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


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 human rights.

(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rights compatibility of the provisions in the Serious Organised Crime and Police Act 2005 ("SOCPA") when they were originally enacted and in its recent report on policing and protest called for a fundamental reform of the legal regime governing protest around Parliament.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 list?

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 officer".

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".[118] 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.[119]

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.[120] 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,[121] 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 exceptional cases?[122] (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[123] 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.[124] 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."[125]

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.[126] 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 are.

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 6(1) ECHR.

(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.[127] 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.[128] After considering a complaint, the Commission may make recommendations about how the matter should be resolved.[129]

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."[130] 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.[131]

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.[132]

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 prospects?

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[133] for a person to complain to the Civil Service Commission if they have reason to believe that a selection for an appointment breached the requirement[134] 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 to determine.[135]

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.[136] 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.[137]

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 Finland, [138] 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,[139] and enables the House of Lords to discipline its members through either expulsion or suspension.[140] 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 to legislation.[141] 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".[142]

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[143] and the chair of the National Audit Office[144] 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.[145] 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,[146] and are intended to implement the Government's proposal to "enshrine the core principles and values of the Civil Service in law."[147] 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 UK national.

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[148] and the UN Committee for the Elimination of Racial Discrimination[149] 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) Convention 1958,[150] which defines discrimination to include exclusion based on nationality,[151] 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,[152] and in particular has undertaken to pursue that policy in respect of employment under the direct control of a national authority.[153]

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 brings forward."[154] 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.[155]

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

119   EN, para. 454. Back

120   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

121   Clause 21(1). Back

122   Clause 23. Back

123   Schedule 1, para. 5(3). Back

124   Ibid., para. 5(4)(a)-(d). Back

125   EN para. 435. Back

126   Ibid.. Back

127   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

128   Clause 9(5)(a). Back

129   Clause 9(5)(b). Back

130   EN para. 438. Back

131   EN para. 439. Back

132   EN para. 440. Back

133   Clause 13(2) and (3). Back

134   In clause 10(2). Back

135   Clause 13(3)(b). Back

136   EN para. 441. Back

137   EN para. 442. Back

138   (2007) 45 EHRR 43. Back

139   Clause 27 and Schedule 3, Part 1. Back

140   Clause 28. Back

141   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

142   HL Deb 20 July 2009 cols 1439-41. Back

143   Clause 41(2). Back

144   Schedule 6, para. 10(1). Back

145   EN paras 473 and 477. Back

146   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

147   As stated in The Governance of Britain Green Paper. Back

148   See e.g. UNCESCR Concluding Observations 2002 at para. 14. Back

149   See e.g. UNCERD Concluding Observations 2003 at para. 23 (CERD/63/CO/11). Back

150   ILO Convention C111, 363 UNTS 31. Back

151   Article 1(1)(a). Back

152   Article 2. Back

153   Article 3. Back

154   Cm 7342-I (March 2008) at para. 236. Back

155   Twenty-third Report of Session 2008-09, Allegations of UK Complicity in Torture, HL Paper 152/HC 230, paras 57-66. Back


 
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