3 Is it proper to proceed by way of
non-urgent remedial order?
16. The Government has produced each of the documents
required by the HRA 1998. It has also responded swiftly to the
Committee's request for further information. There are no technical
issues which the Committee would be required to draw to the attention
of both Houses.
17. In its required information note, the Government
explains that it considers that there are compelling reasons to
use Section 10 HRA because:
The Government takes this issue very seriously and
considers that steps should be taken to address this incompatibility
expeditiously, in line with the recommendations of the Joint Committee
on Human Rights (JCHR). In the absence of any suitable First Session
bills to rectify the incompatibility, and mindful of the need
to avoid undue delay, it is the view of the Government that it
is appropriate to seek to remedy the incompatibility in the 2003
Act by means of the available process for making remedial orders
under section 10 of the Human Rights Act 1998.[22]
18. In its Impact Assessment, the Government explains
that a further reason for speedy action is the need to avoid further
costly litigation in repeat cases, and the risk that the domestic
courts may decide to award compensation to offenders who challenge
their indefinite notification requirements.[23]
In her latest letter to the Committee, the Minister reiterates
the need for speedy action and cites a likely congestion in the
legislative timetable as justification for the use of the remedial
order process.[24] The
Minister added that the Government intends to introduce its proposals
before September 2012, because under the timescales they envisage
for an initial review (15 years for adult offenders, 8 years for
child offenders), the first people required to notify would be
eligible for review by that date.
19. In light
of the time which has passed since the decision in Thompson,
the continuing impact on those required to notify indefinitely,
and ongoing uncertainty about the lawfulness of the notification
requirements, there are sufficiently compelling reasons to justify
the use of the remedial order process.[25]
In addition, the Government is currently
consulting on new requirements for notification, including more
rigorous requirements for the notification of travel overseas
and notification of residence with under-18s.[26]
If the impact on individuals who are required to register increases,
an opportunity for review for those indefinitely registered may
become more urgent.
20. The JCHR guidance on whether a remedial order
should follow the urgent or non-urgent procedure looks at:
- The significance of the rights
which are, or might be affected by the incompatibility;
- The seriousness of the consequences for identifiable
individuals or groups allowing the continuance of an incompatibility
with any right;
- The adequacy of compensation arrangements as
a way of mitigating the effects of the incompatibility;
- The number of people affected;
- Alternative ways of mitigating the effect of
the incompatibility pending amendment to primary legislation.[27]
21. In its required information note, the Government
explains that it has decided to use the non-urgent process in
order to ensure adequate parliamentary scrutiny of this issue:
The Government has concluded that [an urgent Order]
would not be suitable, given the time that has elapsed since the
decision of the Supreme Court was handed down and the need for
robust Parliamentary consideration of the balance to be struck
between individual rights and public safety.[28]
22. We
agree with the Government's assessment that there are compelling
reasons for using the remedial order process to introduce a form
of review into the registration of sex offenders. We also agree
that an urgent remedial order would not be justified. There is
nothing in this case which would justify the use of the urgent
remedial order process. An increasing number of people are subject
to indefinite notification requirements. However, the significance
of the impact of these requirements does not justify the removal
of the opportunity for parliamentary scrutiny before the relevant
reforms come into force. This is particularly significant in light
of the political sensitivity of these measures.
22 Required Information Note, p 2 Back
23
Impact Assessment, p 8 Back
24
Ev 40-51 Back
25
See for example, Fifth Report of Session 2010-11, Proposal
for the Asylum and Immigration (Treatment of Claimants, etc) Act
2004 (Remedial) Order 2010, HL 54/HC 599, paras 16-18. Back
26
Home Office, Reforming the Notification Requirements of Registered
Sex Offenders (Part 2 of the Sexual Offences Act 2003): A Targeted
Consultation, June 2011 Back
27
Seventh Report of 2001-02, The Making of Remedial Orders,
HL 58/HC 473, paras 36-37. Back
28
Required Information Note, p 2 Back
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