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


Letter to the Chair of the Committee from Rt Hon Michael Wills MP, Minister for Human Rights, dated 17 November 2009

Constitutional Reform and Governance Bill

Thank you for your letter dated 26 October 2009, to Jack Straw. I am responding as the Bill Minister. I am very grateful for the Joint Committee on Human Rights ("JCHR") considering this Bill and look forward to its report.

This letter considers the questions which your letter asks in turn. It refers to the clause and Schedule numbering of the Bill as introduced on 20 July.

(1) Protest around Parliament

The letter begins by suggesting that the JCHR is likely to welcome the repeal of sections 132 to 138 of the Serious Organised Crime and Police Act 2005, but has questions about the details of the replacement provisions. The letter expresses concerns that the provisions may be, in parts, widely drafted and give rise to legal uncertainty.

It may assist the JCHR if I explain that Schedule 4 to the Bill builds on the regime concerning public processions and public assemblies that exists in Part 2 of the Public Order Act 1986 (processions and assemblies). The regime varies depending on whether the demonstration is a public procession or a public assembly.

i.  Concerning public processions, section 12 of that Act permits a senior police officer to give directions imposing conditions as are necessary to prevent "disorder, damage, disruption or intimidation". Those conditions may include "conditions as to the route of the procession or prohibiting it from entering any public place specified in the directions".

ii.  Concerning public assemblies, section 14 of that Act permits a senior police office to give directions imposing conditions as are necessary to prevent "disorder, damage, disruption or intimidation". The conditions must be conditions as to the place at which the assembly may be held, its maximum duration or the maximum number of persons who may constitute it.

The JCHR may wish to note the limited additional aims that Schedule 4 to the Bill serves within this existing public order framework. In essence, Schedule 4 adds a further public order objective that is to be achieved in addition to the prevention of "disorder, damage, disruption or intimidation" - namely: to maintain access to and from the Palace of Westminster. Otherwise, Schedule 4 repeats the language of Part 2 of the Public Order Act in relation to the conditions that may be imposed. This involves a non-exhaustive list of possible conditions for public processions and an exhaustive list of possible conditions for public assemblies.

In this, the Government considers that it is acting in accordance with the recommendations of the JCHR, see paragraph 137 of its report Demonstrating respect for rights? A human rights approach to policing protest.[156] There, the JCHR recommended that protest around Parliament should be governed by the Public Order Act regime and that that Act "should be amended to enable conditions to be placed on static protests where they seriously impede, or it is likely that they will seriously impede, access to Parliament". Of course, Schedule 4 would modify the Public Order Act in relation to both processions and assemblies, and to this extent goes further than that JCHR recommendation. However, the Government considers that leaving public processions untouched by Schedule 4 would leave a serious gap in the law and provide an obvious route for protestors to avoid the modified regime.

Given that the Government is merely importing the existing public order framework for the particular purpose of maintaining access to Parliament and following a JCHR recommendation, it does not consider that Schedule 4 is widely drafted or would give rise to any legal uncertainty.

Question 1: Please provide examples of the types of conditions which the Government considers will be reasonable and necessary [for the purpose of Schedule 4].

As already noted, the drafting in Schedule 4 concerning the types of conditions that can be imposed is the same as that which appears concerning conditions on public processions and assemblies in Part 2 of the Public Order Act. For this reason, the Government envisages that the types of conditions that will be reasonable and necessary will be the same types of conditions that can be imposed on processions and assemblies in the rest of the country under the Public Order Act. These conditions would have to be necessary for ensuring that the specified requirements in relation to access are met.

For example, the Government considers that it may be reasonable and necessary for police to require demonstrators to keep a path clear so that people can access certain entrance points to Parliament. This might be to enable pedestrians to access Parliament but also to enable vehicles to access Parliament. This could involve a re-routing of a procession or a re-positioning of an assembly should numbers be large enough to obstruct access to Parliament.

Question 2: What Codes of Practice, training, policy and guidance will be issued to senior police officers about the operation of their discretion?

We intend to issue a Home Office Circular to the Metropolitan Police and others which will contain guidance on the exercise of the new powers. It is important that the police, Parliamentarians and those wishing to demonstrate around Parliament are clear about what maintaining access to and from the Palace of Westminster means. We shall set out in this guidance the considerations which the police will need to take into account before giving directions which are reasonably believed to be necessary to maintain access to the Palace of Westminster.

The Home Office is already in discussions with the Metropolitan Police about these new powers. Although training will ultimately be a matter for them, the Home Office is actively involved in ensuring that the powers are understood and is happy to assist in widening this understanding.

Question 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 manual on Keeping the Peace produced by the Association of Chief Police Officers ("ACPO") is currently being revised and is unlikely to be published until later next year. Given that the exercise of the new powers will be undertaken primarily by officers from the Metropolitan Police, we intend to provide separate specific guidance for the Metropolitan Police on the new powers by way of the Home Office Circular mentioned above. We will consult ACPO on the need to flag the new provisions in the current revision of the manual on Keeping the Peace.

Question 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?

Question 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?

I deal with these two questions together. These questions relate to the specification of the requirements that must be met in relation to maintaining access to and from the Palace of Westminster. New section 14ZA (and equivalent in new section 14ZC) would enable those requirements to be set out in secondary legislation. That legislation could include the entrances which are to be kept open and the access routes for pedestrians and vehicles.

The Government has adopted this approach to ensure that we retain the flexibility necessary to ensure that the regime we put in place can adapt to the reality of changing circumstances. If the requirement to keep entrance A open is put in primary legislation, that would require further primary legislation to amend which entrance is specified. Such an amendment might be required quickly if, for example, entrance A was out of operation for any reason. Rather than try to cater for every possible scenario that may arise on the face of the Bill, the Government has chosen to set out the detailed requirements in secondary legislation.

Equally, the Government considers that this approach actually enhances the legal certainty behind these provisions. It would have been an option, in view of the need for some flexibility, for Schedule 4 simply to provide police with a general public order objective to be met (for example, ensure access to and from Parliament) without further qualification. This, in fact, was the recommendation of the JCHR in its report Demonstrating respect for rights? A human rights approach to policing protest.[157] However, the Government considers that the order-making power will enable clear and specific requirements to be set out in legislation.

Although the list of matters that may be included in the order specifying requirements for access is a non-exhaustive list, the Government considers that this is reasonable given that the requirements to be specified are subject to the limitation that they must relate to maintaining access to and from the Palace of Westminster (or specified building in new section 14ZC).

In order to enhance the scrutiny of this order-making power, the Government intends to make available to the committee of the whole House a draft version of the order when these provisions are reached.

Question 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).

The Government envisages that the requirements may be to keep at least one entrance open for pedestrian and vehicle access to the Palace of Westminster at all times. It is not necessarily practical to say that one particular entrance is the "open entrance" at all times and it may be necessary for the senior police officer to consider which entrance, in all the circumstances of the moment, is the most practical one to keep open. It is this type of discretion that the Government envisages will or may be conferred on senior police officers.

Additionally, each demonstration will throw up a range of different factors in terms of the vulnerability of individuals or character of the demonstration. Clearly police officers need to use discretion in enforcing legislation in order to strike the appropriate balance between securing access, facilitating protest, protecting life and keeping the peace.

The discretion that could be conferred on the senior police officer would be exercised in the context of the other limitations on the order-making power. In particular, the Order would have to relate to the maintaining of access to and from the Palace of Westminster.

Question 7: Please explain why the Bill does not set out the conditions which may be imposed on a public procession in an exhaustive list.

As discussed above, the current Public Order Act regime does not set out the conditions which may be imposed on a public procession in an exhaustive list, whereas there is an exhaustive list of conditions that can be imposed on public assemblies. Accordingly, Schedule 4 simply reflects the existing position under the Public Order Act.

The Government considers that processions do raise different issues compared to static assemblies and therefore that it is harder to come up with a definitive list of conditions which will cover all eventualities with a moving group. The difference in treatment also reflects the desirability of having tighter controls on the conditions that can be placed on public assemblies compared to public processions. This distinction is reflected in other parts of Part 2 of the Public Order Act. For example, public processions may be prohibited, section 13. There is no equivalent to this section in relation to public assemblies.

On this basis the Government decided to mirror the approach in the rest of the country as we could see no reason in this context to make the regime around Parliament different from the regime elsewhere in the country.

(2) Ratification of treaties

Question 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?

There are no plans to amend the Bill to require the Government to lay an Explanatory Memorandum at the same time as laying a copy of the treaty. It is the Government's intention to continue the practice, established in 1997, that an Explanatory Memorandum should accompany every treaty laid under the Ponsonby Rule. This means that each treaty laid under clause 21 will also have a memorandum laid with it.

The Government does not consider it necessary to convert this practice into a statutory requirement. The Government made a clear commitment in 1997 and has adhered to it consistently. It is and will continue to be in the Government's own interest to explain to Parliament its reasons for proposing to ratify a treaty. Given the legal effects that the Bill will confer on a vote by either House against ratification, it will be even more important in the future for Government to provide this information to Parliament to ensure that its case is set out clearly. The Explanatory Memorandum is one particular mechanism for providing background to Parliament. It would be preferable not to set this in stone in a way that might inhibit the evolution of new and better ways of achieving the same goal in future.

Question 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?

The Government is happy to reiterate its undertaking, first given in 2000 to the House of Commons Procedure Committee,[158] that copies of all treaties laid will also be sent to the relevant select committee at the same time. This is now established practice. As you letter notes, the Government has made a particular commitment to facilitate the involvement of the JCHR where a treaty raises significant human rights issues.[159]

Question 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?

The House of Lords has a vital role to play in providing expert advice on treaties, but the legislation should reflect the different roles the Commons and Lords play in the parliamentary process. In particular, the current drafting reflects the primacy of the House of Commons as the chamber which is democratically elected. The Government considers it inappropriate for the House of Lords to be able to a veto ratification of a treaty where the House of Commons does not wish to exercise such a veto. The requirement in the Bill for the Government to lay a statement before both Houses if it still wished to proceed with ratification of a treaty after the Lords had voted against it would force the Government to reflect further on its position, address the views of the Lords, and explain its proposed actions.

This approach is consistent with the current balance of power between the two Houses of Parliament as a matter both of law and convention. For example:[160]

  The Parliament Act 1911 provides that money bills may receive Royal Assent without approval of the House of Lords. The House of Lords may also delay, but not ultimately veto other public bills which are first introduced in the Commons, other than if they extend the life of a Parliament.

iii.  The Salisbury-Addison convention provides that in the House of Lords, a manifesto Bill is, amongst other things, accorded a second reading and is not subject to "wrecking amendments".

iv.  If the Commons disagree to Lords amendments on the grounds of financial privilege, by convention the House of Lords should not send back amendments which invite the same response.

Copies of Command Papers are laid before both Houses under the Ponsonby Rule, and either House can debate and vote on a treaty. But since the Ponsonby Rule does not provide for a legally binding vote by either House the question of a legal distinction between the powers of the Commons and Lords does not arise. Under the present system, the response of the Government to a negative vote in either House is a matter for political judgement.

This matter was considered by the Joint Committee on the Draft Constitutional Renewal Bill. That committee agreed with the Government's proposals as it concerned the balance of power between the two Houses, at least while the House of Lords retains its current composition.[161]

Question 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?

The Government does not consider that there should be a statutory requirement for a Minister to lay a statement in circumstances where a request for an extension of time has been refused. According to current practice based upon the Government's undertaking given in 2000, requests for an extension of time come from a select committee.[162] It is likely that when a Minister lays a statement under clause 22 to extend the period, he or she will be doing so following such a request from a select committee. Should the Minister decide to refuse the select committee's request in whole or in part or discuss the matter further with the committee, it would be open to the select committee to bring the correspondence to Parliament's attention.

Question 12: (a) What is the justification for including a power for a Minister to disapply the new statutory regime in exceptional cases? (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)?

Clause 23 reflects long-established practice whereby, in exceptional cases where it is not possible to complete the usual laying procedure, alternative means to consult and inform Parliament may be used. The use of such procedures has in fact been very rare. Examples of alternative procedures that have been used include a statement during a debate, a written ministerial statement and, on one occasion in 1942, the (rapid) passage of a Bill. Where Parliament is in recess, clearly different methods have to be used such as a letter to or a meeting with the Chair of the relevant select committee or the Leaders of the Opposition. The appropriate steps will of course vary according to the subject matter of the treaty, the level of parliamentary interest and the circumstances of the urgency.

The Government has no intention of invoking exceptional procedures in any kinds of situation for which it would not currently consider alternative procedures under the Ponsonby Rule. But trying to specify precise conditions for the use of this exceptional procedure in legislation would be unworkable. It is impossible to predict in advance what those circumstances might be since by their very nature they tend to arise through exceptional combinations of a range of factors.

There are very few examples of treaties that have been ratified without being laid before Parliament in some form since the Ponsonby Rule began in 1924 - although consistent adherence to the Rule only began in 1929. The Consultation Document on War Powers and Treaties (published on 25 October 2007) gives examples to illustrate the variety of alternative procedures that have been used but only one of these, the Mutual Defence Agreement with the United States in 1950, was signed and accepted without having first been laid before Parliament; on this occasion the Prime Minister approached the Leaders of the Opposition and the Liberal party and showed them the text of the Agreement beforehand. Two other examples (Muscat Commercial Treaty 1939 and the Agreement for the Admission of Germany to the European Danube Commission 1939) where the texts were not laid prior to ratification date from before the Second World War.

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

Question 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?

The Bill provides limited grounds on which the First Commissioner or a Commissioner may be removed by the Minister for the Civil Service. Paragraph 5(4) of Schedule 1 to the Bill provides that the conditions that must be met are:

a)  the person is absent from three successive meetings of the Commission without the Commission's approval;

b)  the person is convicted of an offence;

c)   the person becomes bankrupt; or

d)  the person is unfit or unable to carry out the functions of the office.

We consider that the removal of the First Commissioner or a Commissioner is likely to engage Article 6(1) as it is likely to constitute the determination of a civil right within Article 6(1) but that the combination of the procedure to be adopted in removal and the possibility of judicial review of the decision of the Minister would satisfy the requirements of Article 6.

It is not considered necessary to determine the procedure to be used in removing the First Commissioner or Commissioners from office on the face of the Bill. The process that is adopted must be fair in the context of the conditions that must be met.

Question 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?

Question 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?

As set out in the Explanatory Notes to the Bill we do not consider that the Commission's consideration of breaches of the codes engages Article 6(1).

The Commission's role is to consider complaints that a civil servant is being required to act in a way which conflicts with the codes or where they believe that another civil servant has acted in a way which conflicts with the codes. The codes will not create any civil rights but rather set out the standards of behaviour expected of civil servants based on the core values of the civil service. After considering a complaint the Commission may make recommendations about how the matter should be resolved. Consequently, the Commission's actions will not be decisive of a civil right.

There is clear authority for this proposition in the judgment of the Strasbourg court in Al-Fayed v United Kingdom (1994) 18 EHRR 393. That case concerned a report by two Government investigators which was published and which concluded that the applicants had misrepresented their origins, wealth and business resources. The court held that the mere fact that an official investigation had made findings detrimental to the applicants did not bring that investigation within the scope of Article 6, because the report was not dispositive of any legal right or obligation.

The letter raises the question of the effect of a recommendation on an individual civil servant's reputation. As noted in the Explanatory Notes, the Commission's recommendations are likely to be made confidentially to the department and civil servants concerned. If a breach of the codes was found and a recommendation made on how the matter should be resolved the department would also have to comply with relevant employment law in determining what, if any, action to take against a civil servant. Further - in common with what they will be required to do under paragraph 17 of Schedule 1 to the Bill - the Commission currently report the outcome of all settled appeals in their annual report. The name of the department and the name of the civil servant who brought the appeal are not given in that report. That report contains summary information as to the nature of complaints.

We do not consider that Article 6(1) is engaged in the circumstances referred to by the JCHR in Questions 14 and 15.

Question 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?

The Bill requires the Commission to determine procedures for the making of complaints and for the investigation and consideration of complaints by the Commission (clause 9(5)(a)). Notwithstanding the fact that the Commission's consideration of breaches of the codes does not engage Article 6(1) such procedures must be fair. Furthermore, the act of the Commission in making a recommendation would be amenable to judicial review. We do not consider it necessary for the procedures to be prescribed on the face of the Bill.

Question 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?

Question 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?

It is an Employment Tribunal, not the Commission, which would have jurisdiction to determine whether someone had been unlawfully discriminated against in applying for employment in, or promotion within, the civil service.

The Commission's role is to consider complaints that a selection for appointment breached the requirement that selections be made on merit on the basis of a fair and open competition. We do not consider that consideration of these complaints engages Article 6 as it does not involve the determination of a civil right. In particular, selections for appointment do not amount to a civil right. Further, the Commission's role after considering the complaint is limited to making recommendations.

Question 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?

I would refer the Committee to my response to Question 16.

Question 20: What account has been taken of the judgment of the European Court of Human Rights in Vilho Eskelinen v Finland, which clearly starts from a presumption that Article 6(1) applies to the employment of civil servants?

We do not consider Article 6(1) to be engaged in relation to the matters the Commissioners will consider, namely; complaints in relation to codes of conduct for civil servants and complaints that a selection for appointment has breached the requirement that selection be made on the basis of merit and fair and open competition. This is for the reasons set out above and in the Explanatory Notes.

The case of Eskelinen is not a material consideration behind these reasons. This is because that case concerned the question of whether Article 6 was applicable in a case involving a salary dispute involving certain civil servants. The judgment sets out the test for the circumstances in which a State can rely on a person's status as a civil servant in excluding the protection embodied in Article 6. The point being made by the Government about applicability of Article 6 in relation to the Commission's investigations is different. As noted above, it relates to the fact that the Commission is only making recommendations, rather than anything to do with the status of the civil servants concerned.

Question 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?

The judgment of the European Court of Human Rights in Eskelinen said there was no justification for the exclusion of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements of civil servants from the guarantees of Article 6(1). Again we do not consider that the matters considered by the Commission engage Article 6(1). The codes of conduct set out the standards of behaviour expected of civil servants based on the core values of the civil service rather than creating civil rights and selections for appointment do not amount to a civil right. Further, the powers of the Commission are limited to making recommendations. Consequently, the Commission's actions will not be determinative of a civil right.

Question 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?

The object of Part 3 of the Bill, where it concerns conduct and discipline matters, is to provide the House of Lords with powers that it lacks. The Government considers that the procedures put in place by the House of Lords concerning the disciplining of its members is properly a matter for that House. Specifying the procedure to be followed by a House of Parliament on the face of the legislation would interfere with the privilege of both Houses to set their own procedures.

Even so, the Government is confident that the current procedures in the House of Lords are fair. In particular, members are accorded the procedural safeguards mentioned in the Explanatory Notes, see paragraph 448. These include the fact that concerning investigations by the Sub-Committee on Lords' Interests into breaches of the code of conduct members of the House "have the right to safeguards as rigorous as those applied in the courts and professional disciplinary bodies". Members also have a right of appeal to the Committee for Privileges. The recent investigation of the Sub-Committee on Lords' Interests mentioned in your letter is a case in point. I think that members of the House of Lords regarded that investigation as according to the highest standards of fairness.

You mention that the Government agreed to an amendment to the Parliamentary Standards Bill to ensure that the procedures to be laid down for the conduct of investigations into MPs must be "fair". The crucial distinction in that case was that the procedures are those to be determined by the Independent Parliamentary Standards Authority ("the IPSA").[163] The IPSA is a statutory body. In the debate in the Lords on the Parliamentary Standards Bill, the Government emphasised - and indeed was pressed by many members to confirm - that the Bill did not impinge on or affect the internal procedures of the Houses of Parliament.[164]

Question 23: Why does the Bill not prescribe at least a minimum of procedural safeguards [in relation to the Comptroller and Auditor General] to ensure that the office holders receive a fair hearing and why is there no provision for a right of access to a court?

The independence of the Comptroller and Auditor General, which allows him to make judgements on the use made of public funds free from external considerations, is of supreme importance. Once appointed, changes cannot be made to the terms of his appointment during his period in office. Removing a Comptroller and Auditor General from office is something which should only happen in the most exceptional of circumstances. For that reason, removal is a matter for the Sovereign, on an address from the two Houses of Parliament. That arrangement has been in place now for almost 150 years.

Specifying what procedure the Houses should follow in making such an address risks breaching the privilege of Parliament to devise its own procedures. The terms of the addresses could similarly be expected to fall outside the jurisdiction of the courts. It is possible, however, that events preliminary to the giving of an address, whether in Parliament or outside it, might be covered by the protections of Article 6 and the common law right of procedural fairness. The Government, however, does not believe that it would be appropriate to prescribe a more detailed mechanism for the removal of the Comptroller and Auditor General in the Bill. It believes that to the extent these protections and rights are engaged, they are sufficiently protected by the obligation for Parliament to adopt a procedure that is fair in the circumstances.

(4) Nationality discrimination in Crown employment

Question 24: Please explain how the present law is compatible with these international human rights obligations.

Question 25: Why is the problem of unjustified nationality discrimination in access to Crown employment not dealt with in Part 1 of this Bill?

In light of recent developments I will deal with Questions 24 and 25 together.

It is correct that 95% of civil service posts in the UK are already open to nationals from Commonwealth countries, the European Economic Area (EEA), Switzerland and Turkey and certain family members of EEA, Swiss and Turkish nationals irrespective of their nationality. Further, where certain conditions are satisfied, other non-UK nationals may obtain an alien certificate under the provisions of the Aliens' Employment Act 1955 to work in a civil capacity under the Crown.

The Crown Employment (Nationality) Bill, a handout private members' bill, has been brought forward on a number of occasions; most recently on the 26 January 2009 with the sponsorship of the Chairman of the JCHR. This private members' bill would remove the remaining nationality restrictions in respect of employment or holding of office in a civil capacity under the Crown and would empower a Minister of the Crown to make rules in respect of nationality requirements of certain categories of posts allowing posts to be reserved to UK nationals. The Government supported the private members' bill.

Given that the provisions of the private members' bill were being considered by Parliament it was not appropriate to address these matters in the Bill, introduced on 20 July 2009. Unfortunately there was insufficient parliamentary time for that Bill to complete report stage on 19 October 2009 and it was subsequently withdrawn.

On 3 November 2009, during committee stage of the Bill, the committee of the whole House considered amendments which you had tabled which would have added provisions which are similar to the private members' bill to Part 1. I am happy to say that the Government supported these amendments and that the committee added these provisions to the Bill. The Government is presently considering, amongst other things, whether any technical modifications are required to those provisions to ensure that they are a fit with the rest of Part 1. Any such amendments will be brought forward at report stage.

(5)The meaning of "public function" in the Human Rights Act

Question 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?

The Government recently addressed this issue in detail in its response to the Committee's Ninth Report of Session 2006-7, which was published on 29 October 2009.

In that report it noted that:

The Government intended to consult on the scope of the Human Rights Act 1998, as presently defined by "public authority" in section 6, as part of the Green Paper published as Rights and Responsibilities: developing our constitutional framework.

However, the Green Paper developed in such a way that the inclusion of a discussion about the Human Rights Act, to which the Government remains committed, was not appropriate. Furthermore, the Government is considering the recent judgment of the Court of Appeal in R (Weaver) v London & Quadrant Housing Trust, which may be heard in due course by the Supreme Court. The Government nevertheless remains firmly committed to consulting on this issue.

(6) The Intelligence and Security Committee

Question 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?

Parliament established the Intelligence and Security Committee ("ISC") in the Intelligence Services Act 1994. The Committee is the statutory provision for parliamentary scrutiny of the expenditure, administration and policy of the security and intelligence agencies. The Government believes that Parliament has been well served by the ISC since its inception.

The Governance of Britain - Constitutional Renewal White Paper (Cm 7342), put forward a number of proposals to improve the transparency, accountability and effectiveness of the ISC. Following their approval by both Houses, the Government was able to implement those measures immediately without need for legislation. The Government has not ruled out the possibility of further measures but the aim of the reform package was to increase transparency and make scrutiny of the Agencies more effective without compromising national security. If the Government identifies further measures that would make a significant difference to the quality of the oversight the ISC can provide, the Government will then act accordingly. In the meantime, the Government refers the JCHR to its response to its report, Allegations of UK complicity in torture.[165]

(7) Royal Marriages and Succession to the Crown

Question 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?

Question 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?

Question 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.

As you acknowledge, I made clear in the debate on Evan Harris's Bill that this was a complex matter which would require consultation with Commonwealth Governments and would require careful thinking about the implications for the position of the Church of England as the established church.

Since the debate on 27 March, the Government has continued to explore the issues which would be raised by legislation to reform the present rules on Catholic marriage and the succession of women to the Throne. This has included exploration of the legal position in relation to those other countries of which Her Majesty is Queen and discussions with their representatives. As you will realise, this is somewhat untested ground. The only possible precedent is with the abdication of Edward VIII in 1936. However, in 1936 only Australia, Canada and New Zealand of the present realms were independent countries. Although the Statute of Westminster had been passed by the UK Parliament in 1931, it had not been adopted by all the realms at that point. Moreover, since then the ability of the realms to legislate for themselves and the inability of the UK Parliament to legislate on their behalf has been strengthened.

In relation to the position of the Church of England, as you will be aware, the issue relates to the encouragement given to the Catholic partner in the marriage to have any children brought up as Roman Catholics. This raises the possibility that, at some point in the future, the Throne might be held by someone who is forbidden, by the rules of their own Church, to enter into communion with the Church of England.

Because resolution of this issue does not depend on the UK Government alone, it is not possible to specify a precise timetable to which we would hope to work. Although the legislation which would need amending is UK legislation, the other realms have an equal right of consideration. Discussions with the other realms are continuing.


156   (Seventh Report of Session 2008-09) HL Paper 47-I; HC 320-I. Back

157   Above n 156. Back

158   See the Government Response to the Second Report of the Committee: Parliamentary Scrutiny of Treaties (Second Special Report 1999-2000) HC 990. Back

159   Joint Committee on Human Rights: Government Responses to Reports from the Committee in the last Parliament (Eighth Report of 2005-06) HL Paper 104 HC 850. Back

160   See further An Elected Second Chamber: Further reform of the House of Lords (July 2008) Cm 7438, Chapter 5. Back

161   Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill (Session 2007-08) HL Paper 166-I; HC Paper 551-I. Back

162   Above n 158. Back

163   See section 9(9) of the Parliamentary Standards Act 2009. Back

164   See, in particular, the speech of the Attorney General in the House of Lords on 20 July 2009 (starting at column 1420). Back

165   The Government Reply to the Joint Committee on Human Rights report Allegations of UK Complicity in Torture (October 2009) Cm 7714. Back


 
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