Remedial Orders are secondary legislation made under the Human Rights Act 1998. They are used to remove incompatibilities with the European Convention of Human Rights (ECHR) in primary legislation identified by either domestic courts or the European Court of Human Rights (ECtHR). For every draft Remedial Order proposed by the Government, we are required to report to each House our recommendation as to whether a draft Order in the terms proposed should be laid before Parliament, and any other matter arising from our consideration of the proposal.
A proposal for a draft Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010 was laid before Parliament on 26 July. The purpose of the draft Remedial Order is to remove the incompatibility in Section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 declared by the domestic courts in Baiai v Secretary of State for the Home Department. Section 19 creates a Certificate of Approval scheme involving people subject to immigration control. This scheme prohibits people subject to immigration control from marrying other than in a Church of England religious ceremony without authorisation. In 2006, the domestic courts ruled that the exemption of Church of England marriages is incompatible with the right to marry without discrimination on the grounds of religion (Articles 14 considered with 12, ECHR). The draft Order repeals all the provisions of primary and secondary legislation required to operate the scheme.
Subject to a minor drafting issue, we recommend that a draft order in the same terms as the proposal be laid before both Houses. In our view, the proposal would remove the incompatibility identified by the domestic courts.
Use of the Remedial Order process
We agree that the two conditions for the Minister using the Remedial Order process, that the provision has been declared incompatible with a Convention right and that no further appeal is possible, have been met.
The Government argued that the incompatibility should be addressed through the Remedial Order process for three reasons: the lack of available time in the Government's legislative programme for primary legislation to be introduced to tackle this issue; the need to deal with issues relating to discrimination swiftly and the four year delay in remedying the compatibility. We agree these are sufficiently compelling reasons to justify proceeding by way of Remedial Order.
Scope of the proposal
We have considered whether it is necessary to abolish the Certificate of Approval scheme in order to remove the identified incompatibility with Convention rights. The option to abolish the scheme is broader than the alternative of extending the scheme to include Church of England marriages, which would also address the incompatibility. The previous Government, however, failed to find a politically and legally acceptable method of extending the scheme, after spending a significant time discussing the issue with the Church of England. The Government has also explained that modifications to the scheme to introduce human rights safeguards have meant it is no longer as effective in meeting its objectives as was originally hoped. In these circumstances, we agree that it is necessary to abolish the scheme in order to remove the incompatibility identified by the domestic courts. The Government should provide further information on its policy and legislative intentions to deal with sham marriages.
We also recommend thatin light of the abolition of the scheme in relation to civil marriagesthe inclusion of provisions to abolish the application of the scheme to civil partnerships is appropriate in order to avoid further violations of Convention rights.
Use of the non-urgent procedure
Using the non-urgent instead of the urgent procedure for a Remedial Order provides for parliamentary scrutiny of the Order, before it comes into force, but slows the redress of the incompatibility. Although we note that there has been a four-year delay in remedying the incompatibility, we welcome the Government's decision in this case to use the non-urgent procedure. This strikes a reasonable balance between the need to remedy the violation without further delay and for effective parliamentary scrutiny.
We have drawn a single technical drafting issue to the attention of officials. In order to have its desired effect, we consider that the draft Order could amended to repeal Article 6 of the Immigration and Asylum and Nationality Act (Commencement No 6) Order 2007.
Other matters arising
Four years have elapsed since the original declaration of incompatibility by the domestic courts in 2006. We regret the delay in remedying the incompatibility in this case, given that the legal steps proposed in the draft Order are not complex.
In future cases, we recommend that any departments considering the use of the Remedial Order process consult the predecessor Committee's guidance on the making of Remedial Orders. We also recommend that full information on the ongoing impact of a violation subject to a proposal for a Remedial Order should be included with the required information.
A challenge to the Certificate of Approval scheme is currently pending consideration by the European Court of Human Rights in the case of O'Donoghue v UK. We recommend that the Government should accept any ECtHR suggestion to treat this case as a pilot judgment and that they proactively consider mechanisms to respond to pending applications in clone cases should the applicant in O'Donoghue be successful. The Government should also consider how to proactively manage any applications for further compensation should the applicants in O'Donoghue be awarded just satisfaction.