Legislative Scrutiny: (1) Superannuation Bill; (2) Parliamentary Voting System and Constituencies Bill - Human Rights Joint Committee Contents


Conclusions and recommendations


1. Superannuation Bill

1.  In our considered view, having regard in particular to the fact that civil servants' rights to payments under the CSCS have already accrued in respect of service already given, the limits on those payments in clause 3 of the Bill clearly engage civil servants' right to peaceful enjoyment of possessions in Article 1 Protocol 1 and constitute an interference with that right. (Paragraph 1.19)

2.  We are not satisfied that the Government has provided an adequate justification for the Bill's particular limits on civil servants' accrued rights to compensation under the terms of the current CSCS. We are conscious that the burden of justification on the Government is not as onerous as the requirement to demonstrate the "strict necessity" of, for example, an interference with freedom of speech. We bear in mind, however, that, even under Article 1 Protocol 1, interferences with accrued rights must not be arbitrary and must be proportionate in the sense that they must not impose too great a burden on individuals in the pursuit of the public interest. (Paragraph 1.29)

3.  In reaching our conclusion we have been particularly influenced by the fact that the limits on compensation contained in the Bill are considerably less generous than those which the Government has indicated it is prepared to agree in its ongoing negotiations with the unions. In our view, the Government's own description of the limits on compensation in the Bill as "a blunt instrument" which essentially represent the Government's minimum negotiating position in those negotiations, is not compatible with its argument that the particular limits in the Bill are a necessary and proportionate interference with civil servants' accrued rights. We therefore conclude that the particular limits on compensation payments imposed by clause 3 of the Bill have not been shown to be justified interferences with civil servants' right to peaceful enjoyment of their accrued rights to compensation payments in respect of service already given. (Paragraph 1.30)

4.  We question whether limiting civil servants' compensation payments by statute leads to any less legal uncertainty than doing so by amending the CSCS. The possibility of a final declaration of incompatibility, or a decision of the European Court of Human Rights, that the statutory limits are incompatible with Article 1 Protocol 1, introduces much the same degree of legal uncertainty, because if such a challenge were ultimately to succeed it is likely that the Government would have to remedy the incompatibility by compensating all those affected to the extent of their lost entitlement. In our view, the Government should seek to minimise legal uncertainty, not by questionable distinctions between the relative uncertainty caused by incompatible primary and subordinate legislation, but by providing for limits on compensation for which it can provide a stronger justification than it has provided in relation to the limits in the Bill. (Paragraph 1.32)

2. Parliamentary Voting System and Constituencies Bill

5.  We accept, as a matter of ECHR case-law, that the definition of the franchise in a referendum does not engage Article 3 Protocol 1, for the reasons given in the Explanatory Notes: the right applies only to the election of the legislature. Clause 2 of the Bill therefore does not directly raise a human rights compatibility issue. (Paragraph 2.13)

6.  The Bill defines the right to vote in a referendum by reference to the parliamentary franchise at a future date, namely the date of that referendum (5 May 2011). In our view Parliament is entitled to know, when considering this Bill, whether the Government intends to amend the parliamentary franchise by that date to remove the incompatibility identified by the Grand Chamber in Hirst. (Paragraph 2.15)


 
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Prepared 29 November 2010