3 Declarations of Incompatibility
Introduction
136. There has been one new final declaration of
incompatibility made during the past year.[135]
There have been a number of new declarations, however, which have
been overturned on appeal or which are currently subject to appeal.[136]
137. In our previous Reports, we praised the Ministry
of Justice database on declarations of incompatibility, noting
that, if regularly updated, the database can significantly increase
the transparency of the Government's response to these important
judgments.[137] In
our last Report, we expressed disappointment that the database
did not appear to have been updated for a significant period of
time; nor was it easily accessible on the new, redesigned, Ministry
of Justice website.
138. Through officials at the Ministry of Justice,
we have been provided with an updated version of this database,
which adopts a different narrative format, which in our view is
difficult to follow and less accessible. We are disappointed that
the database is no longer available on the Ministry of Justice
website. We recommend that the Ministry of Justice takes steps
to resolve this problem to enable widespread public access to
its database on declarations of incompatibility in order to enhance
transparency in the implementation process. We also repeat our
recommendation that the database should be reviewed and updated
on at least a quarterly basis.
Recent declarations of incompatibility
SUITABILITY OF CARE WORKERS TO WORK
WITH VULNERABLE ADULTS (WRIGHT V SECRETARY OF STATE FOR HEALTH)
139. On 21 January 2009, in Wright v Secretary
of State for Health, the House of Lords made a declaration
of incompatibility in relation to the scheme for placing care
workers employed to look after vulnerable adults on a list of
people considered unsuitable to work with such adults. It declared
section 82(4)(b) of the Care Standards Act 2000 to be incompatible
with the right to a fair trial (Article 6 ECHR) and to respect
for private life (Article 8 ECHR).
140. We considered and reported on this declaration
of incompatibility when scrutinising the then Policing and Crime
Bill, as it amended the Safeguarding Vulnerable Groups Act 2006
which replaced the Care Standards Act.[138]
We wrote to the Minister to ask whether, in the light of the House
of Lords judgment in Wright, the 2006 Act is compatible
with human rights and whether it meets the problems identified
by the House of Lords in relation to Articles 6 and 8 ECHR. In
reply, the Minister told us that the Government remained
satisfied that the 2006 Act was compatible with human rights,
as the new scheme does not involve any provisional listing and the
Independent Safeguarding Authority (ISA) must invite representations
before placing someone on the list. However, the Minister
also noted that individuals would not be able to make representations
where it was considered that they posed an immediate risk of harm.
In our Report, we concluded that aspects of the new scheme under
the Safeguarding Vulnerable Groups Act remained troubling from
a human rights perspective. We concluded:
The fact that the individual will not be invited
to make representations where it is deemed that she poses an immediate
risk of harm before she is placed on the barred list appears,
on its face, to be analogous to the Secretary of State's discretion
to offer some care workers, but not others, the opportunity to
make representations, which was part of the House of Lords' reasoning
in Wright.[139]
141. We noted the House of Lords' decision that there
needed to be a swift method for hearing both sides of the story
and before irreparable harm was done. We concluded that it was
unclear how quickly a hearing involving the barred person, at
which he or she could make representations, would take place under
the new scheme. We recommended that the Government consider whether
the procedure needs to be amended to give effect to the judgment
by ensuring that an individual who is placed on the barred list
without the possibility of making representations is able to make
representations at a full hearing as a matter of urgency and,
as the House of Lords held, "before irreparable damage [is]
done".[140] We
reiterate these concerns and encourage the Government to clarify
the issue.
142. We have recently received a submission from
Richard Thomas, Administrative Justice and Tribunals Council Chairman,
expressing serious concerns about the compatibility of Section
4 of the Safeguarding Vulnerable Groups Act 2006 with the right
to a fair hearing, as guaranteed by Article 6 ECHR and the right
to respect for private and family life, guaranteed by Article
8 ECHR. His particular concern focuses on the limited right of
appeal open to individuals who are to be listed. The existing
route of appeal is limited to appeal on grounds of error of fact
or error of law. Mr Thomas points out, that in decisions which
involve the determination of whether it is appropriate for an
individual to be included on a safeguarding list, this involves
the exercise of discretion. Without a full appeal in respect of
this discretionary power, the right to appeal is not adequate
to meet the need for a hearing by an independent and impartial
tribunal for the purposes of Article 6 ECHR. This reasoning has
recently been confirmed by Lord Justice Laws in the Court of Appeal:
Though it may entertain appeals on law or fact
from the ISA for the purposes of its jurisdiction "the decision
whether or not it is appropriate for an individual to be included
in a barred list is not a question of law or fact (s 4(3) of the
2006 Act). The issue most likely to be critical in a case like
the present, namely whether on the proved or admitted facts the
quality of an individual's act should be judged severe enough
to put him on the barred list, appears to lie beyond the Upper
Tribunal's decision.[141]
143. We have not had an opportunity to enter into
correspondence with the Government on the scope of concerns raised
by the Chairman of the Administrative Justice and Tribunals Council
(AJTC) about the right to a fair hearing in relation to barring
decisions made under the Safeguarding Vulnerable Groups Act 2006.
We publish the recent letter of the Chairman of the AJTC with
this report. We consider that the concerns which he has raised
about the scope of the right to appeal in respect of barring decisions
are serious ones. We recommend that the Government should respond
directly to the Chairman of the AJTC, including its analysis of
the compatibility of Section 4 of the Safeguarding Vulnerable
Groups Act 2006 with Articles 6 and 8 ECHR. We call on the Government
to publish that response as soon as possible.
Unremedied declarations of incompatibility
144. In this section, we consider declarations of
incompatibility which remain outstanding because they have still
not been remedied by the Government. We do not propose to set
out the facts of these cases; this section should be read together
with our previous Reports.
RELIGIOUS DISCRIMINATION IN SHAM
MARRIAGES REGIME (BAIAI V SECRETARY OF STATE FOR THE HOME DEPARTMENT)
145. This case determined that the requirement that
any marriage outside the Church of England involving a person
subject to immigration control must be subject to a Certificate
of Approval issued by the Secretary of State was incompatible
with the right to enjoy respect for religion and belief without
discrimination (as guaranteed by Article 9 and 14 ECHR). The Government
accepts that the exemption of the Church of England from the Certificate
of Approval regime is in breach of the Convention. In our last
report, we criticised the Government's approach to this case.
We called on the Government to explain its plan to create a distinct
scheme for Church of England marriages and to bring forward its
proposals for the removal of the discriminatory exemption without
delay.[142]
146. In its response to our last report, in January
2009, the Government told us:
The Government is committed to remedying the
declared incompatibility with Article 14…The UK Border Agency
is liaising with relevant stakeholders and is considering the
most appropriate way to remedy the incompatibility. We are conscious
of the House of Lords find that the scheme could represent a disproportionate
interference with Article 12 for those applicants who are needy
and not able to afford the fee for a Certificate of Approval application,
and are considering very carefully the implications of the House
of Lords judgment in this respect. This aspect relates to the
secondary legislation, and is separate from the declaration of
incompatibility which of course concern the primary legislation.[143]
147. We wrote to the Government in May 2009, asking
for further information on progress in relation to this case.[144]
We also noted that the compatibility of the Certificate of Approval
scheme with the right to marry and the right to respect for belief
or religion without discrimination (Articles 12, 9 and 14) is
being challenged at the European Court of Human Rights.[145]
148. The Immigration Law Practitioners Association
(ILPA) told us:
- The Government delay in relation
to its response to the declaration of incompatibility in this
case; and its response to the findings of the House of Lords was
extensive;
- It was surprised by the Government's statement
that the UK Border Agency had been liaising with stakeholders
on this case. ILPA is part of the Agency's Corporate Stakeholder
Group and had tried, unsuccessfully, to raise the need for a response
to this case. It understood that both interveners in the case,
AIRE Centre and the Joint Council for the Welfare of Immigrants,
had not been consulted;
- An opportunity for reform had been missed in
the Borders, Citizenship and Immigration Act 2009; and
- This scheme continued to operate: "The blanket
prohibition on the right to marry without such a certificate and
the exemption for the Anglican church remain."[146]
149. On 12 November 2009, six months after our original
letter, the Minister responded to our request for further information.
He told us that the Government considered that, in its view, it
had taken adequate steps to meet the criticism of the House of
Lords that the fees associated with the Certificate of Approval
scheme could interfere with the right of needy applicants to marry
(Article 12 ECHR). In any event, the Government had decided to
remove the entire Certificate of Approval scheme rather than reform
it to extend to Church of England marriages:
The UK Border Agency has sought for some time
to bring marriages after Anglican preliminaries in England and
Wales within the CoA scheme but has been unable to find a workable
solution. The imperative need to respond to the declaration of
incompatibility, together with other changes to the CoA scheme
since 2005 which we believe have weakened its effectiveness, have
led us to conclude that we should deal with the incompatibility
by removing the scheme. We propose to bring forward a Remedial
Order under Section 10 of the Human Rights Act to achieve this.[147]
150. The Minister explained that the Government envisaged
using the non-urgent procedure and planned to lay a proposal before
Parliament as "early as possible in the New Year". The
Government intended to reform the rules on gaining immigration
status through marriage in order to achieve the policy intentions
it had intended to pursue through the Certificate of Approval
scheme.[148] The Government
hoped that these proposals would be in place before the Remedial
Order came into force. The Minister promised to write to us in
due course with further details about its approach. In January
2010, the Government re-affirmed its intention to bring forward
these proposals "as soon as possible" but explained
that it did not intend the Order to come into force until at least
the end of 2010.[149]
151. We welcome the Government's decision to bring
forward a Remedial Order in this case. Unfortunately, as we have
no information about the substance of the Order or its likely
timetable, we are unable to consider the substance of the Government's
approach. We are concerned that it is now almost a year since
we asked for further information on this case. The relevant declaration
of incompatibility is over three years old and yet we still have
no clear proposals to scrutinise or any timetable for action.
152. If the Government intends to remove the entire
Certificate of Approval Scheme, this would be a relatively simple
legislative change, which could have been achieved during this
parliamentary session with relative ease. However, we regret that
the Government has moved so slowly towards the production of a
draft Order that it cannot be considered before the end of this
Parliament. In the meantime, this scheme continues to operate
in a discriminatory way, in breach of the right to marry without
discrimination. In the light of the earlier prolonged delay in
this case, further procrastination is unacceptable. We call on
the Government to publish its draft Order and its timetable for
reform as soon as possible. While delay may be inevitable, because
of the forthcoming election, any work done by the Government so
far to meet this incompatibility should be published in order
to inform the next Parliament, and to encourage prompt action
to remove the ongoing incompatibility in section 19 of the Asylum
and Immigration (Treatment of Claimants etc) Act 2004.
153. In its submission ILPA argued that this type
of delay was usually inherent in the actions of UK Border Agency.
[150] In our
last report, we expressed our view that where the Government was
involved in a case like this - where it accepted one declaration
of incompatibility, but sought to appeal another - there would
be a number of factors which would determine whether action was
necessary before the final appeal in the case. These factors included
the seriousness of the interference concerned, the time until
the appeal, any interim measures and the administrative costs
involved in an interim change to meet the relevant declaration
of incompatibility.[151]
ILPA expressed its concern that our comments had encouraged the
UK Border Agency to see administrative inconvenience as an acceptable
reason to stall its response to human rights arguments in other
cases:
ILPA is concerned that the [Committee's] reference
to striking a balance between cost and administrative convenience
and the detriment suffered by those whose human rights have been
breached may give comfort where none is intended. The cases above
are examples of breaches of human rights where the Government
has determined that there is not only "no rush" but
no need to do anything until forced to act as a result of subsequent
litigation. ILPA considers that in all cases a remedy should be
brought forward "without delay" and that delay, rather
than time taken to implement the judgment is what has been experienced
in the cases described.[152]
154. In our last report, we set out a number of
factors to be considered by Government in their response to accepted
declarations of incompatibility in cases which were still subject
to appeal. One of those factors was administrative cost. Our comments
were limited to a very narrow set of circumstances, and even in
those small number of cases, our view remains that any declaration
of incompatibility should be removed without unnecessary delay.
We repeat that the Government's response to cases finding incompatibilities
with Convention rights should be proactive, in order to ensure
that future breaches are avoided and that public funds are not
wasted pursuing repetitive cases.
155. We asked the Minister for Human Rights whether
the Government intended to seek a friendly settlement in the Strasbourg
challenge in the light of its decision to remove the Certificate
of Approval scheme. The Minister told us that the Government could
not discuss pending cases.[153]
We would be grateful if the Government would keep us informed
of progress in the case of O'Donoghue v United Kingdom
and provide us with the judgment in the case and any Government
response in due course.
DISCRIMINATION IN ACCESS TO SOCIAL
HOUSING (MORRIS V WESTMINSTER CITY COUNCIL)
156. This case concerned discrimination on the grounds
of nationality in respect of access to housing assistance offered
by local authorities. We commented on this case in our last two
reports, expressing concern over the time taken by the Government
to respond to the declaration of incompatibility.[154]
In its response to our request for further information, the Government
confirmed its view that Schedule 15 of the Housing and Regeneration
Act 2008 resolves the declaration of incompatibility in this case.[155]
157. We have previously reported our view that although
this measure may remove the direct cause of the incompatibility
identified in these cases, the solution in Schedule 15 of the
2008 Act gives rise to a similar risk of incompatibility.[156]
Schedule 15 continues to make a distinction between those entitled
to the full range of housing assistance in relation to priority
need, and a lesser set of obligations which will be open to those
whose priority need is based upon their relationship with a dependant
who is subject to certain immigration controls. We note that a
similar kind of distinction, albeit based on facts which arose
prior to the enactment of Schedule 15, is currently being challenged
at the European Court of Human Rights.[157]
PRISONERS' VOTING RIGHTS (SMITH
V ELECTORAL REGISTRATION OFFICER)
158. Section 3 of the Representation of the People
Act 1983 is subject to a declaration of incompatibility, in so
far as it imposes a complete ban on prisoners' voting.[158]
We considered this issue above, in Chapter 2.
135 R (Wright) v Secretary of State for Health [2009]
UKHL 3. Back
136
R (Black) v Secretary of State for Justice [2009] UKHL
1 (House of Lords overturned the declaration of incompatibility
made by the Court of Appeal); Nasseri v Secretary of State
for the Home Department [2009] UKHL 23 (House of Lords' upheld
Court of Appeal's decision overturning declaration of incompatibility
made by the High Court); R (F) v Secretary of State for Justice
[2009] EWCA Civ 792 (subject to appeal). Back
137
Second Monitoring Report, para. 27; Third Monitoring Report, para.
82. Back
138
Tenth Report of Session 2008-09, Legislative Scrutiny: Policing
and Crime Bill, HL 68/ HC 395, paras 1.106-1.110. Back
139
Ibid., para. 1.110. Back
140
Ibid., para. 1.110. Back
141
Governors of X School v R (on the application of G & Others)
[2010] EWCA Civ 1 Back
142
Third Monitoring Report, paras 96-106. Back
143
The Government Response (2009), page 28. Back
144
Ev 4 Back
145
O'Donoghue v United Kingdom, App. No. 34848/07. Back
146
Ev 34- 35 Back
147
Ev 5 Back
148
Cm 7730, Home Office, Simplifying Immigration Law, November
2009. Back
149
Ev 57 Back
150
Ev 40 - 41 Back
151
Third Monitoring Report, paras 104 - 106. Back
152
Ev 43 Back
153
Second Report of Session 2009-10, Work of the Committee in
2008-09, HL Paper 20/HC 185, Q 92. Back
154
Third Monitoring Report, para 95; Second Monitoring Report, para
134. Back
155
Ev 20. Back
156
Third Monitoring Report, para 95. Back
157
Bah v United Kingdom, App. No. 56328/07. Back
158
William Smith v Electoral Registration Officer [2007] CSIH
XA33/04 (24 January 2007) Back
| 
