Written Evidence |
Letter from the Chair of the Committee to Rt Hon
Jack Straw MP, Lord Chancellor and Secretary of State for Justice,
dated 26 October 2009
Constitutional Reform and Governance Bill
The Joint Committee on Human Rights is considering
the Constitutional Reform and Governance Bill and would be grateful
for your answers to a number of questions concerning its human
rights compatibility and the opportunities it presents to enhance
(1) Protest around Parliament
As you will be aware, the Committee expressed concerns
about the human rights compatibility of the provisions in the
Serious Organised Crime and Police Act 2005 ("SOCPA")
when they were originally enacted and in its recent report on
policing and protest called for a fundamental reform of the legal
regime governing protest around Parliament. It is likely to welcome
the repeal of ss. 132-138 of SOCPA and the reduction of the area
around Parliament in which special requirements will apply. However,
it has a number of questions about the details of the proposed
replacement provisions which are, in parts, widely drafted and
may therefore give rise to legal uncertainty.
Schedule 4 allows a senior police officer to give
directions where a public procession or public assembly takes
place within 250 metres of Parliament or a specified building.
These directions impose conditions on those organising or taking
part in a procession or assembly which "in the officer's
reasonable opinion, are necessary" for ensuring that certain
specified requirements are met.
1. Please provide examples of the types of conditions
which the Government considers will be reasonable and necessary.
2. What Codes of Practice, training, policy and
guidance will be issued to senior police officers about the operation
of their discretion?
3. Is it proposed that the ACPO manual on
Keeping the Peace will be updated to provide guidance
to police officers in advance of these powers coming into force?
The Secretary of State is granted a wide order making
power to specify requirements that must be met to maintain access
to and from the Palace of Westminster or a specified building
in secondary legislation, such as the number or location of entrances
to be kept open or access routes around Parliament.
4. Why has the Government chosen to set out the
requirements which may be specified by the Secretary of State
for the purposes of maintaining access to and from Parliament
or a specified building in a non-exhaustive rather than an exhaustive
5. Why does the Bill enable the Secretary of State
to do this by regulation, rather than set out those requirements
on the face of the Bill, so as to ensure legal certainty?
The Bill also vaguely states that "an order
under this section may confer discretions on the senior police
6. Please clarify precisely what discretions the
Government envisages will or may be conferred on senior police
officers by paragraphs 14ZA(5) and 14ZC(8).
Although all conditions which may be imposed are
limited to those which maintain access to and from the Palace
of Westminster or a specified building, a distinction is drawn
in the Bill between public processions and public assemblies.
In relation to public processions, a non-exhaustive list
of conditions which may be imposed is set out in the Bill. These
include conditions regarding the route of procession or prohibiting
it from entering a public place. In relation to public assemblies,
however, the Bill sets out an exhaustive list of conditions which
may be imposed, namely, the place, maximum duration and maximum
number of persons at the assembly. Schedule 4 also includes a
new provision which effectively applies the provisions on public
assemblies and processions around Parliament to any building outside
of the Palace of Westminster which is used to hold meetings of
the House or any of its Committees ("a specified building").
The human rights part of the Explanatory Notes state
that "insofar as the conditions may only pertain to the place
of the demonstration, its maximum duration and the maximum number
of persons who may constitute it, they are proportionate in respect
of legitimate aims".
However, these conditions only relate to public assemblies (i.e.
static demonstrations), not to public processions, where no limit
on the conditions which may be imposed is set out in the Bill,
save that they must meet the aim of maintaining access to and
from Parliament or a specified building. The Explanatory Notes
suggest that the directions which can be made under section 14ZA
are much more limited than those under the SOCPA regime as they
only relate to one aim and therefore:
the Government considers that this is a legitimate
aim, namely the proper and secure functioning of Parliament. Since
directions are limited in scope and in geographical effect (section
14ZB), the Government's view is that they are a proportionate
interference with individual rights.
7. Please explain why the Bill does not set out
the conditions which may be imposed on a public procession in
an exhaustive list.
(2) Ratification of treaties
As you will be aware, the Committee has committed
itself to examining international treaties with human rights implications
before their ratification, in order to increase parliamentary
understanding and involvement in the ratification process.
The Committee is therefore likely to welcome in principle the
implementation of the Government's proposal to put parliamentary
involvement in the ratification of treaties on a statutory footing.
Although the enhanced opportunity for parliamentary scrutiny of
treaties is likely to be welcomed, the Committee has a number
of question about the detail of the proposed new statutory regime.
8. Will the Government amend the Bill to require
that the Explanatory Memorandum accompanying the treaty should
be laid at the same time as the treaty itself,
so as to facilitate the proper review of the treaty during the
21 day period?
9. Will the Government undertake to notify relevant
Committees when the treaty has been laid, to enable those Committees
to embark early on their scrutiny?
10. (a) Why should the House of Lords' powers
in relation to treaties be any less than those of the House of
Commons? (b) Is there any constitutional convention which suggests
that the Lords' powers in relation to matters of this kind are
to be any less than those of the Commons? (c) Was any such distinction
ever recognised in practice under the Ponsonby Rule?
11. Should the Minister be required to lay a statement
explaining why any request for an extension of the 21 day sitting
period has been refused?
12. (a) What is the justification for including
a power for a Minister to disapply the new statutory regime in
(b) What sort of exception does the Government have in mind? (c)
Are there any examples of treaties which have been ratified without
being laid before Parliament (since the advent of the Ponsonby
Rule in 1924)?
(3) The right to a fair hearing and access
to court in the determination of civil rights
The Bill contains a number of different provisions
which engage, or may engage, the right in Article 6(1) ECHR to
a fair hearing in the determination of civil rights, which has
been interpreted by the European Court of Human Rights to include
a right of access to a court.
(a) Removal of Civil Service Commissioners
The Bill provides
for the removal from office of the Civil Service Commissioners,
including the First Commissioner, by HM the Queen on the recommendation
of the Minister if one of four specified conditions is met.
The Bill does not specify the procedure to be adopted in removing
the First Commissioner or Commissioner from office. The Explanatory
Notes to the Bill, however, state that "it is envisaged that
the procedure will be specified in the terms of appointment."
The Government accepts, rightly, that the removal
from office of the First Commissioner or Commissioner is likely
to engage Article 6(1) ECHR as it is likely to constitute the
determination of a civil right within the meaning of that Article.
However, it considers that the combination of the procedure which
will be set out in the terms of appointment, and the fact that
the decision of the Minister recommending removal would be amenable
to judicial review, is sufficient to satisfy the requirements
of Article 6(1) ECHR.
As the Committee has repeatedly pointed out, 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,
the Committee cannot assess the provision's compatibility with
Article 6(1) ECHR unless it knows exactly what those procedures
13. Will the Government agree to amend the Bill
so as to specify the detail of the procedure to be used in removing
the First Commissioner or Commissioners from office; or at the
very least publish the detail of the procedure which it intends
to set out in the Commissioners' terms of appointment?
In the absence of this information the Committee
cannot advise Parliament about the degree of risk that the Bill
may lead to the removal of Commissioners in breach of Article
(b) Complaints about breaches of the Codes of
Conduct by civil servants
The Bill provides for civil servants to complain
to the Civil Service Commission about breaches of the codes of
conduct for the civil service and for the diplomatic service.
The procedures for the making of such complaints and for the investigation
and consideration of them by the Commission are not specified
by the Bill, but are left to the Commission itself to determine.
After considering a complaint, the Commission may make recommendations
about how the matter should be resolved.
The Government's view is that the consideration of
breaches of the codes of conduct by the Commission does not engage
the right to a fair hearing and access to a court in Article 6(1)
ECHR for two reasons. First, it does not involve the determination
of a "civil right" within the meaning of that Article,
because "the Codes will set out the standards of behaviour
expected of civil servants based on the core values of the Civil
Service rather than create any civil rights."
Second, the Commission's role after consideration of a complaint
is limited to making recommendations and is therefore not likely
to be considered as being "determinative" of any civil
rights even if such rights were in play.
Even if the Commission's consideration of breaches
of the codes constituted the determination of a civil right within
Article 6(1) ECHR, in the Government's view the requirements of
that Article would be satisfied anyway, because of the combination
of the procedures which the Commission will determine for the
investigation and consideration of complaints, and the fact that
the act of the Commission in making a recommendation would be
amenable to judicial review.
The Committee is scrutinising carefully the Government's
analysis of the Article 6(1) compatibility of the provisions in
the Bill concerning complaints about breaches of the codes. In
particular it is considering whether the Commission's investigation
and consideration of at least some complaints are capable of affecting
civil rights; whether it is realistic to suggest that the Commission
does not "determine" any civil rights; and whether the
combination of the procedures before the Commission and the possibility
of judicial review can be said to satisfy the requirements of
Article 6(1) ECHR when the Committee has no information about
what those procedures will be.
14. Would civil rights be in play in cases where
the complaints about a breach of the code by a civil servant involve
allegations of such serious misconduct that an adverse recommendation
by the Commission will have serious consequences for that individual's
reputation and inevitably affect their employment status or future
15. Do you agree that the Commission's decision
that the code of conduct has been breached in such cases would
in practice be determinative of the civil servants' civil rights,
whether or not the Commission's recommendation about how the matter
should be resolved is followed?
16. Will the Government prescribe, either in the
Bill or in regulations, the minimum content of the procedures
for the investigation and consideration of complaints by the Commission
in order to ensure that the civil servant who is the subject of
the complaint receives a fair hearing, including access to court?
(c) Complaints about selections for appointment
to the Civil Service
The Bill also provides
for a person to complain to the Civil Service Commission if they
have reason to believe that a selection for an appointment breached
that selections be made on merit on the basis of a fair and open
competition. As with the provision concerning complaints to the
Commission about breaches of the codes, the Bill does not specify
the procedures for the investigation and consideration of such
complaints by the Commission: this is left to the Commission itself
The Government makes essentially the same argument
here as in relation to complaints about breaches of the codes.
First, there is no "civil right" in play because "selections
for appointment do not amount to a 'civil right'." Second,
even if such rights were in play, there is no "determination"
of them because the Commission's role is limited to making recommendations
after considering the complaint.
And third, the requirements of Article 6(1) would be satisfied
in any event by the combination of the procedures before the Commission
and the possibility of judicial review of the Commission's decisions.
17. Is a decision that a selection for appointment
has not been made on merit capable of affecting other civil rights,
such as the job of the person who was appointed, or, in the case
of the person not appointed, the right not to be unlawfully discriminated
against in access to employment or promotion?
18. Do you agree that the Commission's decision
that a selection for appointment breached the merit principle
would in practice be determinative of the civil servants' civil
rights, whether or not the Commission's recommendation about how
the matter should be resolved is followed?
19. Will the Government prescribe, either in the
Bill or in regulations, the minimum content of the procedures
for the investigation and consideration of complaints by the Commission
in order to ensure that the civil servants affected receive a
fair hearing, including access to court?
The Government's assertion in this Part of the Bill,
that Article 6(1) does not apply in relation to complaints to
the Civil Service Commission, appears to be based on the assumption
that disputes relating to the recruitment, careers and termination
of civil servants are as a general rule outside the scope of Article
6(1) ECHR. The Committee is concerned that such a view about the
general non-applicability of Article 6(1) to civil servants does
not appear to take account of recent developments in ECHR jurisprudence,
in particular the case of Vilho Eskelinen v Finland, which
clearly starts from a presumption that Article 6(1) applies to
the employment of civil servants.
20. What account has been taken of the judgment
of the European Court of Human Rights in Vilho Eskelinenv
which clearly starts from a presumption that Article 6(1) applies
to the employment of civil servants?
21. Why, in the light of that case, does the presumption
that Article 6(1) applies to disputes concerning the employment
of civil servants not apply to the mechanisms in the Bill for
resolving disputes through the Civil Service Commission?
(d) Removal, expulsion and suspension of members
of the House of Lords
The Bill provides for the removal of members of the
House of Lords if any of a number of specified conditions are
met, and enables
the House of Lords to discipline its members through either expulsion
Members of the House of Lords have the common law right to be
treated fairly. This was recently explicitly recognised and put
into practice in the investigation by the Sub-Committee on Members'
Interests into the allegations against four members alleged to
have agreed to accept money in exchange for moving amendments
However, there is nothing in the Bill to require such fair procedures.
During the recent passage of the Parliamentary Standards Bill,
the Government agreed to an amendment tabled in the House of Lords
designed to ensure that the procedures to be laid down for the
conduct of investigations into MPs must be "fair".
22. What would be the Government's view of an
amendment to this Bill to make clear that the procedures for investigating
allegations of misconduct must be fair to those being investigated?
(e) Removal of Comptroller and Auditor General
and of Chair of National Audit Office
The Bill provides for the removal from office of
both the Comptroller and Auditor General
and the chair of the National Audit Office
by HM the Queen on an Address of each House of Parliament.
In both cases the Government appears to accept that
the right to a fair hearing in Article 6(1) ECHR, as well as the
common law right to procedural fairness, would apply.
However, the Bill is silent on the procedure which should be used
prior to such removal, and the Government says that in the event
of either provision being used, Parliament would need to devise
a procedure which offers appropriate safeguards to ensure that
the removal from office is carried out fairly and in accordance
with Article 6(1). Establishing the details of such a fair procedure,
the Government argues, is a properly a matter for Parliament.
In the absence of any information as to what procedure
would be followed prior to any decision to remove, the Committee
cannot advise Parliament as to whether these provisions are compatible
with the requirements of Article 6(1) ECHR and of common law fairness.
23. Why does the Bill does not prescribe at least
a minimum of procedural safeguards to ensure that the office holders
receive a fair hearing and why is there no provision for a right
of access to a court?
(4) Nationality discrimination in Crown employment
The provisions in Part 1 of the Bill have been preceded
by a long period of public and parliamentary debate about the
desirability of comprehensive legislation for the Civil Service,
and are intended to implement the Government's proposal to "enshrine
the core principles and values of the Civil Service in law."
They make no provision, however, to deal with the widely recognised
problem of nationality discrimination in the civil service, which
derive from 300 year old restrictions on the employment of non-UK
nationals in civil capacities under the Crown.
As the law currently stands, 95% of civil service
posts in the UK are available to Commonwealth, Irish or EEA nationals
but other non-UK nationals are almost entirely excluded from those
posts, even if there is no good operational reason for that. As
a result, many members of long-standing minority communities in
the UK are entirely banned from Government employment, no matter
how well qualified they are, and even if they are married to a
Such nationality discrimination in access to government
employment engages a number of the UK's human rights obligations.
By Article 6 of the International Covenant on Economic, Social
and Cultural Rights, for example, the UK recognises the right
to work, including the right of everyone to the opportunity to
gain his living by work which he freely chooses or accepts, and
by Article 2 the UK has undertaken to guarantee the rights in
the Covenant without discrimination of any kind as to national
origin. The UN Committee on Economic and Social Rights
and the UN Committee for the Elimination of Racial Discrimination
have both commented on the continuing discrimination faced by
ethnic minorities in employment in the UK. The UK is also a party
to an ILO Convention, the Discrimination (Employment and Occupation)
which defines discrimination to include exclusion based on nationality,
and by which the UK has undertaken to declare and pursue a national
policy designed to promote equality of opportunity and treatment
in respect of employment and occupation, with a view to eliminating
any discrimination in respect thereof,
and in particular has undertaken to pursue that policy in respect
of employment under the direct control of a national authority.
On the face of it, the Committee has difficulty seeing
how the continuation of such a wide restriction on the employment
of non-UK nationals in the civil service can be compatible with
those binding undertakings.
24. Please explain how the present law is compatible
with these international human rights obligations.
25. Why is the problem of unjustified nationality
discrimination in access to Crown employment not dealt with in
Part 1 of this Bill?
(5)The meaning of "public function"
in the Human Rights Act
The Government has committed itself to bringing forward
legislation to fill the gap in the legal protection for human
rights as a result of the decision of the House of Lords in the
YL case. That gap was filled as far as the care home sector
is concerned by the Government's amendments to the Health and
Social Care Bill. The Committee welcomed those amendments but
pointed out that it left a significant gap in legal protection
in the many other sectors of the public services in which the
issue also arises. When pressed by the Committee on this question,
Ministers have told the JCHR that the Government intends to consult
on the issue as part of its wider consultation on a "Bill
of Rights and Responsibilities". However, the issue barely
features in the Government's Green Paper on that subject, nor
is it part of the Government's ongoing consultation on that subject,
nor is there any provision in this Bill. The Committee
will shortly return to this issue in its forthcoming Report
on Business and Human Rights.
26. Please explain when the Government proposes
to fill the continuing gap in the legal protection for human rights
left by the House of Lords decision in the YL case,
in public service sectors other than the care home sector, if
the opportunity is not taken to do so in this Bill?
(6) The Intelligence and Security Committee
In The Governance of Britain Green Paper,
the Government acknowledged that there are concerns about the
transparency of the process by which the Intelligence and Security
Committee is appointed, operates and reports. The Government committed
to considering how the ISC's arrangements could be amended to
bring it as far as possible into line with select committees,
while maintaining the confidentiality of information where genuinely
necessary in the interests of national security.
In the Government's White Paper, The Governance
of Britain - Constitutional Renewal, the Government said that
it had concluded that it can make significant changes immediately
to improve the transparency and effectiveness of the Committee's
operation "in advance of any future legislation the Government
The Committee notes the changes that have been made to the way
in which the members of the ISC are appointed but further proposals
to improve the transparency of the ISC are absent from the Bill.
As you will be aware, the JCHR has recently expressed its concern
about the adequacy of the parliamentary mechanisms for oversight
of the intelligence and security services in the context of current
allegations about the UK's complicity in torture.
27. 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,
please indicate what further changes to the ISC are currently
under consideration to address this problem?
(7) Royal Marriages and Succession to the Crown
The Royal Marriages and Succession to the Crown (Prevention
of Discrimination) Bill, a Private Member's Bill introduced by
Dr. Evan Harris MP, a member of the JCHR, would remove discrimination
against Catholics in relation to royal marriages and discrimination
against women in relation to the succession to the throne. During
the Second Reading debate on the Bill on 27 March 2009, you accepted
that the current law is unjustifiably discriminatory against women
and Catholics and indicated that the matter would now be given
"a higher priority" as a result of the Private Member's
Bill, but you opposed the Bill on the basis that the matter was
complex, would require consultation with Commonwealth Governments
and requires more careful thinking about the implications for
the position of the Church of England as the established church.
Debate on the Second Reading of the Bill was adjourned and is
not now expected to resume.
28. Please explain precisely what the Government
has done since 27 March 2009 to fulfil its commitment that it
would now give "a higher priority" to ending the current
discrimination against Catholics in royal marriages and against
women in succession to the throne?
29. Now that the Government has had more than
6 months to consider the consequences for the established Church
if the discrimination against Catholics in royal marriages were
removed, what does it consider those consequences to be?
30. Please specify the precise timetable which
the Government proposes for the removal of what it accepts to
be unjustified discrimination against women and Catholics in the
law governing royal marriages and the succession.
118 EN, para. 451. Back
EN, para. 454. Back
See e.g. Reports on Protocol 14, the Council of Europe Convention
on the Prevention of Terrorism, and the UN Convention on the Rights
of Person with Disabilities. Back
Clause 21(1). Back
Clause 23. Back
Schedule 1, para. 5(3). Back
Ibid., para. 5(4)(a)-(d). Back
EN para. 435. Back
Clause 9(2) and (3).A civil servant may complain to the Commission
if they have reason to believe that they are being, or have been,
required to act in a way that conflicts with the relevant code
of conduct, or that another civil servant is acting, or has acted,
in a way that conflicts with the code. Back
Clause 9(5)(a). Back
Clause 9(5)(b). Back
EN para. 438. Back
EN para. 439. Back
EN para. 440. Back
Clause 13(2) and (3). Back
In clause 10(2). Back
Clause 13(3)(b). Back
EN para. 441. Back
EN para. 442. Back
(2007) 45 EHRR 43. Back
Clause 27 and Schedule 3, Part 1. Back
Clause 28. Back
See Second Report from the Committee for Privileges 2008-09, Annex
at paras 11-27 (describing the procedural safeguards accorded
to those being investigated). Back
HL Deb 20 July 2009 cols 1439-41. Back
Clause 41(2). Back
Schedule 6, para. 10(1). Back
EN paras 473 and 477. Back
See e.g. the draft Civil Service Bill published by the House of
Commons Public Administration Select Committee in 2003; the Government's
consultation paper on a draft Civil Service Bill in 2004 (Cm 6373);
and the report of the Public Administration Committee on the draft
Constitutional Renewal Bill (Tenth Report of 2007-08, HC 499). Back
As stated in The Governance of Britain Green Paper. Back
See e.g. UNCESCR Concluding Observations 2002 at para. 14. Back
See e.g. UNCERD Concluding Observations 2003 at para. 23 (CERD/63/CO/11). Back
ILO Convention C111, 363 UNTS 31. Back
Article 1(1)(a). Back
Article 2. Back
Article 3. Back
Cm 7342-I (March 2008) at para. 236. Back
Twenty-third Report of Session 2008-09, Allegations of UK Complicity
in Torture, HL Paper 152/HC 230, paras 57-66. Back