Joint Committee on Human Rights - Thirty-First Report

Joint Committee on Human Rights Thirty-First Report

5 Declarations of Incompatibility

81. No new final declarations of incompatibility have been made during the past year. There have been a number of new declarations, however, which have been overturned on appeal or which are currently subject to appeal.[103]

82. In our previous reports, we praised the Ministry of Justice database on declarations of incompatibility.[104] This database records every declaration of incompatibility made; whether an appeal is pending; whether a declaration has been overturned on appeal and, if the Government proposes to take steps to meet an incompatibility, what progress has been made. This database, if regularly updated, can significantly increase the transparency of the Government's response to these important judgments. It is disappointing that this database does not appear to have been updated for a significant period of time: nor is it easily accessible on the new, redesigned, Ministry of Justice website. We recommend that the Ministry of Justice take steps to make it easier to find the database on their website, and that the database should be reviewed and updated on at least a quarterly basis.

Is a declaration of incompatibility an effective remedy?

83. In our last report, we commented on the ECtHR's conclusion that, at present, a declaration of incompatibility cannot be considered an effective remedy for the purposes of the Convention.[105] This means that, if the only possibility for a domestic remedy is a declaration of incompatibility, an applicant may apply directly to the ECtHR for a decision rather than waiting for a decision of the domestic courts on an issue. We noted that the ECtHR had suggested that a consistent response by Government to declarations of incompatibility could change the Court's view of their effectiveness. We called on the Government to adopt our recommendations on a clear and public strategy on declarations of incompatibility, including providing guidance to Departments to ensure consistency in all cases. [106]

84. In April 2008, the Grand Chamber confirmed that declarations of incompatibility cannot yet be considered an effective remedy. It also indicated that, in time, through ensuring consistent, speedy, legislative responses to declarations, the UK could persuade the Court that a declaration of incompatibility is an effective remedy for the purposes of the ECHR.[107] These findings should encourage the Government to adopt a consistent approach to declarations of incompatibility. We again recommend that the Government take steps to adopt an open, transparent policy. It should make clear that it aims to respond to all declarations within a set timetable and should provide clear guidance to individual Departments on the need for a prompt and effective response to every declaration of incompatibility.

Issues previously monitored by the Committee

85. In this section we consider declarations of incompatibility previously subject to scrutiny. We do not propose to set out the facts in each of these cases and this section should be read together with our previous reports.

DISCRIMINATION IN ACCESS TO SOCIAL HOUSING (MORRIS V WESTMINSTER CITY COUNCIL)

86. In our last Report, we considered two declarations of incompatibility in respect of Section 185(4) of the Housing Act 1996.[108] This provided that in any application for homelessness assistance, any dependants who were subject to immigration control should be disregarded when considering whether an applicant should be considered homeless or in priority need. Our domestic courts have twice declared that this provision was in breach of the applicants' right to respect for their private and family life without unjustified discrimination. Despite the Government's policy objectives - which were to encourage unlawful migrants to leave the country and to discourage 'benefits tourism' - the exclusions in Section 185(4) were not justifiable.[109]

87. Since the publication of our last Report, the Government has introduced amendments to the Housing Act (and to equivalent provisions in Scotland and Northern Ireland) during the passage of the Housing and Regeneration Act 2008.[110] After the publication of the Housing and Regeneration Bill, we wrote to the Minister to raise a number of questions, including why the Bill did not propose to remedy the incompatibility identified in these declarations. In our Report on the Bill, we criticised the Government's continued delay in reaching a decision on how to respond. We proposed an amendment to the Bill to repeal the incompatible provision to ensure that these issues were debated during the Bill's passage.[111]

88. The Government introduced their own amendments to deal with this issue during the Bill's Committee Stage in the House of Lords. The Minister wrote to us on the day that these amendments were tabled to explain their intended effect (three working days before they were due to be debated).[112] A local authority will no longer be under a duty to disregard certain family members when assessing whether an applicant is homeless or in priority need. To this extent, the Government's amendments remove the incompatibility with the Convention identified by the Court of Appeal. However, the amended Bill provides that where an applicant is assessed as being homeless or in priority need as a result of his or her relationship with a person whose immigration status is unsettled or who only has leave to remain in the UK in so far as they are not reliant on public funds, then the duty to provide accommodation, advice and assistance may be discharged by securing an offer of at least 12 months tenancy with a private landlord on a short-hold assured basis. This is in contrast to the general duty, where an offer of similar accommodation will not discharge the duty owed to the applicant by the local authority unless the applicant agrees.[113]

89. Introducing the amendments, the Minister explained the Government's view that these proposals "remedy the current incompatibility and set a fair balance between the interests of UK taxpayers and the rights of migrants who come to the country with no claim on public funds".[114] She explained:

Given how entitlement to homelessness assistance works, the issue at stake is: what should happen if the applicant is eligible for assistance but the dependent child or pregnant partner is not, even if under other circumstances, the dependent child would confer entitlement to assistance. The present law states that under Section 185(4) of the 1996 Act… the whole family is currently denied housing assistance because household members who are not eligible cannot be taken into account when deciding if the applicant is homeless or in priority need….[T]he court ruled that the application of that section to British citizenship applicants is incompatible with human rights legislation because it discriminates against the British citizens who are affected - that is to say, it denies them the help that other British citizens who are not affected will get - and the discrimination is not justified.

[…]

The effect of these amendments is that Sections 185(4)…will no longer apply to applicants who are British citizens. Nor will they apply to applicants with specific rights to live in the UK - for example, Commonwealth citizens with a right to abode or with an EU treaty right to reside. […]

However, while the Government recognize that applicants with specific rights to live in the UK must not be denied homelessness assistance, we remain concerned that dependants and other household members who are ineligible because they are here illegally or on conditions that they will have no recourse to public funds should not be able to confer priority or entitlement to long-term social housing. The amendments refer to these dependants and household members as "restricted persons" […][115]

90. We wrote to the Minister shortly after this debate, expressing our concern at the short notice that the Committee was given before the introduction of the amendments and their debate on the floor of the House. We expressed our concern that these provisions would continue to distinguish between applicants with priority need, offering less protection for those families who were in priority need as a result of their relationship with a family member who was a "restricted person". We asked the Minister to provide us with an explanation of the Government's view that this distinction was justified and would not lead to a further violation of the Convention.[116]

91. The Minister, Baroness Andrews, responded to our request during Report Stage in the House of Lords. She explained that it was the Government's view that these provisions were compatible with the Convention:

The Government acknowledge that Schedule 15 will result in a difference of treatment between eligible applicants depending on their particular household circumstances. We have given this very careful consideration and are satisfied that those differences of treatment are justifiable because of the policy considerations. The Court of Appeal questioned the policy considerations underlying Section 185(4). In the court's view, denying a person from abroad the right to be secured by a local authority would put pressure on that person to leave the country and where that person was a British citizen with a right of abode that was unjustifiable.

First, we acknowledge that British citizens who are habitually resident here and who become unintentionally homeless should be entitled to be provided with accommodation to relieve their homelessness, even where their priority need or homelessness derives from ineligible dependents or other ineligible household members. For all the reasons that I have explained, the provision of long-term social housing - it is a scarce resource which brings valuable benefits with it, including the right to buy - is another matter. We strongly believe it is justifiable policy that, as far as possible, restricted persons should not be able to convey entitlement or priority for long term social housing on another person through the operation of the homelessness legislation.[117]

92. When the Bill returned to the House of Commons, the Government was again challenged to explain why this distinction was justifiable and not likely to lead to a further breach of the Convention. The Minister promised to reflect on the point that "by trying to resolve the incompatibility on one issue, we could be creating something else".[118]

93. In so far as these new provisions remove the exclusion in Section 185(4) of the Housing Act 1996, they remedy the clear incompatibility with the Convention identified by our domestic courts in the cases of Morris and Gabaj. However, in view of the breadth of the reasoning of the courts in those cases, we remain concerned that in so far as these provisions maintain a distinction between protection offered to those in priority need as a result of their relationship with a restricted person and others, there remains a risk that our domestic courts will also declare these provisions incompatible with Article 14, taken together with Article 8 of the Convention. As the Court of Appeal explained, justification is necessary for any such distinction. The Government must show that this distinction has a legitimate aim and that the provisions are necessary and proportionate to that aim. The Government has proposed a new policy objective for these proposals: the protection of the resources available for long term social housing. It considers that this objective provides clear justification for maintaining their proposed distinction, but provides no explanation for why it is the Government's view that the steps taken are proportionate for the purposes of compliance with the Convention. The Explanatory Notes which accompanied the Bill when it received Royal Assent provide no further guidance.

94. The guidance from the Court of Appeal on this issue was strongly worded and worth repeating:

Section 185 carries no self-evident justification capable of making subsection (4) a proportionate or even logical, response to the problems of benefits tourism and unlawful migration. There is certainly the beginning of an explanation in the undesirability of British nationals exercising their right of abode here for the purpose of securing accommodation for themselves together with children of theirs who are subject to immigration control. […] The assumptions on which Section 185(4) are built are different: they are that the parent is both lawfully here and habitually resident here, and that the child, albeit subject to immigration control, is also here and dependent on the parent. To exclude such a family does not correspond with even the limited policy objective I have described.[119]

95. This suggests that the Court considers strong justification, supported by evidence, will be necessary to justify any distinction. The new provisions may have a less detrimental effect on families in these circumstances than the earlier exclusion. This may persuade the Court to give greater weight to the Government's policy concerns when considering whether the distinction is necessary and proportionate. However, these provisions still offer a less favourable degree of protection, which must be justified. We are not persuaded that the provisions in the Housing and Regeneration Act 2008 intended to respond to the declarations of incompatibility in the cases Morris and Gabaj entirely remove the risk that our domestic courts, or the ECtHR, will find a further violation of the right to enjoy respect for private and family life without unjustified discrimination. We recommend that the Government provide a fuller explanation of its view that these provisions are necessary and proportionate and therefore, compatible with the Convention.

RELIGIOUS DISCRIMINATION IN SHAM MARRIAGES REGIME (BAIAI V SECRETARY OF STATE FOR THE HOME DEPARTMENT)

96. In our last report, we considered the declarations of incompatibility made in respect of the Government's Certificate of Approval Scheme for marriages involving a person subject to immigration. The provisions are incompatible with the right to marry without discrimination, in so far as they provide an exemption for marriages that take place within the Church of England.[120] A second declaration of incompatibility based on nationality discrimination and the right to marry, as guaranteed by Article 12 ECHR was recently overturned after an appeal to the House of Lords.[121]

97. The Government has accepted that the discriminatory exemption for Church of England marriages must be removed. We wrote to the Minister during the last session to ask how the Government intended to proceed.[122] The Minister confirmed on 8 August 2007 that it was the Government's intention to remedy the incompatibility with Article 14 ECHR "as soon as practicable" by extending the scheme to Church of England marriages.[123] The Minister did not consider that it was appropriate to alter the existing statutory scheme while the wider appeal to the House of Lords was ongoing. The Minister explained:

The Registrar Service and the Church of England are reluctant to introduce any new arrangements until they know the outcome of the Government's appeal. In particular they do not want to introduce additional work and administrative costs in support of a scheme which is then declared unlawful by the House of Lords.

98. The Minister also indicated that the Government was discussing a revised scheme which would also apply to the Church of England, where the certificate of approval would be obtained from the Secretary of State but approved by the registrar before the banns are read.

99. Earlier this year, we wrote again to the Minister to ask why the Government thought that administrative convenience and public cost was an appropriate justification to delay the removal of the discriminatory elements of the scheme. We also asked whether the Government considered that a separate scheme for Church of England marriages could be justified in light of the earlier declaration of incompatibility.[124]

100. In his reply, the Minister argued that the declaration of incompatibility did not affect the continuing validity of the law and that, under the settlement envisaged by the HRA, there is "no obligation on the UK Border Agency to amend the COA scheme at this time."[125]

101. We accept the Government analysis that the UK Border and Immigration Agency is not required to change the law in response to the declaration of incompatibility made in this case. There is no domestic legal obligation on the Government to take action. However, we are disappointed by the Government's short-sighted approach. Although in keeping with the careful constitutional settlement in the HRA 1998, failure to provide a remedy may engage the United Kingdom's international obligations. The UK has primary responsibility under the ECHR to give effect to Convention rights.[126] The continued application of a provision of domestic legislation that the UK courts have decided is incompatible with the Convention is inconsistent with our commitments to give full effect to the protection of the Convention to all people in the UK. It leads not only to the continued likelihood that people in the UK may be treated in a way which breaches their fundamental rights but also that they will only be able to secure a remedy in Strasbourg. We repeat our previous calls to Government to provide coherent guidance to Government Departments on responding to declarations of incompatibility. This guidance should cover not only the obligations of the HRA 1998 but also the responsibilities of the UK under its international obligations.

102. The Government considered that waiting for the outcome of the House of Lords hearing was the most efficient use of public resources in this case. The Minister explained that preparatory work had been undertaken and proposals to rectify the incompatibility with Article 14 ECHR were being developed while the decision of the House of Lords was pending. Officials from the Border and Immigration Agency and the Church of England intended to work together to ensure the Convention compatibility of the new proposals, if needed. The Government has also noted that interim guidance is in place that, in the Government's view, should reduce the impact of these provisions. The Minister explained:

Following the Court of Appeal's judgment in Baiai, the Government has been operating an interim guidance scheme, under which there is no longer a blanket policy of refusing Certificates of Approval to any claimant. In this way, every applicant to whom the scheme applies, regardless of their immigration status, will have their individual circumstances closely scrutinized, and a certificate will only be refused if there are grounds for concluding that the proposed marriage is not genuine.[127]

103. We note the Government's reference to its interim guidance on Certificates of Approval, which was designed to reduce the impact of the Certificate of Approval scheme, pending the decision of the House of Lords. However, we consider that it has no real implications for the ongoing discrimination identified by the Court of Appeal, which continues to mean those who wish to marry in a Church of England service are treated more favourably than others.

104. In cases like this, where the Government accepts part of a statutory scheme is incompatible with the Convention, but proposes to appeal against a wider declaration of incompatibility, a choice must be made about the timing of any reform. This choice must clearly strike a balance between the cost, administrative inconvenience and parliamentary time involved in removing the incompatibility and the detriment suffered by those who are affected by the ongoing application of the incompatible provisions. In our view this balance can only be struck on a case-by-case basis. In some circumstances, a breach could have so significant an effect that no degree of administrative inconvenience might justify the failure to bring forward a remedy without delay. We consider that the following factors will be relevant to the assessment of the weight to be given to the need for a speedy remedy:

the right being infringed, the nature of the breach identified and the impact on individuals affected;
whether the individuals affected or likely to be affected are vulnerable;
whether the provision affects a significant number of people;
whether delay will undermine the value of a remedy for a significant number of people;
whether an interim administrative response is in place which removes or reduces the impact of the breach identified by the Court;
the likely time until the final appeal is heard in the case.

105. It is unclear whether the Government took these factors into account in this case. However, when the Government explained its position to us, the appeal was expected to be heard shortly (the Government estimated May 2008) and the effect of these provisions had been modified by the Government's guidance (although this did not remove the discriminatory exclusion for Church of England marriages).

106. The Government has not explained how any proposals to create a separate scheme for the Church of England would be justifiable and compatible with Article 14 ECHR. In the light of the outcome of the Government's appeal to the House of Lords, and the continued operation of the Certificate of Approval Scheme, we expect the Government's proposals for the removal of the discriminatory exemption for Church of England marriages, together with a full explanation of their compatibility with the Convention, to be published without delay. We call on the Government to send us its proposals as soon as they are available.

NATIONALITY DISCRIMINATION IN EARLY RELEASE OF PRISONERS (CLIFT AND HINDAWI V SECRETARY OF STATE FOR THE HOME DEPARTMENT)

107. In our last report, we considered the decision of the House of Lords that sections 46(1) and 50(2) of the Criminal Justice Act 1991 were incompatible with the right to enjoy liberty without unjustified discrimination.[128] Those provisions meant that foreign prisoners liable for deportation would be treated differently from other prisoners for the purposes of early release. These provisions had been repealed, but continued to have limited effect in respect of prisoners whose offences were committed before 4 April 2005. During the last session, we wrote to the Minister to ask how the Government intended to meet this continuing incompatibility with Articles 5 and 14 ECHR.[129] The Minister responded to our letter on 6 July 2007, indicating that the Government intended to take a two-pronged approach to the incompatibility. The Government would introduce an administrative process to ensure that, in practice, the Secretary of State would treat the recommendation of the Parole Board in respect of all affected prisoners as binding. Statutory provisions to formalise these arrangements were proposed in the Criminal Justice and Immigration Bill.[130] These provisions provide for a straightforward repeal of the outstanding transitional arrangements and, in our view, remove the relevant incompatibility.[131] The Criminal Justice and Immigration Act 2008 received royal assent on 8 May 2008. The declaration of incompatibility made in the joined cases of Clift and Hindawi involved a relatively straightforward legal problem with a comparatively simple solution. We welcome the Government's decision to introduce a similarly simple and speedy remedy in the Criminal Justice and Immigration Act. We have previously cautioned against using a large Government Bill to provide a remedy for a relatively simple issue. However, in this case, the Government's proposed interim administrative arrangements ensured that the incompatible provisions of the Criminal Justice Act 1991 had no substantive effects and the timing of the Criminal Justice and Immigration Bill was opportune.

PRISONERS' VOTING RIGHTS (SMITH V ELECTORAL REGISTRATION OFFICER)

108. Section 3 of the Representation of the People Act 1983 is subject to a declaration of incompatibility, in so far as it imposes a complete ban on prisoners voting.[132] We considered this issue, above, in Chapter 3.

103 Javad Nasseri v Secretary of State for the Home Department [2007] EWHC 1548 (Admin) (successful appeal by Secretary of State); R (Wright et al) v Secretary of State for Health and Secretary of State for Education and Skills (QBD) [2006] EWHC 2886 (Admin) (successful appeal by Secretary of State); R (Black) v Secretary of State for Justice [2008] EWCA Civ 359 (subject to appeal). Written Ev 21 and 22. Back

104 Second Monitoring Report, paragraph 27. Back

105 Second Monitoring Report, paragraphs 110 - 121. See Burden & Burden v UK, App No 13378/05, Judgment 12 December 2005; Judgment 29 April 2008 (Grand Chamber). Back

106 Second Monitoring Report, paragraphs 110 - 121. Back

107 Burden v United Kingdom, App. No. 13378/05, 29 April 2008 (Grand Chamber). Back

108 Second Monitoring Report, paragraphs 125 - 134. See cases of R (Morris) v Westminster City Council [2005] EWCA Civ 1184 and R (Gabaj) v First Secretary of State (28 March 2006, unreported). Back

109 See for example, Morris, paragraphs 45 - 54. Back

110 Housing and Regeneration Act 2008, Section 312, Schedule 14. Royal Assent was granted on 22 July 2008. Back

111 Seventeenth Report of Session 2007-08, Legislative Scrutiny: 1) Employment Bill; 2) Housing and Regeneration Bill; 3) Other Bills, HL Paper 95/HC 501, paragraphs 2.34 - 2.37. Back

112 Written Ev 23. Back