The Work of the Committee in 2007-08 - Human Rights Joint Committee Contents

3  Legislative scrutiny

30. We scrutinise all Government bills to assess whether or not they comply with the UK's human rights obligations and to consider ways in which bills can enhance human rights in the UK. We focus our efforts on bills which raise the most significant human rights issues, founding our work on detailed analyses of bills undertaken by our legal advisers. In considering whether a bill crosses our "significance threshold" we take into account the latest reports of international monitoring bodies and human rights NGOs as well as significant court judgments.

31. In 2007-08 we reported on twelve bills and cleared another eight from scrutiny.[28] The Political Parties and Elections Bill, which completed its Committee stage in the Commons towards the end of the session and was carried-over into the 2008-09 session, remains under scrutiny.

Scope of legislative scrutiny

32. We do not scrutinise private members' bills unless they have a realistic prospect of becoming law and raise significant human rights concerns. Nor do we report on private bills unless they raise significant issues, although we may write to the Chairman of a committee on a private bill to draw attention to less significant human rights points which that committee may wish to address.[29]


33. Last year, we recommended that Government amendments to bills should be accompanied by full explanatory material on any human rights issues they raise. In response, the Human Rights Minister said that "the provision of such information is already something that my officials encourage where appropriate" and that internal guidance could reflect this requirement in relation to amendments which "significantly alter or augment the policy or implementation of a Bill, or a Bill's human rights compatibility".[30] We welcome this encouraging reply. During the session we received helpful explanatory letters about Government amendments tabled to the Pensions Bill and we were able to report on significant amendments to the Criminal Justice and Immigration Bill in time to influence parliamentary debate.


34. We have previously indicated our wish, in principle, to scrutinise more statutory instruments which raise significant human rights concerns. In his reply to our previous annual report, the Human Rights Minister supported this intention but noted that "it is almost always ultra vires for a Minister to seek to make secondary legislation that is incompatible with the Convention Rights".[31] During 2007-08 we published a critical report on the Secure Training Centres (Amendment) Rules 2007 which were later quashed by the Court of Appeal, in part because they were not compatible with the European Convention on Human Rights.[32] We have also continued to monitor changes to the Immigration Rules relating to the Highly Skilled Migrant Programme, on which we reported in August 2007, and where the criticisms we made of the Government's policy were reflected in the judgment of the High Court in April 2008.[33] Our evidence session with the then Immigration Minister, Liam Byrne MP, in February 2008, focused in particular on that issue and we also asked the Home Secretary about it in our evidence session in October.[34] We have also reported on the statutory instruments which renew the framework of control orders for terrorism suspects and extend the maximum period of pre-charge detention for such suspects to 28 days, both of which raise serious human rights concerns.[35]


35. We are committed to undertaking pre-legislative scrutiny where a proposed policy or legislative measure raises serious human rights concerns and we can find time in our programme to undertake an effective inquiry which supplements work by other parliamentary bodies. We published a detailed Report on the Government's new proposal to extend the maximum period of pre-charge detention for terrorism suspects to 42 days on 14 December 2007, only eight days after the proposal was first published.[36] We continued to scrutinise the Government's justification for the proposal after it was included in the Counter-Terrorism Bill and we tabled amendments to the Bill for it to be left out. After a comprehensive defeat in the House of Lords, the Government dropped the relevant clauses from the Bill.

36. We have tended not to scrutinise draft bills which are the subject of scrutiny by other parliamentary committees but we are prepared to assist such committees when human rights issues emerge. We wrote to the Committee on the draft Constitutional Renewal Bill, following a request from the Chairman of that Committee, to comment on human rights issues relating to protest around Parliament.[37] We have taken evidence on this issue ourselves as part of our ongoing Policing and Protest inquiry. We have also taken a close interest in the draft (partial) Immigration and Citizenship Bill, in anticipation of scrutiny of the bill proper when it is formally introduced to Parliament.

37. Post-legislative scrutiny is a theme of much of our work - for example, our inquiry into policing and protest has looked at how public order offences relating to protest have worked in practice. We will be considering further options for post-legislative security during 2008-09.


38. We aim to report on bills before Report stage in the first House, if possible, or before Second Reading in the second House. During the session we reported on six Bills before report stage in the first House and a further four Bills before Second Reading in the Second House. Reports on two other Bills were published before Committee stage in the Second House.

39. Where we are unable to publish a Report in time for Report stage in the first House we make our correspondence with the relevant Minister available on the internet and in Parliament.[38]

Recurring themes

40. During our legislative scrutiny work we often comment positively that a particular provision is to be welcomed as a human rights enhancing measure. Examples during 2007-08 can be found at paragraph 19 above. Last year, however, we drew attention to a range of human rights compatibility issues which had arisen during scrutiny of a number of bills. The list bears repeating:

  • The adequacy of the safeguards contained on the face of Bills conferring powers to disclose, share or match personal information;[39]
  • Lack of clarity about whether private bodies are "public authorities" for the purposes of the Human Rights Act where Bills confer powers and functions on them;[40]
  • The adequacy of judicial and procedural safeguards to protect liberty;[41]
  • The danger of discrimination in the operation of certain provisions;[42]
  • The right of access to a fair hearing before a court;[43]
  • The adequacy of safeguards against powers to search the person or property;[44]
  • The adequacy of procedural safeguards on preventative orders;[45]
  • The adequacy of the powers and independence of human rights institutions;[46]
  • The adequacy of protection for children and young persons.[47]

41. We have published Reports devoted to two of these themes in recent years. Our March 2007 Report on the meaning of public authority in the Human Rights Act drew attention to the consequences of the YL judgment, in which it was found that the Human Rights Act did not apply to care home services paid for by the public purse but contracted out to private sector providers. We continued to raise this issue with the Government during 2007-08, including in a mini-conference in January and during the passage of the Health and Social Care Bill. Although the Government used that Bill to deal with the problem in relation to care homes, the YL judgment has implications in other contexts, such as social housing and social work functions. We drew attention to this in our Reports on the Housing and Regeneration and Children and Young Persons Bills and await the Government's consultation paper on this issue with interest.

42. In March we published a Report on data protection and human rights, following oral evidence from the Human Rights Minister and the Information Commissioner.[48] The Report pulled together criticisms we had made of the legislative arrangements for data sharing and data protection in numerous legislative scrutiny reports during the current Parliament. We will continue to seek opportunities to report on themes such as this arising from our scrutiny of bills.

Quality of Explanatory Notes

43. We have consistently asked the Government to provide a dedicated human rights memorandum with every bill it publishes. We have suggested that this could easily be done by providing us with a copy of the human rights memoranda on bills circulated within Government, but with any legally privileged material excised.[49] This would provide us with more detailed information about the human rights issues raised in bills than is often provided in the explanatory notes to bills, making our scrutiny work more efficient and enabling us to focus more easily on the most significant issues. The Government would benefit in providing this information on a routine basis at the time a bill is published because we would not need to write to Ministers to ask for it and would be able to clear bills from scrutiny at an earlier stage.

44. The Government has rejected this suggestion and concentrated instead on improving the references to human rights issues in explanatory notes. Last year we noted examples of both good and bad practice in this regard.[50] Although we have continued to notice a general improvement in the explanatory material on human rights published with bills we still draw attention in our Reports to deficiencies in explanatory notes. A particularly common problem is for explanatory notes to assert that a provision complies with the European Convention on Human Rights without giving any justification for that point of view.[51]

45. A new development this year has been for Ministers to write to us after the introduction of a bill to set out in more detail than in explanatory notes their view of the human rights issues it raises.[52] We have also received memoranda from Government dealing with proposals for bills in the draft legislative programme for 2008-09.[53] We welcome this approach, which comes close to providing Parliament with a dedicated human rights memorandum. We encourage Ministers to write to us in this way immediately after a bill is introduced and to let our secretariat know that a letter is on its way. This will help us identify those bills which warrant further scrutiny and reduce the number of issues on which we will need to press Ministers for further information.

46. Last year we indicated that we wished to follow the example of the House of Lords Delegated Powers and Regulatory Reform Committee and draw up our own Guidance for Departments, setting out what we expect from departments in the explanatory material dealing with the human rights issues raised by a Bill.[54] The Human Rights Minister expressed interest in this suggestion.[55] Work is progressing on draft guidance, which we will wish to discuss with the Human Rights Division in the Ministry of Justice and with other relevant parts of Government. We aim to bring this work to a conclusion during 2008-09.

Committee amendments to Government Bills

47. Last year we said that we would "suggest amendments to give effect to our recommendations where possible, with a view to Members of our Committee tabling and speaking to them in debate in both Houses".[56] This followed our initial experience in tabling amendments to three bills in the 2006-07 session. In doing this we aim to raise the profile of human rights issues, and our work, in both Houses by connecting more closely the reports we publish with the legislative process and to enable Members of both Houses to join the debate on the issues we have raised.

48. In his reply to our last annual report, the Human Rights Minister struck a decidedly unenthusiastic note. Although "in principle" he could "see the merit in creating an opportunity, particularly during the Committee stage of a Bill in either House, for Members to discuss major issues raised by the Joint Committee in its report on that Bill" he went on suggest that:

"the Committee considers carefully the implications of tabling large numbers of amendments, particularly at Report stage in the House of Commons, that give effect to all of the Committee's recommendations on a Bill, or which relate predominantly to the Committee's conclusions in a thematic report. In practice, this would lead to the Government responding twice to the Committee's recommendations - once in writing and again in debate - and taking up valuable time on the floor of the House without giving any opportunity for a focussed debate on a point of significant human rights interest."

49. These comments reflected remarks by Ben Bradshaw MP, Minister of State at the Department of Health, in replying to amendments we tabled to the Health and Social Care Bill at Report stage in the Commons in February. He said:[57]

"I understand that proposing a large number of amendments in this way represents a new approach for the Joint Committee, but in this instance I am not sure that it is the most effective way to proceed. Where the Government are giving undertakings or are already pursuing a particular policy, I hope that the Committee will accept those undertakings rather than pursue the course of specifying every last detail directly in the legislation."

50. Our response was to remind the Minister that we would decide on the effectiveness of the initiative in the light of experience and that the Minister's reaction was "encouragement to continue".[58]

51. A list of issues on which we tabled amendments to Bills, a brief account of how the amendments fared, and their outcome, can be found in Annex 3. Our main achievements were as follows:

  • We played a major role in persuading the Government of the need to bring private sector care homes within the ambit of the Human Rights Act, in relation to publicly-funded residents. Our amendment to the Health and Social Care Bill was debated in both Houses before the Government brought forward its own amendment in the House of Lords.
  • Other amendments to the Health and Social Care Bill - on the Care Quality Commission and regulation making powers in relation to public health - were made by the Government in the House of Lords in response to points we had pressed in debate.
  • We tabled amendments to the Counter-Terrorism Bill to remove the provisions relating to 42 days pre-charge detention and coroners' inquests. The relevant clauses were withdrawn by the Government.
  • We persuaded the Government to bring forward amendments in the House of Lords to the Criminal Justice and Immigration Bill on Youth Rehabilitation Orders, Premises Closure Orders, Violent Offender Orders and the sentencing of children.
  • We proposed an amendment to the Employment Bill to clarify the circumstances in which a trade union can exclude or expel a person from membership because of their membership of a political party, in order to comply with the judgment of the European Court of Human Rights in the Aslef case. Two of our Members - Lord Morris of Handsworth and Lord Lester of Herne Hill - were involved in discussions with the Government about the precise wording before a final version, similar to the amendment we had proposed, was agreed by both Houses.

52. The publication and tabling of Committee amendments has, in our view, raised our profile in both Houses, raised the profile of human rights issues - particularly on the Counter-Terrorism, Health and Social Care and Criminal Justice and Immigration Bills - and been effective in contributing to changes to legislation. We intend to continue tabling amendments to Bills, focusing as before on what we consider to be the most significant issues. We also intend to continue framing amendments which give effect to recommendations in our thematic reports and deal with adverse court judgments on human rights issues.

53. Parliamentary rules do not provide for amendments to be tabled by a Committee, so our amendments are tabled in the names of individual Members in the relevant House. This could make it difficult to distinguish amendments which have been agreed and published by the Committee from those tabled by our Members in their individual capacities, particularly in the Commons where the pressure on debating time is most intense. We see merit in exploring whether Committees could table amendments to Bills in the House of Commons in their own name, rather than in the names of individual Members, and will raise this matter with the Commons Liaison Committee.

54. Another problem in the Commons is the scarcity of debating time at Report stage, especially for backbench amendments and often for Government new clauses and amendments. We tabled an amendment to the Children and Young Persons Bill intended to bring private sector providers of social work services within the ambit of the Human Rights Act, but the amendment was not called because of lack of time. The House was deprived of the opportunity to debate an important human rights issue raised by the bill because the programme motion did not provide sufficient time. We intend to continue monitoring occasions in the House of Commons where our amendments, and Government new clauses and amendments raising significant human rights concerns, are not reached because of lack of time and communicate our concerns to the Modernisation Committee when it next considers the operation of programming.

Civil society input into legislative scrutiny work

55. We publish a considerable volume of information about our work on our website, including a summary of the main points we intend to raise about a bill and our detailed letters to Ministers. This often elicits memoranda from NGOs and others about bills and we also often receive the briefings prepared by such organisations for parliamentary debates.

56. The publication in draft of the Government's legislative programme has helped us plan our work and attract more civil society input. We announced in July that we were likely to focus in particular on the Coroners and Death Certification, Equality and Immigration and Citizenship Bills and that there were a number of other bills also likely to raise human rights concerns. We published a call for evidence on these proposed bills and have so far received over 50 submissions, principally in relation to the draft (partial) Immigration and Citizenship Bill. In addition, we included sessions in our awayday in November on immigration and equality issues and organised briefing meetings on the draft (partial) Immigration and Citizenship Bill with the bill team and the Immigration Law Practitioners Association. The contents of the Queen's Speech included some significant changes since the publication of the draft legislative programme, most notably a less comprehensive Borders, Immigration and Citizenship Bill and the dropping for now of the Communications Data Bill. Nevertheless, we welcome the Government's decision to publish its legislative programme in draft because it has enabled us to scrutinise its proposals more effectively. We encourage the Government to continue this practice and to publish more bills in draft.

28   In clearing a bill from scrutiny we decide not to engage in further work on the Bill - such as writing to the appropriate Minister or publishing a report - because we consider that the bill does not raise significant human rights issues. Back

29   For more details of our working practices see Working practices report and 2007 annual reportBack

30   2007 annual report: Government reply, p9. Back

31   2007 annual report, paragraph 41 and 2007 annual report: Government reply, p10. Back

32   STC reportBack

33   Correspondence relating to this issue is published on our website and with this Report, pp 47-49 Back

34   The oral evidence from Liam Byrne MP, then immigration minister, in February is published online and will shortly be published in hard copy. The oral evidence from the Home Secretary in October is published with this Report, Ev 11 Back

35   Tenth Report, Session 2007-08, Counter-Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of Control Orders Legislation 2008, HC 356, HL Paper 57 and Twenty-fifth Report, Session 2007-08, Counter-Terrorism Policy and Human Rights (Twelfth Report): Annual Renewal of 28 Days 2008, HC 825, HL Paper 132. Back

36   42 Days reportBack

37   Session 2007-08, Report of the Joint Committee on the draft Constitutional Renewal Bill, HC551-II, HL Paper 166-II, Ev 78. Back

38   See table 4. Back

39   E.g. Child Maintenance and Other Payments Bill, Health and Social Care Bill, Human Fertilisation and Embryology Bill, Housing and Regeneration Bill, Education and Skills Bill. Back

40   E.g. Health and Social Care Bill, Children and Young Persons Bill, Human Fertilisation and Embryology Bill, Housing and Regeneration Bill. Back

41   E.g. Counter-Terrorism Bill, Health and Social Care Bill, annual renewal of control orders, annual renewal of 28 days pre-charge detention. Back

42   E.g. Housing and Regeneration Bill, annual renewal of control orders. Back

43   E.g. Health and Social Care Bill, annual renewal of control orders, annual renewal of 28 days pre-charge detention. Back

44   E.g. Education and Skills Bill. Back

45   E.g. annual renewal of control orders, Criminal Justice and Immigration Bill (Violent Offender Orders). Back

46   E.g. Criminal Justice and Immigration Bill. Back

47   E.g. Criminal Justice and Immigration Bill, Children and Young Persons Bill, Secure Training Centre (Amendment) Rules, Education and Skills Bill. Back

48   Data protection reportBack

49   2007 annual report, paragraph 24. Back

50   Ibid, paragraph 26. Back

51   For example, the provisions in the Counter-Terrorism Bill relating to post-charge questioning. Back

52   For example, see Seventeenth Report, Session 2007-08, Legislative Scrutiny: 1) Employment Bill; 2) Housing and Regeneration Bill; 3) Other Bills, HC 501, HL Paper 95, appendix 4. Back

53   We will be publishing the submissions we have received on our website during January 2009. Back

54   2007 annual report, paragraphs 29-30. Back

55   2007 annual report: Government reply, p9. Back

56   2007 annual report, paragraph 42. Back

57   HC Deb, 18 Feb 08, c58. Back

58   Fifteenth Report, Session 2007-08, Legislative Scrutiny, HC 440, HL Paper 81, paragraph 3.6. Back

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