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)
|