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

Conclusions and recommendations

1. Recommendation

1.  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. (Paragraph 3)

2. Background to our Recommendation

2.  We agree that it is open to the Minister to proceed by way of a Remedial Order in this case, since a declaration of incompatibility has been made and no further appeal is possible. (Paragraph 15)

3.  We consider that the reasons given by the Government for using the Remedial Order process in this case are clearly capable of being "compelling reasons" for the purposes of Section 10(2) HRA 1998. In our view they are sufficiently compelling to justify proceeding by way of Remedial Order in this case. (Paragraph 18)

4.  we consider that it is necessary to abolish the Certificate of Approval scheme in order to remove the incompatibility identified by the domestic courts in Baiai v Secretary of State for Home Affairs. (Paragraph 24)

5.  Where there are alternative means to remove an incompatibility with Convention rights, the Minister must show why the Government's approach is necessary and should give evidence why obvious alternatives are not. In a case such as this, where there appears to be a narrower approach possible, relevant factors will include: (a) steps taken to secure the alternative, narrower, approach; (b) the breadth of the Government's proposal and justification for it; and (c) whether the Government's approach will adversely affect a human rights enhancing measure or a measure which has human rights enhancing effects, despite the incompatibility concerned. (Paragraph 25)

6.  We are satisfied that the proposal for a Remedial Order meets the statutory requirements stipulated by HRA 1998. However, in the light of the broader approach taken by the Government, we are concerned that Parliament should have certain additional information in order to help inform the decision of both Houses whether to approve the Order, and our decision as a Committee on whether approval should be recommended. In this case, we recommend that any draft Order repealing the Certificate of Approval scheme is accompanied by an explanation by the Government of any steps it intends to make to meet the original policy intention of the scheme. This information should include existing and planned measures or policy intentions and an explanation of the Government's view that those measures will be effective, proportionate and compatible with the human rights obligations of the United Kingdom. (Paragraph 26)

7.  we recommend that the inclusion of provision to abolish the Certificate of Approval scheme in so far as it extends to civil partnerships is an appropriate consequential amendment. This wider approach is necessary in our view to avoid further violations of Convention rights and is an appropriate use of the power to make incidental, supplemental or consequential provision in paragraph 1(1)(a) of Schedule 2 of the HRA 1998, which is expressed in very broad terms. (Paragraph 30)

8.  In our view the repeal of the Certificate of Approval scheme proposed in the draft Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Remedial) Order 2010 would remedy the incompatibility identified in Baiai v Secretary of State for the Home Department. (Paragraph 31)

9.  We are satisfied that the Government has provided the information required by the HRA 1998. Subject to a few concerns raised below, we welcome the full and timely information provided by the Government. (Paragraph 32)

10.  Subject to concerns expressed below about earlier delay in this case, it is our view that the use of the non-urgent process in this case strikes a reasonable balance between the need to remedy the violation without any further delay and the need for effective parliamentary scrutiny. We welcome the Government's decision to use the non-urgent procedure. (Paragraph 41)

11.  In the interests of completeness, we consider that the draft could be amended to provide for the repeal of Article 6 of the Immigration and Asylum and Nationality Act 2006 (Commencement No 6) Order 2007 and the equivalent savings clauses for the Isle of Man in Immigration (Isle of Man) Order 2008. We have drawn this drafting issue to the attention of officials and Parliamentary Counsel. Subject to this minor technical concern, we recommend that the draft Order should be laid before both Houses for their consideration as proposed. (Paragraph 43)

3. Other matters arising

12.  As we have noted above, the legal steps proposed in the draft Order are not complex. As we explain above, we consider that it was acceptable for the Government to spend some time consulting on how to extend the scheme to remove the discrimination. We are doubtful whether it was appropriate not to seek to remedy the incompatibility during the two years between the making of the original declaration of incompatibility and the decision of the House of Lords. Equally, a further two years have passed since the decision of the House of Lords in 2008. Since that time, the Government has received 47,926 individual applications under the discriminatory Certificate of Approval scheme. While we welcome the Government's decision to introduce a Remedial Order in this case, and its decision to use the non-urgent procedure, we regret the earlier delay in remedying the incompatibility. (Paragraph 47)

13.  We recommend that any Departments considering use of the Remedial Order process consult this Committee's guidance on the making of Remedial Orders. We recommend that any formal guidance produced by the Government on the issue of responding to adverse human rights judgments incorporates this guidance and encourages officials working on any proposals for Remedial Orders to contact the staff of the JCHR at an early stage. (Paragraph 49)

14.  However, full information on the ongoing impact of a violation subject to a proposal for a Remedial Order, including any relevant statistical information, should always be included with the required information prepared. This may reduce the need for further unnecessary correspondence between the Committee and Ministers and may allow our Report on a proposal to be published at an earlier stage. (Paragraph 50)

15.  We recommend that the Government should accept any ECtHR suggestion to treat this case as a pilot judgment. We call on the Government to proactively consider mechanisms to respond to pending applications in clone cases should the applicant in O'Donoghue be successful. (Paragraph 51)

16.  We note that the proposal for the draft Remedial Order makes no provision for compensation for those affected by the violation identified in this case. In the past, predecessor Committees have recommended that amendments be made to ensure that Remedial Orders adequately compensate individuals adversely affected by violations of the Convention. (Paragraph 52)

17.   In the light of the judgment of the domestic courts, and the operation of the limited ex-gratia scheme in this case, we recommend that the proposed draft Order is tabled despite the lack of provision for further compensation. However, we note the ex-gratia scheme did not compensate for the impact of the discriminatory application of the scheme, as opposed to hardship caused by the fees imposed. The Government should consider how to proactively manage any applications for further compensation should the applicants in O'Donoghue be awarded just satisfaction. Innovative thinking should be encouraged to avoid adding to the backlog of cases at the ECtHR, particularly in clone cases where applicants simply seek a repetitive decision and an award of just satisfaction. (Paragraph 52)

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