Legislative scrutiny: Constitutional Reform and Governance Bill; Video Recordings Bill - Human Rights Joint Committee Contents


Conclusions and recommendations


Constitutional Reform and Governance Bill

Purposes and effect of the Bill

1.  We welcome a number of aspects of the Bill as human rights enhancing measures, in particular the repeal of the provisions concerning protest around Parliament in the Serious Organised Crime and Police Act 2005, or as measures enhancing opportunities for effective human rights scrutiny in Parliament, such as the provisions in the Bill concerning the ratification of international treaties. However, from a human rights perspective we are disappointed that the Bill does not reflect the much more ambitious scope of the Prime Minister's original statement about constitutional reform to the House of Commons in July 2007, which included a commitment to exploring the possibility of a new UK Bill of Rights, building on the Human Rights Act, as part of a wider programme of constitutional reform: a subject which we enquired into and reported favourably on in 2008 in our Report A Bill of Rights for the UK? We are also disappointed that the Bill does not take the opportunity to address a number of longstanding issues of human rights concern, such as the restrictive judicial interpretation of the meaning of "public function" in the Human Rights Act 1998 which continues to deprive significant numbers of vulnerable users of public services of the protection of that Act. (Paragraph 1.6)

Protest around Parliament

2.  We welcome the Government's decision to legislate to repeal sections 132 to 138 SOCPA and, in particular, to amend the Public Order Act to deal with protest around Parliament. This is consistent with much of the evidence we received during our policing and protest inquiry and gives effect to the recommendations which we made in our Reports on this issue. As we have previously stated, sections 132 to 138 have proved too heavy-handed in practice, are difficult to police, and lack widespread acceptance by the public. We also welcome the Government's decision to reduce the area around Parliament in which special requirements will apply to 250 metres as this constitutes a more proportionate response which is less intrusive on individual rights to freedom of association and expression. However, some details of the proposed replacement provisions give us cause for concern, as they are, in parts, widely drafted and may result in legal uncertainty. (Paragraph 1.12)

3.  We agree with the Minister that it is vitally important that the police, parliamentarians and protesters are clear about the level of access to Parliament which is envisaged. This accords with the evidence we heard and the recommendations we made in our Policing and Protest Report. We note that conditions may be imposed which are necessary "in the [senior police] officer's reasonable opinion". However, we are concerned that the "reasonable" opinion of an officer is a subjective test which raises the risk of uncertainty as to what an individual officer will or will not deem to be "reasonable" in the circumstances. This may lead to confusion for protesters, police officers and those seeking access to the Parliamentary estate. (Paragraph 1.17)

4.  We welcome the Minister's commitment to publishing guidance to the Metropolitan Police in a Home Office Circular on the operation of the new powers. Such guidance should make clear the kinds of conditions which it is reasonable for an officer to impose. The new legislation on protest around Parliament will also apply to locations away from Westminster where Parliament or a parliamentary committee meets and consequently guidance should be available to police officers across the UK. We reiterate our recommendation that clear, up to date and accurate guidance on policing protest, in a variety of circumstances, is needed for police officers throughout the country and urge ACPO and the Home Office to ensure that the various manuals on policing protest are rapidly updated to take account of the proposed new powers in this Bill. We share Her Majesty's Inspector's view that practical methods of disseminating information to officers in a timely manner need to be developed to avoid a repetition of the time lag which has occurred in relation to the revision of the current ACPO manuals. (Paragraph 1.19)

5.  We welcome the Government's commitment to making available the draft text of the order specifying the requirements for access to Parliament in time for the Committee stage debate. This facilitates Parliament's ability to scrutinise the provisions for human rights compliance. We accept that there may be some need for flexibility, and we look forward to seeing the exact terms of the draft order to see if our concerns about legal certainty are met. (Paragraph 1.22)

6.  We welcome the fact that the purpose of the order making power is clearly defined in terms of maintaining access to and from the Palace of Westminster (or a specified building being used by Parliament) and that the scope of any discretions conferred by the order on the police must also be limited by that overriding purpose of maintaining access. However, we are concerned about the vagueness of the language used in paragraphs 14ZA(5) and 14ZC(8) of Schedule 5 and the possibility of open-ended and broadly drafted discretions being conferred on police officers by these provisions. We agree that officers policing an event will have to exercise their discretion as to how the specified requirements for maintaining access should be met. The exercise of that discretion could relate, for example, to the precise entrances to Parliament which should be kept open, but only insofar as it is necessary in order to maintain access to and from the Palace of Westminster or a specified building. We recommend that the Bill be amended to reduce the scope for any possible uncertainty about the discretions which may be conferred on the police by the order specifying the requirements for maintaining access. (Paragraph 1.24)

7.  We agree with the Government's view that it is desirable, in terms of legal certainty and clarity for police and protesters alike, for the same or similar provisions to apply throughout the country in relation to protest and that as few distinctions between different protests should be created as possible. However, in view of the particular significance of Parliament as a venue for protest and the historic problems which have arisen in policing protest in this area, we consider that it is appropriate for a more precise list of conditions to be set out in relation to public processions around Parliament. We recommend that the Bill be amended to include an exhaustive list of conditions which may be applied to public processions around Parliament. (Paragraph 1.28)

8.  Alternatively, in the interests of legal certainty, we recommend that the Government publish in the relevant guidance a comprehensive list of the sorts of conditions that may be imposed on processions under this section. (Paragraph 1.29)

Ratification of treaties

9.  We therefore welcome in principle the implementation of the Government's proposal to try to increase parliamentary involvement in the ratification of treaties. (Paragraph 1.38)

10.  We welcome the Government's unequivocal statement of its intention to continue the practice of laying an Explanatory Memorandum at the same time as the treaty. However, we recommend that the laying of an Explanatory Memorandum at the same time as the treaty be an express requirement in the Bill which must be met before a treaty can be ratified. (Paragraph 1.41)

11.  We recommend that the Government undertake to send copies of all treaties with human rights implications to the JCHR, along with their Explanatory Memoranda, as soon as they are laid under clause 24(1). (Paragraph 1.42)

12.  We remain of the view we expressed in our report on the Prisoner Transfer Treaty with Libya, that when a select committee states that it intends to scrutinise a treaty, ratification should be delayed until the committee's inquiry has concluded. We recommend that the Bill be amended to require the Minister to lay a statement explaining why any request for an extension of the 21 day sitting period has been refused. (Paragraph 1.46)

13.  We recommend that the ministerial power to disapply the new regime in exceptional cases be removed from the bill. (Paragraph 1.48)

14.  We welcome the Government's unequivocal statement of its intention to continue the practice of laying an Explanatory Memorandum at the same time as the treaty. However, we recommend that the laying of an Explanatory Memorandum at the same time as the treaty be an express requirement in the Bill which must be met before a treaty can be ratified. (Paragraph 1.49)

The right to a fair hearing and access to court in the determination of civil rights

15.  We therefore recommend that the Bill be amended to provide that the First Commissioner and other Civil Service Commissioners may only be removed by HM the Queen on an Address by each House of Parliament. (Paragraph 1.51)

16.  As we have repeatedly pointed out to Government departments, where the Government argues that a provision in a Bill is compatible with Article 6(1) ECHR because of the combination of the availability of judicial review and the procedures before the original decision-maker, we cannot assess the provision's compatibility with Article 6(1) ECHR unless we know exactly what those procedures are going to be. In the absence of this information we cannot advise Parliament about the degree of risk that the Bill may lead to the removal of Commissioners in breach of Article 6(1) ECHR. (Paragraph 1.54)

17.  We consider the provisions in the Constitutional Reform Act 2005 concerning the removal of judicial office holders to be a good model for the protection both of the Article 6(1) rights of the office holders and for the constitutional principle of civil service independence. We recommend that the Bill be amended to require that the Minister's power to remove Civil Service Commissioners and the First Commissioner from office be exercisable only after the Minister has complied with prescribed procedures and to provide a power to make regulations prescribing the procedure to be followed. We also recommend that the Government publish at least the outline of the procedure that it envisages should be followed before removal of Civil Service Commissioners and the First Commissioner (Paragraph 1.55)

18.  We recommend that the Government amend the Bill, either to prescribe the minimum content of the procedures for the investigation and consideration of complaints by the Commission, or to provide a power to make regulations prescribing such minimum procedural protections, in order to ensure that the civil servant who is the subject of a complaint about a breach of the code receives a fair hearing, including access to an independent and impartial court or tribunal. (Paragraph 1.63)

19.  We therefore recommend that the Government amend the Bill, either to prescribe the minimum content of the procedures for the investigation and consideration by the Commission of complaints about selection competitions, or to provide a power to make regulations prescribing such minimum procedural protections, in order to ensure that those involved in a dispute about the fairness and openness of a selection receive a fair hearing, including access to an independent and impartial court or tribunal (Paragraph 1.67)

20.  The provisions in the Bill concerning the removal, expulsion and suspension of members of the House of Lords raise a difficult issue about the relationship between common law fairness and parliamentary privilege. Members are entitled to be treated fairly, but the House of Lords is entitled to set its own procedure. We accept that the procedures adopted by the House of Lords in its new Code of Conduct satisfy the common law requirements of fairness (Paragraph 1.72)

21.  We accept that these provisions raise a difficult issue about the relationship between Article 6(1) ECHR and parliamentary privilege. The Government accepts that the power to remove these office holders engages Article 6(1) ECHR and that Parliament is under an obligation to adopt a procedure that is fair in the circumstances, but parliamentary privilege demands that it is for Parliament itself to devise those procedures. Where Article 6 applies there must also be a right of access to a court or tribunal to challenge removal, but this is also in tension with the traditionally recognised privileges of Parliament. There is nothing in the Human Rights Act to require Parliament to address these issues, but parliamentary privilege will not provide a sufficient defence to a challenge brought before the European Court of Human Rights in Strasbourg and we therefore recommend that the Leader of the House of Commons bring forward proposals which are Article 6(1) compliant and make provision for a right of access to a court or tribunal. (Paragraph 1.76)

Time limits for human rights actions against devolved administrations

22.  We accept the analysis of the compatibility of these provisions in the Explanatory Notes. (Paragraph 1.80)

Nationality discrimination in Crown employment

23.  We welcome the Government's willingness to amend the Bill to address the longstanding problem of nationality discrimination in Crown employment, which enhances the protection of the human rights of non-nationals in the UK (Paragraph 1.85)

The meaning of "public function" in the Human Rights Act

24.  In view of the Government's seeming paralysis on this issue, we recommend an amendment to this Bill which would close the gap in human rights protection for the users of public services delivered by private providers, by inserting an interpretative provision clarifying the meaning of "public function" in s. 6 of the Human Right Act 1998. We emphasise that the purpose of this amendment is purely to restore the broader scope of the Act's protections which we believe was originally intended by Parliament when it enacted the Human Rights Act in 1998. (Paragraph 1.88)

The Intelligence and Security Committee

25.  In view of continuing serious concerns about the adequacy of the ISC as a parliamentary mechanism for ensuring the accountability of the intelligence and security services, we recommend that the Intelligence Services Act 1994 be amended to change the formal system of nomination to the ISC and the method of appointment of its Chair, in accordance with the reforms recommended by the House of Commons Reform Committee to the system of election of members and Chairs of House of Commons Select Committees. (Paragraph 1.92)

Royal Marriages and Succession to the Crown

26.  We consider the amendments concerning royal marriages and succession to the Crown to be human rights enhancing measures. Discrimination against Catholics in the law of marriage is contrary to Article 14 ECHR in conjunction with Article 12 and also arguably contrary to the freedom of religion of Catholics protected by Article 9 ECHR. Male primogeniture in the law of inheritance generally is in our view arguably contrary to Article 14 ECHR in conjunction with Article 1 Protocol 1.[117] On the basis of human rights principles, we recommend that the Government agree to the amendments tabled by Dr. Harris on these issues. (Paragraph 1.97)

Video Recordings Bill

27.  The human rights issues raised by this Bill are issues which in our view should be subjected to parliamentary scrutiny, either in the context of the Digital Economy Bill or a relevant Private Member's Bill. However, in view of those imminent opportunities and the fact that the provisions in the 1984 Act, which serve an important child protection purpose, are currently unenforceable, we accept the Government's case for fast-tracking this legislation and we therefore do not propose to subject it to further scrutiny. (Paragraph 2.5)




117   In 2004 the Constitutional Court of South Africa declared the customary law rule of male primogeniture to be in breach of the South African Constitution, because it discriminated unfairly against women and illegitimate children on grounds of gender and birth: Bhe v Magistrate Khayelitsha and others (2005) 1 BCLR 1 (CC). Back


 
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