Proposal for the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010 - Human Rights Joint Committee Contents

1  Recommendation

1. Remedial Orders are secondary legislation made under the Human Rights Act 1998 (HRA) to remove an incompatibility with Convention rights in primary legislation identified by either our domestic courts or the European Court of Human Rights.[1] After the domestic courts have made a declaration of incompatibility which is no longer subject to appeal, or a European Court of Human Rights judgment finding a violation becomes final, it is open to the Government to remove the relevant breach of the ECHR through the fast-track Remedial Order process. The Minister must consider that there are "compelling reasons" to use the Remedial Order process and "may by order make such amendments to the legislation as he considers necessary to remove the incompatibility."[2] The Minister can choose to use either an "urgent" or a "non-urgent" Remedial Order. A draft remedial order may not be laid before Parliament unless the person proposing to make the order has previously laid before Parliament a document which contains a draft of the proposed order and "the required information".[3]

2. A proposal for a draft Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010 and the required information was laid before both Houses on 26 July 2010. Our terms of reference require us to report to each House our recommendation as to whether a draft order in the same terms as the proposal should be laid before Parliament, and we may also report on any matter arising from our consideration of the proposal.[4] We issued a call for evidence on the Government's proposal on 9 September 2010, the day following our first meeting in this Parliament. We have received two submissions: from the Equality and Human Rights Commission (EHRC) and the Immigration Law Practitioners Association (ILPA). Both submissions are supportive of the Government's proposal.[5]

3. Subject to a minor drafting issue, which we explain below, we recommend that a draft Order in the same terms as the proposal for a draft Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010 should be laid before both Houses.

1   Section 10 and Schedule 2, HRA 1998. Back

2   Section 10(2) HRA 1998. Back

3   Para 3(1)(a) of Schedule 2, HRA 1998. The required information means (a) an explanation of the incompatibility which the order (or proposed order) seeks to remove, including particulars of the relevant declaration, finding or order; and (b) a statement of the reasons for proceeding under section 10 and for making an order in those terms (para 5, Schedule 2). Back

4   House of Commons Standing Order 152(B) and House of Lords Standing Orders, 2010, 72(c). Back

5   Ev 2 (Vol. II) and Ev 1 (Vol. II). Back

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Prepared 16 November 2010