Joint Committee On Human Rights

Joint Committee On Human Rights Sixteenth Report

4 DECLARATIONS OF INCOMPATIBILITY

109. The Ministry of Justice reports that between the Human Rights Act coming into force on 2 October 2000 and 23 May 2007 a total of 24 declarations of incompatibility have been made by domestic courts under the Human Rights Act. Of these, 6 were overturned on appeal; 1 remains subject to appeal;[120] 10 have been addressed by new primary legislation; 1 is being addressed by a Bill currently before Parliament; 1 was addressed by remedial order; leaving a total of 5 in which the Government is considering how to remedy the incompatibility.[121]

Is a declaration of incompatibility an effective remedy?

110. The importance of swift and comprehensive Government responses to declarations of incompatibility under the Human Rights Act was recently highlighted by the European Court of Human Rights in its judgment in the case of Burden v UK.[122] It is a requirement of the ECHR that an applicant to the Court in Strasbourg must first exhaust all their domestic remedies.[123] Unless a domestic remedy is considered "effective", however, it need not be exhausted before pursuing an application to Strasbourg.

111. In Burden, the ECtHR confirmed that applicants may not be required to pursue their claim in the domestic courts if the only possible remedy is a declaration of incompatibility under the Human Rights Act. As it is for the Government to decide whether or not to amend the legislation which has been declared to be incompatible, and whether to change the law in a way which provides an adequate remedy for the individual applicant, the ECtHR concluded that the declaration of incompatibility cannot be considered an effective remedy for the purposes of the requirement that domestic remedies be exhausted.[124] The ECtHR accepted that should evidence emerge at a "future date" of a "long-standing and established practice" of Ministers giving effect to courts' declarations of incompatibility, this might support a different conclusion.[125] In our view this decision makes even more important Parliament's role in scrutinising the promptness and adequacy of the Government's response to declarations of incompatibility. If the Government can demonstrate to Parliament's satisfaction that it consistently responds promptly and adequately to such declarations, the ECtHR may in time come to regard a declaration of incompatibility as an effective remedy which must first be exhausted before an individual can apply to Strasbourg.

112. Our predecessor Committee, in their report on the Making of Remedial Orders,[126] set out a recommended timetable for Government action in respect of declarations of incompatibility and adverse judgments of the ECtHR. In the case of Strasbourg judgments, our predecessors recommended that the Government provide us with a copy of the judgment within a month, and within three months of a final judgment should inform us of the steps which it had taken or intended to take to ensure that similar violations did not occur in future. For declarations of incompatibility, they recommended that Ministers inform us of the Court's decision within 14 days, providing full text of the declaration and the court's judgment. A declaration of incompatibility becomes final only when the relevant avenues of appeal have been exhausted or time to appeal has expired with no appeal having been lodged. Our predecessors asked that Ministers, within a month of the decision, should inform us of the result of any appeal, together with the Government's preliminary view on the most appropriate way to proceed in remedying the incompatibility.[127] Our predecessors recommended that final decisions about how to remedy incompatibilities should be made by the Government no later than 6 months after the relevant legal proceedings.

113. The Government accepted these recommendations in principle,[128] but argued that in some cases, sticking to a rigid timetable might be a "little ambitious". The Minister explained that a Department may need to consult widely before it can take a view on how they intend to respond to a declaration of incompatibility. The Minister hoped that the Committee would accept that, in some cases, "research and consultation may mean a longer timescale".

114. We accept that there may be cases where research and consultation may mean a longer timescale. However, we are concerned that in the small number of cases outstanding, which we consider below, that the time taken to consider a response to the relevant declaration of incompatibility has been significantly longer than six months. We consider that the timetable set by our predecessors, and accepted in principle by the Government, is not unrealistic. Given the Government's acceptance in principle of our predecessor's recommendations, subject to the qualification noted above, we consider that the Government should be able to provide us with a reasonable justification for any delay, for example by explaining in detail why remedying a particular incompatibility requires a longer than usual period of research or consultation.

115. The Government also indicated in response to our predecessor's report on the making of remedial orders that it intended to include the Committee's recommendations in a revised version of the Guide for Whitehall Departments on the Human Rights Act.[129] Although this commitment was given in July 2002, to date no new guidance has been issued.

116. Against this background we wrote to the Lord Chancellor on 23 January 2007 to ask whether there had been any change in the Government's general policy towards declarations of incompatibility since 2002 and whether there was any intention in Government to change that policy in light of the judgment in Burden v UK. We also asked the Lord Chancellor to explain the reasons for the delay in publishing the updated Guidance for Whitehall Departments, promised in 2002.[130]

117. In a letter dated 17 May 2007, the Lord Chancellor told us that the Government saw no reason to change its policy on declarations of incompatibility as a result of the decision in Burden. He explained that it was the Government's view that this decision was greatly encouraging.[131]

118. In our view the Government may be placing a rather positive gloss on the judgment in this case. It confirms that at present the ECtHR does not consider a declaration of incompatibility for the purposes of the HRA to be an effective remedy for a breach of Convention rights. The Government refers to the admissibility decision in Hobbs and to other subsequent cases. However, the ECtHR has now given a strong indication of the action that the Government needs to take to ensure that declarations of incompatibility are considered an effective remedy. We consider that, in light of the judgment in Burden v UK, the Government should now adopt a much clearer policy on systematically responding to declarations of incompatibility, capable of providing evidence of "a long-standing an established practice of Ministers giving effect to the courts' declarations of incompatibility".

119. We recommend that the Government take a number of steps with a view to persuading the ECtHR - and aggrieved parties who might otherwise spend significant resources on an application to Strasbourg - that a declaration of incompatibility might provide an effective remedy. These include:

— Implementing the original recommendations of our predecessor Committee (to which we return below);

— Clearly stating that it is the Government's policy to take steps to remedy any incompatibility as soon as possible after a declaration has become final;

— Consistently following the clear and transparent timetable set by our predecessor Committee;

— Making greater use of Remedial Orders and, where appropriate, urgent remedial orders, to implement declarations of incompatibility rapidly; and

— Ensuring that any legislative solution makes the necessary provision to afford a remedy to those applicants affected by the identified incompatibility.

120. We also asked the Lord Chancellor about the Guidance offered to Departments who are tasked with formulating a response to any declaration of incompatibility. We note that the Lord Chancellor considers that the recent handbook for public authorities, Human Rights: Human Lives supersedes the earlier DCA Guide to Whitehall Departments on the Human Rights Act. However, the Lord Chancellor has also told us that this document is principally aimed at public authorities dealing with the public on a daily basis and helping them to take decisions in a Convention compatible way.

121. We have already expressed our enthusiasm for the publication of the new Handbook.[132] However, we do not consider that the guidance in Human Rights: Human Lives provides enough detailed guidance on the application of the HRA and the Convention in order to allow departmental officials to respond effectively to declarations of incompatibility. In our view much more specific guidance is required to guide departments in responding promptly and adequately to declarations of incompatibility. We welcome the Lord Chancellor's decision to reconsider whether further guidance is necessary and urge the Ministry of Justice to produce clear guidance for departments on declarations of incompatibility and remedial orders. We look forward to being consulted on a draft of this guidance.

Issues monitored by the Committee

(1) APPOINTMENT AND REMOVAL OF NEAREST RELATIVE

122. On 16 April 2003, provisions in the Mental Health Act 1983 governing the appointment and removal of a nearest relative[133] were declared incompatible with the right to respect for private life in Article 8 ECHR, because the patient concerned had no choice over the appointment or legal means of challenging the appointment of her nearest relative.[134] The operation of the statutory provisions in question meant her adoptive father was designated as her nearest relative even though he had abused her as a child, and she had no means of removing him. This case dealt with the same issue raised in the judgment of the ECtHR in JT v UK (considered above).

123. In April 2005, our predecessor Committee described the delay in this case, then expected to take over two years to remedy the incompatibility, as "highly regrettable".[135] We note that in October 2004 the Government agreed to remedy the incompatibility by way of a remedial order using the urgent procedure,[136] but then failed either to keep the Committee closely informed of its intentions or to explain satisfactorily its reasons for changing its mind and deciding instead to remedy the incompatibility by way of a provision in the Mental Health Bill.

124. We consider that it is highly regrettable that an urgent Remedial Order was not used to remedy this incompatibility long before the introduction of the wider Mental Health Bill. Having now seen the precise way in which that Bill proposes to remedy the incompatibility, we are confirmed in our view that this incompatibility could have been remedied much more swiftly by an urgent remedial order. We consider that the delay in this case was not justified by the complexity of the issues involved and resort to the remedial order procedure was more than merited by the seriousness of the human rights concerns involved in these cases. We recommend that in future the Government keep us much more closely informed of its proposed timetable for remedying an incompatibility and of its precise reasons for not proceeding by way of a remedial order.

(2) DISCRIMINATION IN ACCESS TO SOCIAL HOUSING

125. In two cases the courts have found a provision of the Housing Act 1996 to be in breach of the Human Rights Act because it discriminates against a person in their access to social housing on the basis of the nationality of a member of their household. Morris concerned an application for housing assistance by a single mother, who was a British citizen, but whose child was subject to immigration control.[137] The Court of Appeal held that the relevant provision of the Housing Act 1996[138] was incompatible with the right not to be discriminated against in the enjoyment of the right to respect for family life and home (Article 14 taken together with Article 8 ECHR) to the extent that it requires a dependent child who is subject to immigration control to be disregarded when determining whether its family has priority need for housing. In Gabaj the Administrative Court, in a logical extension of the reasoning in Morris, held that the same statutory provision was similarly incompatible to the extent that it requires a pregnant member of a household to be disregarded where that person is a person from abroad and ineligible for housing assistance.[139]

126. The Minister wrote to us on 20 April 2006, shortly after the decision in Gabaj. She told us that "the Secretary of State has not yet come to a decision whether to repeal or amend section 185(4). This matter raises some important policy issues and consequently further consideration and consultation with other Government departments will be necessary before a final decision can be made."[140] The Law Society and the Housing Law Practitioners Association ("the HLPA") wrote to us in 2006, stressing the need for the Government to take urgent action to address these declarations of incompatibility. HLPA has conducted a survey amongst its members, which shows that the factual situation that led to these declarations regularly continues to occur.[141]

127. We wrote to the Minister on 23 January 2007 to ask for further information on how the Government intended to remedy the incompatibility identified in these cases, statistics on the application of s.185(4) Housing Act 1996 since the decision in Morris and the reasons for the continued delay in proposing a remedy. We also asked whether the Government would consider using a Remedial Order in this case. [142]

128. The Minister replied on 27 February 2007 explaining that the Government had found it "very difficult to identify a compatible solution that will continue to deliver the Government's policy on access to social housing."[143] By this time, the Government had identified an "appropriate solution" and was considering whether to take forward that solution by primary legislation or remedial order (we consider this solution, below). The Minister told us that the Government was not aware of any new cases raising similar issues, but did not collect statistics on the continued application of s185(4).

129. We are concerned that the Government does not collect statistics on the application of the incompatible provisions of the Housing Act 1996.[144] We recommend that where a legislative provision has been declared incompatible with the Convention, the Government should closely monitor the application of that provision and its potential impact on individuals affected by its continuation in force. We consider that it is unacceptable that measures which have been judicially declared to be incompatible with Convention rights should continue to be applied on a day to day basis by public authorities without any analysis of the continued impact of these provisions on individual rights. In order to improve transparency and to allow effective public and parliamentary scrutiny of the urgency of the need for a remedy, we recommend that part of these monitoring arrangements should include the collection of relevant statistics on the impact of maintaining the incompatible law in force.

The HLPA told us that:

They told us that the only acceptable way to remedy the incompatibility identified by the Court of Appeal was to repeal the relevant provisions of the Housing Act 1996.[145]

130. We wrote to the Minister again on 22 March 2007 to ask for further information on the solution proposed by the Government.[146] On 13 April 2007, the Minister explained that the Government intended to meet the incompatibility of the provision in the Housing Act 1996 with Article 8 ECHR by amending Part 7 of the Act to place housing authorities under:

After the "immigration status was regularised, further consideration of the housing application would proceed and the interim duty to secure accommodation would end". The Minister explained that in any case where it was compatible for leave to remain to be refused, the Government considered it would also be compatible for a housing authority to decide that there was no substantive duty to secure accommodation.[147]

131. In Morris, the justification offered by the Government was based largely on the need to meet the immigration policy needs identified (i.e. preventing benefits tourism). The Court of Appeal considered that:

[J]ustification has to start…not from Art 14 but from Art 8….[T]he question is whether it is justifiable to make a measure designed to accord respect to family life dependent not on the nationality of the claimant but on the immigration status of her dependent child (para 47).

The Court focused on the implications for the principal applicant for accommodation assistance:

Except for those (not likely to be many) who have simply neglected to take the necessary steps, the effect is not an encouragement to regularise…but a penalty…for being unable to do so (para 45).

The Court concluded that any provision having this effect would need "solid" justification. The Court considered the assumptions underlying s185(4) Housing Act:

132. In light of the Court's focus on the rights of the principal applicant for housing assistance, who will usually be a parent, or a person providing support for the dependant non-national, we do not share the Government's confidence that the proposal identified by the Minister will remedy the incompatibility identified by the Court of Appeal in Morris.

133. No draft legislative proposals have been produced and no decision has yet been taken on how to implement the Government's proposed remedy. We have had no explanation of how long the interim duty on local authorities is expected to last and whether or not the interim duty proposed will last throughout the time taken by the Home Office to consider the immigration status of the relevant person in the applicant's household.

134. We are concerned about the significant delay in taking a decision on how to remedy the Convention incompatibility identified in these cases. We recommend that the Government now provide us with a detailed draft of their proposed remedy, together with the detailed reasons for their view that treating the immigration status of dependent children or other dependents as relevant to the priority status of an applicant for housing assistance is compatible with Articles 8 and 14 ECHR. Although we have been unable to assess the detail of the proposals concerned, we consider that the already substantial delay in this case, and the vulnerability of the persons affected by the incompatibility, are significant factors which the Government should take into account in deciding whether to use a Remedial Order to remedy the incompatibility in this case.

(3) NATIONALITY AND RELIGIOUS DISCRIMINATION IN SHAM MARRIAGES REGIME

135. A provision of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 requires a person subject to immigration control to obtain a certificate of approval from the Secretary of State before entering into a civil marriage.[148] The scheme effectively excludes marriages which take place within the Church of England, but includes any marriage entered into subject to any other religious rites. The High Court concluded that the legislative scheme was incompatible with both the right to marry in Article 12 ECHR, in that it was disproportionate, and with the right not to be discriminated against on grounds of nationality and religion in the enjoyment of the right to marry (Article 14 ECHR in conjunction with Article 13).[149] The distinction between those who wished to marry in the Church of England and those who wished to marry in other religious ceremonies was not justifiable as there was no evidence that those who married outside the Church of England were any more likely to engage in sham marriages than those who married in Church of England ceremonies. The new regime constituted unfair and unjustifiable discrimination based on the personal characteristics of religion and nationality.

136. The Home Office wrote to us on 19 September 2006 indicating that while they intended to appeal the decision on Article 12 ECHR and other issues, that they intend to extend the scheme to marriages within the Church of England, in order to remove the incompatibility with Article 14 ECHR. We wrote to the Minister on 23 January 2006 to ask for further information.[150] At the time of drafting we have received no response. On 23 May 2007 the Court of Appeal upheld the decision of Silber J that the scheme to deal with sham marriages was in breach of the right to marry in Article 12.[151] The Home Office is considering whether to appeal. The finding that the provision in question was unjustifiably discriminatory on grounds of nationality and religion, however, was not appealed to the Court of Appeal. We expect to receive the response of the Home Secretary shortly.

(4) NATIONALITY DISCRIMINATION IN EARLY RELEASE OF PRISONERS

137. In December 2006, the House of Lords declared certain statutory provisions governing the early release of prisoners[152] to be incompatible with the right not to be discriminated against in the enjoyment of personal liberty (Article 14 ECHR taken together with Article 5 ECHR) because they discriminated against foreign prisoners on the grounds of national origin. As a result of these provisions, certain foreign prisoners who are liable for deportation are treated differently from other prisoners for the purposes of early release. The Parole Board has no power to recommend the early release of these prisoners and this decision remains entirely with the Secretary of State.[153]

138. These provisions have already been repealed and replaced by provisions of the Criminal Justice Act 2003, but they continue to apply to offences committed before 4 April 2005. The Home Office were initially responsible for considering how to remedy the incompatibility in relation to offences falling within this transitional category. In light of recent Departmental changes, we have recently written to the Lord Chancellor to ask what steps the Government considers necessary to ensure that the relevant transitional measures do not discriminate on the basis of nationality.[154] We look forward to receiving the Minister's response, in due course.

(5) PRISONER VOTING

139. In March 2007, the Court of Session in Scotland sitting as the Registration Appeal Court declared s3 Representation of the People Act 1983 incompatible with the Convention. This declaration of incompatibility is considered in the context of the Hirst decision above.

120 Wright and Others v Secretary of State for Health [2006] EWHC 2886 (Admin), in which the "preliminary" inclusion of health workers on a list of individuals unsuitable for work with vulnerable adults was held to be procedurally unfair and incompatible with Article 6(1) ECHR. The Department of Health has recently written to the Committee to confirm the Department's intention to appeal: Appendix 33. Back

121 http://www.dca.gov.uk/peoples-rights/human-rights/pdf/decl-incompat-tabl.pdf. Back

122 Application No 13378/05, Judgment, 12 December 2006. Back

123 ECHR Article 35(1). Back

124 Op. cit at paras 39-40. Back

125 ibid. Back

126 Seventh Report of Session 2001-02; Making of Remedial Orders, HL Paper 58/HC 473. Back

127 ibid. Part 2, Annex C. Back

128 Nineteenth Report of Session 2004-05, The Work of the Committee in the 2001-2005 Parliament, HL Paper 112/HC 552, Appendix 2, paras 5 - 8. Back

129 ibid. Back