference in order to encompass the issue of "extraordinary renditions", which arose after we had begun our inquiry. As Professor Klug has pointed out, however, the subject of extraordinary renditions has been cited as an issue of current public interest which we might have considered in its own right rather than through the lens of treaty scrutiny.[28]

67. We consider that continuation of a programme of scrutiny of the implementation of the provisions of international human rights treaties in the UK will remain an important part of our work. However we would not wish to commit ourselves to reporting on each set of Concluding Observations, or necessarily to tie ourselves to their coverage by inquiring specifically into them beyond live and relevant issues. Another option we might well prefer to adopt would be to inquire into the general policy area covered by a set of Observations, such as torture or children's rights. However, following our experience this Session in our inquiry into UNCAT, in cases where we were to base ourselves closely on a set of Concluding Observations, we would intend to revert to the practice of focusing closely on the Concluding Observations and taking a limited amount of oral evidence, from a Minister and possibly a small number of interested organisations. This would give us greater flexibility to respond to urgent human rights matters which arise outside the context of those Concluding Observations.

SCRUTINY OF HUMAN RIGHTS TREATIES PRE-RATIFICATION

68. Option C omits a category of scrutiny work which our predecessors undertook in relation to Protocol No. 14 of the ECHR, namely the examination of a human rights treaty after signature and laying before Parliament but before it has been ratified by the Government. We consider that such scrutiny is important in order to increase parliamentary understanding and involvement in the ratification process, thereby enhancing to some degree the democratic legitimacy and accountability of treaties entered into by the Government. We propose to adopt our predecessors' suggestion that we seek to report on all such treaties before they are ratified as part of our future working practices, if they raise any significant issues of which Parliament should be made aware.[29]

URGENT AND THEMATIC INQUIRIES

69. Option C recommends that we should factor into our working practices and programme the capacity to respond rapidly to major unexpected developments and should conduct inquiries into significant human rights issues of national concern. For the sake of brevity, we would classify these two types of inquiry, between which there is much overlap, as "urgent inquiries". Examples of major unexpected developments given by Professor Klug include claims that the Probation Service or Parole Board are becoming "distracted" by human rights concerns, or the operation of the Human Rights Act within public services more generally. Examples of significant human rights issues of national concern would be the subject of extraordinary renditions, or the implications of introducing the equivalent of "Megan's Law" into the UK.

70. The definitions put forward by Professor Klug also overlap with the concept of "thematic inquiries" and with the work undertaken by our predecessors into the implementation of the Human Rights Act. We fully accept that we should seek to be able, within our programme, to respond and inquire into the sorts of developments on which Professor Klug, and others cited in her report, consider that we could make an important and useful contribution to parliamentary and public debate.

71. Ultimately it matters little how exactly such inquiries are characterised or described. In each case the precise timing and speed of any action we take will depend both on the nature of a particular issue and on the other priorities which already form part of our forward work programme. In order to arrive at conclusions on the operation of the HRA in public authorities, for example, it would probably be necessary to take a substantial amount of evidence in an inquiry which could last some time. In other cases it should be possible for us to react more swiftly and report on discrete issues, provided again that, as far as possible, we had taken a proportionate amount of evidence on the subject in question and taken into account the views of all directly interested parties. Parliamentary committees do not in general have the luxury which some others possess of responding immediately to the latest headline or ministerial announcement, and it is important that, in declaring the intention to become more responsive to important human rights developments as they occur, we do not create false expectations that there will be an immediate and authoritative "JCHR view" on such developments. We think that in relation to this proposed strand of our work it will be particularly important that we are rigorous in asking ourselves whether by intervening in a particular debate we can genuinely add value by virtue of both our collective expertise in human rights and the nature of the investigation we can conduct as a Joint Select Committee.

72. We also note in the context of this general inquiry work that the Commission for Equality and Human Rights (CEHR), when it is established, will have the power to conduct inquiries. It remains to be seen how exactly it will exercise this power: Professor Klug suggests that the type of inquiries which the CEHR will conduct will be similar to the "thematic inquiries" undertaken by us.[30] We will clearly have to take into account the work of the CEHR in the future when determining the mix of our inquiry work, and may need to review our working methods again once the Commission is operating. One possible method of dovetailing our work with that of the CEHR would be for us to "pick up" some inquiry work undertaken by the Commission in order ourselves to highlight the most important human rights issues arising.

IMPLEMENTATION OF THE HUMAN RIGHTS ACT AND HUMAN RIGHTS INSTITUTIONS

73. Option C proposes that we hold regular sessions with the Human Rights Minister and officials on the implementation of the Human Rights Act and other related issues. This is something which our predecessor Committees sought to do and we ourselves took evidence from the then Human Rights Minister, Rt Hon Harriet Harman QC MP, on 16 January this year.[31] We agree that such sessions to explore Government thinking on human rights policy and the implementation of the Human Rights Act should be a regular feature of our work, and will seek to hold such sessions on a regular basis.

74. An important feature of our predecessors' work was its continuing interest in those institutions within the UK which have an important function in relation to the promotion and protection of human rights. Through its inquiries and recommendations that Committee was instrumental in the establishment of the Commission for Equality and Human Rights and the Children's Commissioner for England.[32] It also took a close interest in the work of the Northern Ireland Human Rights Commission.[33] Although in formal parliamentary terms these and other UK human rights institutions are accountable to the Commons departmental select committees which have oversight of their sponsoring Government Departments, we intend to continue this strand of work in the future. In the autumn, for example, we intend to hold a one-off evidence session with the UK's four Commissioners for Children and Young People to ask them their views on the most significant current human rights issues currently affecting children as well about the adequacy of their powers and resources for carrying out their functions.

75. As we have noted above, the forthcoming establishment of the CEHR may have important implications for the nature of our work in the future. To reflect the bringing together of responsibilities for human rights and equalities within one body, we have proposed that our own terms of reference be amended to include responsibility for considering "equalities" as well as human rights, to enable us unequivocally to consider all aspects of the CEHR's work. This proposal, which is not intended to dilute our focus on human rights, is currently under consideration, and will require approval by both Houses. Whether or not it comes into effect, we will take a close interest in the work of the CEHR. This is likely to involve, at the minimum, an annual session of oral evidence with the Chairman and/or the Chief Executive of the Commission.

COMMITTEE RESOURCES

76. Professor Klug advised us that the effectiveness and timeliness of both our current scrutiny work and that of the workload proposed in Option C (and, we judge, the variation of that workload set out in this report) are negatively affected by the constraint of staff time available for scrutiny work. This is reflected in the text of Option C of her report by references to "as appropriate" or "if there is capacity to do so". This constraint has in turn an impact on other work and leads to a situation where non-scrutiny work negatively affects the scrutiny work. The effectiveness and timeliness of the future work of the Committee is critically dependent on this issue being resolved.

Conclusions

77. We now summarise the essential points relating to each of the different elements we intend to include in our forward work programme for the remainder of this Parliament. The range of work which would be involved is ambitious, and we therefore conclude this Report with some reflections on the overall principles we will apply to the organisation of our work.

LEGISLATIVE SCRUTINY

PRE- AND POST-LEGISLATIVE SCRUTINY

DECLARATIONS OF INCOMPATIBILITY, MONITORING OF STRASBOURG JUDGMENTS AND REMEDIAL ORDERS

SCRUTINY OF COMPLIANCE WITH UN HUMAN RIGHTS TREATIES

SCRUTINY OF HUMAN RIGHTS TREATIES PRE-RATIFICATION

OTHER INQUIRIES

IMPLEMENTATION OF THE HUMAN RIGHTS ACT AND HUMAN RIGHTS INSTITUTIONS

Organisation of work

78. In this Report we have spelt out the types of work we will seek to include in our work programme during the future course of this Parliament. All our work is important and we have not sought to attribute degrees of importance to the different types of work undertaken. Nevertheless legislative scrutiny is a fundamentally important element of our remit and falls into a different category since it only has value in so far as it is achieved in good time to inform both Houses of Parliament during the passage of bills through Parliament. This must be taken into account, together with due consideration of the resources and time available, when establishing the priorities for our work programme. While our different types of work as described above may all serve rather different purposes, we see them all as contributing to our overall objective of enhancing consideration of human rights matters within Parliament and in wider political and public debate.

79. We have set out above (paragraph 76) the implications for staffing requirement that Professor Klug's report has signalled. It will not be possible for us to undertake as much work as we or others might wish under the various categories described in this Report. We recognise that we will have to make choices and prioritise in the course of our work.

80. We also stress that we do not consider it will be possible for us to be engaged in all our envisaged strands of work simultaneously. With the exception of our continuous legislative scrutiny work, the menu of work options which we have presented in this Report is not one which we can guarantee to cover even in the course of one parliamentary Session, but we fully intend to explore the full range of work involved over the course of the remainder of the Parliament as a whole.

Annex



12  
Appendix 1, Table 2 Back

13   See Appendix 2 Back

14   See Nineteenth Report of Session 2004-05, op. cit., para. 47 Back

15   Some of these factors draw on the account of the factors regarded as relevant by the Legal Adviser to the House of Lords EU Committee when conducting the initial sift for that Committee: C.S. Kerse, "Parliamentary Scrutiny in the United Kingdom Parliament and the Changing Role of National Parliaments in European Union Affairs." (Dublin, 2005).See also the list set out in Appendix 3 of the EU Committee's Annual Report 2003: 44th Report of Session 2002-03, HL 191 Back

16   House of Lords European Union Select Committee, First Report of Session 2002-03, Review of Scrutiny of European Legislation, HL Paper 15, para. 57 Back

17   House of Lords European Union Select Committee, First Report of Session 2002-03, op. cit., para. 58 Back

18   Appendix 1, paras. 6.10, 13.20 Back

19   Ninth Report of Session 2005-06, Schools White Paper, HL Paper 113, HC 887 Back

20   Twentieth Report of Session 2005-06, Legislative Scrutiny: Tenth Progress Report, HL Paper 186, HC 1138 Back

21   Appendix 3 Back

22   Seventh Report of Session 2001-02, Making of Remedial Orders, HL Paper 58, HC 473 Back

23   Ibid., Annex C Back

24   Nineteenth Report of Session 2004-05, op. cit., Appendix 2 Back

25   Appendix 4 Back

26   Thirteenth Report of Session 2004-05, Implementation of Strasbourg Judgments: First Progress Report, HL Paper 133, HC 954 Back

27   Nineteenth Report of Session 2004-05, op. cit., Appendix 2 Back

28   Appendix 1, para. 13.19 Back

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

30   Appendix 1, para. 13.21 Back

31   Minutes of Evidence, Monday 16 January 2006, HL Paper 143, HC 830-i of Session 2005-06 Back

32   Summarised in Nineteenth Report of Session 2004-05, op. cit. Back

33   Notably in its Fourteenth Report of Session 2002-03, Work of the Northern Ireland Human Rights Commission, HL Paper 132, HC 142 Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2006
Prepared 4 August 2006