Work of the Committee in 2008-09 - Human Rights Joint Committee Contents

3  Legislative scrutiny

23. 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, relevant court judgments and reports by human rights NGOs.

24. In 2008-09 we reported on 10 bills and cleared another 14 from scrutiny.[13] The Child Poverty, Equality and Constitutional Reform and Governance Bills were carried over into the 2009-10 session: we have reported on the first two and the latter remains under scrutiny.[14]

Scope of legislative scrutiny

25. We do not scrutinise private members' bills unless they have a realistic prospect of becoming law and raise significant human rights concerns. None met these criteria in 2008-09. 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 the less significant human rights points which that committee may wish to address.[15] Alternatively our Legal Adviser may assist the legal adviser to the private bill committee in identifying relevant human rights concerns.


26. Following a recommendation in the 2007 report on our work, the Government agreed in principle that we should receive information about the human rights compatibility of Government amendments to bills which "significantly alter or augment the policy or implementation of a Bill".[16] During the session we received numerous helpful letters from Ministers about Government amendments to bills and we reported on Government amendments to the Policing and Crime Bill on injunctions aimed at restricting the activities of members of gangs;[17] to the Coroners and Justice Bill on certified, or "secret" inquests;[18] and to the Marine and Coastal Access Bill on the right of appeal to an independent body.[19]


27. Almost without exception, secondary legislation which is not compatible with the ECHR is ultra vires and, if and when challenged, is struck down by the courts on those grounds.[20] In recent years we have reported on secondary legislation relating to the use of force on children detained in secure training centres and immigration rules relating to highly skilled migrants, both of which raised human rights concerns and were successfully challenged in court.[21] We do not have the resources to systematically scrutinise all secondary legislation for human rights compatibility. However, we liaise at staff level with the select committees dealing with statutory instruments, to assist with the identification of human rights issues and so that we can identify secondary legislation to scrutinise ourselves. We also continued our practice of reporting on the statutory instruments introduced each year to renew the framework of control orders for terrorism suspects and to extend the maximum period of pre-charge detention for such suspects from 14 to 28 days.[22]


28. Pre-legislative scrutiny is an important feature of our legislative scrutiny work. We raised concerns with the draft Coroners Bill when it was published in 2006 which informed our scrutiny of the Coroners and Justice Bill in 2008-09.[23]

29. One point of interest arises from this correspondence. During the passage of the Coroners and Justice Bill, the Government said that, in certain circumstances, an inquest would be suspended in favour of an inquiry initiated by the Secretary of State under the Inquiries Act 2005. We reported on this proposal and concluded that if the inquiries process was used to achieve the same aim as the Government's original proposal for certified or "secret" inquests, we would be concerned that such inquiries might be conducted in a way which would be incompatible with Article 2 of the ECHR.[24] Under what is now the Coroners and Justice Act 2009, a coroner may only refuse to suspend an inquest in favour of an inquiry proposed by the Secretary of State for an "exceptional reason".[25] An almost identical proposal was included in the draft Coroners Bill and we asked the then Minister of State for Justice, Harriet Harman MP, whether the term "exceptional reason" would include circumstances where a coroner had a reasonable belief that the inquiry would not comply with Article 2.[26] She confirmed that, in the Government's view, it would.[27] We draw to the attention of both Houses the Government's undertaking, in 2006, that a coroner may refuse to suspend an inquest in favour of an inquiry under the Inquiries Act 2005 if he reasonably believes that the inquiry will not comply with Article 2 of the ECHR.

30. We have tended not to report on draft bills, which are usually scrutinised by other committees, but we wrote to the Joint Committees on the draft Bribery Bill, following a request from the Chairman of that Committee, to comment on human rights issues raised by the draft bill.[28] Our staff also assist the staff of draft bill committees to identify human rights issues raised by bills.

31. Much of our work involves assessing how legislation has worked in practice, both when scrutinising new legislation and, for example, in our inquiry into UK law into genocide and related offences. We have also corresponded with Government on issues raised by members of the public in relation to the implementation of legislation. We wrote to Lord Myners, Financial Services Secretary to the Treasury, about the time period within which the Financial Services Authority (FSA) can investigate complaints about financial advisers following a letter we received from Mr Alan Lakey of Highclere Financial Services.[29] We concluded from the Minister's reply that the FSA's interpretation of the law in this area did not raise a significant human rights issue for us to consider. We welcome requests from members of the public to investigate Government policy or practice which may not comply with the UK's human rights obligations (although bearing in mind that we cannot investigate individual cases). Where time allows, we will endeavour to take up matters within our remit with the Government and to provide a response to those who raise matters with us explaining the action we intend to take or the reasons why we have decided not to act.

32. We also responded to emails from Mr Nigel Jagger and others who argued that section 58 of the Finance Act 2008, a retrospective tax measure, contravened the Human Rights Act. Retrospective taxation engages Article 1 of Protocol 1 of the ECHR and must be justified by sufficiently strong arguments. We asked Stephen Timms MP, Financial Secretary to the Treasury, for a memorandum setting out the Government's view about the compatibility of section 58 with the Human Rights Act but were told that none would be forthcoming while the matter was subject to judicial review.[30]

33. The Finance Bill is long, complicated and impossible to understand without reference to the enormous existing body of taxation law. We have not found it easy to identify retrospective tax measures to assess whether the interferences with human rights they entail are sufficiently justified. Mr Timms helpfully agreed to discuss our request for a memorandum on retrospective taxation provisions in future Finance Bills with the Ministry of Justice. We look forward to receiving the fruits of this work: scrutiny of the Finance Bill is central to the work of Parliament and we require additional information than that which is normally provided in order to perform our scrutiny role properly.


34. 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 nine bills before Report stage in the first House and one before Second Reading in the second House. 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.[31]

Recurring themes

35. In our legislative scrutiny work we often comment positively that a particular provision is to be welcomed as a human rights enhancing measure. Examples during 2008-09 can be found at paragraph 11 above. We have also identified nine human rights compatibility issues which have arisen consistently in our scrutiny of legislation:

  • The adequacy of the safeguards contained on the face of bills conferring powers to disclose, share or match personal information;[32]
  • 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;[33]
  • The adequacy of judicial and procedural safeguards to protect liberty;[34]
  • The danger of discrimination in the operation of certain provisions;[35]
  • The right of access to a fair hearing before a court;[36]
  • The adequacy of safeguards against powers to search a person or property;[37]
  • The adequacy of procedural safeguards on preventative orders;[38]
  • The adequacy of the powers and independence of human rights institutions;[39] and
  • The adequacy of protection for children and young persons.[40]

36. Specific themes were considered in depth in our reports on Children's Rights (protection for children and young persons) and the Equality Bill (discrimination) and in our inquiry into business and human rights (clarity about whether private bodies are "public authorities" for the purposes of the Human Rights Act).[41]

37. We have on a number of occasions criticised the Government's interpretation of the European Court's decision in Tsfayo v UK, which concerned access to an independent court or tribunal to challenge administrative determinations of civil rights.[42] This point arose in the Marine and Coastal Access Bill in relation to the system for appealing designations of land to form a coastal footpath. The Bill initially did not provide for a right of appeal to an independent court or tribunal against proposals made by Natural England or the decision of the Secretary of State. The Government argued that the combination of procedural safeguards and judicial review would ensure compatibility with the ECHR. We took the view that a right of appeal to an independent body, particularly in relation to disputes about factual questions, was necessary to ensure compliance.[43] Although the Government initially rejected our recommendation, following meetings between Lord Pannick, our Legal Adviser and the bill team, amendments were tabled at a late stage in the House of Lords which met our concerns.[44] We welcome the Government's willingness to amend the Marine and Coastal Access Bill to meet our concerns about compliance with Article 6 of the ECHR in the light of the Tsfayo judgment. We look to the Government to build on its approach to dealing with Tsfayo in this context in future legislation.

Quality of explanatory notes

38. The quality of the analysis of human rights compatibility issues in the explanatory notes to bills has improved over the course of the Parliament. We comment on explanatory notes in our legislative scrutiny reports, commending examples of good practice and drawing Parliament's attention to areas for improvement.[45] A particularly common problem is for explanatory notes to assert that a provision complies with the ECHR without giving any justification for that point of view.[46]

39. We noted last year that, in relation to several bills, a Minister had written to us after the introduction of a bill to set out in more detail than in the explanatory notes his or her view of the human rights issues raised. This practice has continued in 2008-09, although it is not universal. In addition, the Department for Children, Schools and Families responded to our call for evidence on the Government's draft legislative programme by providing us with a detailed human rights memorandum prior to a bill's introduction.

40. Last year we concluded by encouraging Ministers to write to us after introduction and to let our secretariat know that a letter was on its way, so that we could speed up our scrutiny of bills and reduce the number of issues on which further correspondence was necessary. In his reply to our report, Michael Wills MP "welcome[d] the continuation of this practice".[47]

41. We have consistently asked the Government to provide a dedicated human rights memorandum with every bill it publishes, suggesting that this could be done by providing us with a copy of the human rights memorandum circulated within Government, but with any legally privileged material excised.[48] The Government has rejected this suggestion and concentrated instead on improving the references to human rights in explanatory notes.[49] We were surprised and pleased to receive during the session a human rights memorandum on the Marine and Coastal Access Bill which appeared to be exactly what we have long requested: a detailed note—running to nearly 400 paragraphs in total—which seems to have been prepared for consideration within Government but which does not include legally privileged information.[50] We have received similar memoranda concerning the Equality Bill and note that some bill team managers are basing the human rights sections of explanatory notes on the Government's internal human rights memorandum.[51]

42. We welcome—and expect—improvements to the human rights analysis in explanatory notes but we have consistently asked for more a more detailed memorandum from Government on human rights compatibility at the time when a bill is introduced. Although the Government's formal position is that it will not provide such memoranda, we now often receive helpful letters about human rights issues from Ministers when bills are introduced and on one occasion received a full human rights memorandum. We therefore call on the human rights division of the Ministry of Justice to look again at this issue. Following the example set by the Department of the Environment, Food and Rural Affairs with the Marine and Coastal Access Bill and the Government Equalities Office with the Equality Bill, Ministers should provide us with a redacted version of the human rights memorandum circulated within Government when a bill is introduced. We recommend that Government guidance on the introduction of legislation should be amended to give effect to this proposal in time for the first session of the new Parliament.

Committee amendments to Government Bills

43. A list of issues on which on we published amendments to bills, a brief account of how the amendments fared when tabled in both Houses, and their outcome, can be found in annex 3. Changes due to, or influenced by, our work included:

  • the withdrawal of Government proposals for certified inquests, information sharing orders and in relation to the retention, use and disposal of biometric data, following adverse comment by the Committee in correspondence and reports as well as amendments to the relevant bills;
  • the introduction of procedural fairness safeguards in the Parliamentary Standards Bill;
  • the withdrawal of a proposal to increase the investigatory powers of the Electoral Commission;
  • the introduction of a right of appeal to an independent body in respect of the designation of a coastal path under the Marine and Coastal Access Bill;[52]
  • the Government undertaking to replace sections of the Serious Organised Crime and Police Act 2005 relating to protest around Parliament with amendments to the Public Order Act 1986;[53]
  • changes to the strict liability sexual exploitation offence in the Policing and Crime Bill;
  • amendment to the Government's proposal for reducing the size of juries in inquests;
  • amendment to the powers of the Information Commissioner in respect of the private sector; and
  • amendment to the Government's proposals in respect of appeals in judicial review of immigration and nationality matters.

44. The publication and tabling of amendments to bills arising from our recommendations has helped raise our profile, and the profile of human rights issues, in Parliament and contributed to substantive and significant changes to legislation. Last year we suggested that select committees should be able to table amendments in the House of Commons in their own name, rather than in the names of individual Members, principally so that it would be easier to distinguish committee amendments from others on the Order Paper.[54] This proposal was endorsed in November by the Commons Procedure Committee.[55] We look forward to the House of Commons being given the opportunity to agree that amendments to bills (and motions) can be tabled in the name of a select committee, as long as the amendments have been agreed formally without division at a quorate meeting (or, in the case of a joint committee, by a quorum of Commons Members). We also welcome the Procedure Committee's recommendation that committee amendments should have priority in selection for decision under programming.

45. Last year we commented on the scarcity of time available at Report stage in the House of Commons for committee and backbench amendments to bills to be debated. This continues to be a significant problem which undermines effective scrutiny of legislation in the Commons. The time provided for the Report stage of the Policing and Crime Bill, for example, was completely inadequate, particularly given the addition of an entirely new Part by the Government during the Committee stage. Many of our amendments tabled in the Commons to the Coroners and Justice Bill were also not debated or the subject of cursory debate. We are pleased to note that the House of Commons Reform Committee, chaired by Tony Wright MP, recognised this issue and made some far-reaching recommendations. We particularly welcome and endorse that Committee's view that "there should be a presumption that no major group [of amendments] should go undebated".[56] The House of Commons should be given an early opportunity to debate changes to procedure arising from the report of the Wright Committee, including a new approach to the allocation of time for Report stage debates which will enable the Commons to debate legislation more thoroughly than is often possible at present.

Civil society input into legislative scrutiny work

46. 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. We welcome engagement with members of the public, NGOs and others about the human rights issues raised in bills.

47. The publication in draft of the Government's legislative programme has helped us plan our work and attract more civil society input and should now be regarded as a routine part of the legislative cycle.

13   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 sufficiently significant human rights issues. Back

14   Twenty-fifth Report, Child Poverty Bill, HL Paper 183, HC 1114 and Twenty-sixth Report, Equality Bill, HL Paper 169, HC 736 (hereafter Equality Bill report). Back

15   See written evidence page 93, page 124 and page 127  Back

16   Eighteenth Report of Session 2007-08, Government Response to the Sixth Report of Session 2007-08: The Work of the Committee in 2007 and the State of Human Rights in the UK, HL Paper 103, HC 526, (hereafter Reply to 2007 annual report) p9. Back

17   Fifteenth Report, Legislative Scrutiny: Policing and Crime Bill (gangs injunctions), HL Paper 81, HC 441. Back

18   Sixteenth Report, Legislative Scrutiny: Coroners and Justice Bill (certified inquests), HL Paper 94, HC 524 (hereafter Certified Inquests). Back

19   Twenty-first Report, Legislative Scrutiny: Marine and Coastal Access Bill; Government Response to the Committee's Thirteenth Report of Session 2008-09, HL Paper 142, HC 918 (hereafter 21st report).  Back

20   Reply to 2007 annual report p10. Back

21   Eleventh Report, Session 2007-08, The Use of Restraint in Secure Training Centres, HL Paper 65, HC 378, and Twentieth Report, Session 2006-07, Highly Skilled Migrants: Changes to the Immigration Rules, HL Paper 173, HC 993. Back

22   Fifth Report, Counter--Terrorism Policy and Human Rights (Fourteenth Report): Annual Renewal of Control Orders Legislation 2009, HL Paper 37, HC 282 (hereafter Control orders renewal 2009) and Eighteenth Report, Counter-Terrorism Policy and Human Rights (Fifteenth Report): Annual Renewal of 28 Days 2009, HL Paper 119, HC 726 (hereafter 28 days renewal 2009). Back

23   Written evidence, pages 73-88 Back

24   Certified inquests, paragraphs 1.24-1.27. Back

25   Schedule 1, paragraph 3. Back

26   Written evidence, page 73. Back

27   Written evidence, page 79 Back

28   First Report of Session 2008-09, Joint Committee on the draft Bribery Bill, HL Paper 115, HC 430-II, Ev, pp328-31. Back

29   The relevant correspondence can be found at pp 109-124. Back

30   Correspondence from Mr Timms has been published in our Third Report of 2009-10, Legislative Scrutiny; Financial Services Bill and the Pre-Budget Report Back

31   See Table 4. Back

32   e.g. Coroners and Justice Bill, Policing and Crime Bill. Back

33   e.g. Health Bill, Welfare Reform Bill. Back

34   e.g. Annual renewal of control orders; Annual renewal of 28 days pre-charge detention, Coroners and Justice Bill, Policing and Crime Bill. Back

35   e.g. Borders, Citizenship and Immigration Bill, Welfare Reform Bill, Equality Bill, Child Poverty Bill. Back

36   e.g. Annual renewal of control orders; Annual renewal of 28 days pre-charge detention, Coroners and Justice Bill, Borders, Citizenship and Immigration Bill, Marine and Coastal Access Bill, Policing and Crime Bill, Welfare Reform Bill, Parliamentary Standards Bill. Back

37   e.g. Political Parties and Elections Bill, Coroners and Justice Bill, Policing and Crime Bill, Children and Learning Bill. Back

38   e.g. Policing and Crime Bill. Back

39   e.g. Policing and Crime Bill. Back

40   e.g. Policing and Crime Bill, Apprenticeships, Skills, Children and Learning Bill, Equality Bill, Child Poverty Bill. Back

41   See also paragraphs 48 and 62. Back

42   The Tsfayo case is App. No. 60860/00, 14 November 2006. Also see Third Report of session 2006-07, Legislative Scrutiny: Second Progress Report, HL Paper 39, HC 287, Concessionary Bus Travel Bill. Back

43   Eleventh Report, Legislative Scrutiny: Health Bill; Marine and Coastal Access Bill, HL Paper 69, HC 396, paragraphs 2.2 -2.11. Back

44   See 21st ReportBack

45   e.g. Equality Bill report, paragraphs 5-7, and Eighth Report, Coroners and Justice Bill, HL Paper 57, HC 362, paragraph 1.4. Back

46   e.g. see Ninth Report, Borders, Citizenship and Immigration Bill, HL 62, HC 375, paragraph 1.7. Back

47   2007-08 Report, paragraph 45 and 17th report, Ev p37. Back

48   Sixth Report, session 2007-08, The Work of the Committee in 2007 and the State of Human Rights in the UK, HL Paper 38, HC 270, paragraph 24. Back

49   Reply to 2007 annual report, pp8-9. Back

50   We will make this memorandum available in the Parliamentary Archives. Back

51   For example, see the Coroners and Justice Bill.  Back

52   See paragraph 34. Back

53   See paragraphs 50-51. Back

54   2007-08 Annual Report, paragraph 53. Back

55   Fifth Report, Session 2008-09, Procedure Committee, Tabling of amendments by select committees, HC 1104. Back

56   First Report, Session 2008-09, House of Commons Reform Committee, HC 1117, paragraph 115. Back

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