3 Bills cleared from scrutiny
13. We have cleared a number of Bills from scrutiny
on the basis that they either do not raise any significant human
rights issues, or any human rights issues they raise are not sufficiently
significant to warrant further scrutiny.
Bills not raising any significant
human rights issues
14. We cleared the following four Bills from
scrutiny on the basis that they did not raise any significant
human rights issues:
- the EU (Approvals) Bill;
- the EU (Croatian Accession and Irish Protocol)
Bill;
- the HGV Road User Levy Bill; and
- the Partnerships (Prosecution) Scotland Bill
Bills raising human rights issues
but not warranting further scrutiny
15. We cleared two Bills from scrutiny on the
basis that, although they raised human rights issues, those issues
were not sufficiently significant to warrant further scrutiny,
having regard to the significance of the other issues we were
scrutinising in relation to other Bills. Where we considered a
human rights issue in relation to a Bill but decided not to scrutinise
it further, we briefly explain our reasoning below.
GROCERIES CODE ADJUDICATOR BILL
16. The Groceries Code Adjudicator Bill completed
its Report Stage and Third Reading in the House of Commons on
26 February and is in the final stages of its passage through
Parliament.
17. The Bill establishes an Adjudicator with
the role of enforcing the Groceries Code and encouraging compliance
with it. The Government's Explanatory Notes identify that the
rights to a fair trial[9],
privacy[10] and property[11]
are engaged by the Bill. We found that the Government's human
rights analysis in the Explanatory Notes was correct except in
relation to Clause 8 of the Bill, which allows the Adjudicator
to require a large retailer[12]
(who the Adjudicator is satisfied has breached the Groceries Code)
to publish information about the Adjudicator's investigation,
including its outcome. Under this provision, the Adjudicator will
inform the retailer in writing of the information required to
be published, the manner in which it must be published and the
time by which it must be published. For example, the Adjudicator
could require publication by press release, through the large
retailer's annual report or website or through a newspaper advertisement.[13]
In its pre-legislative scrutiny of the draft Bill, the Business,
Innovation and Skills Committee referred to this as the powers
of the Adjudicator to "name and shame" large retailers.[14]
There is no direct right of appeal available to the large retailer
to challenge this requirement.
18. In its Explanatory Notes to the Bill, the
Government stated that the right to a fair trial under Article
6(1) ECHR is not engaged by this provision (but went on to state
that, in the event that Article 6 was found to be engaged, judicial
review would be sufficient to rectify any failure by the investigation
process to comply with fair trial principles).[15]
19. In our view, Article 6(1) is engaged given
the nature of the Adjudicator's decision, and in particular the
consequences for the retailer's reputation as a result of being
required to publish the information. The retailer therefore has
a right to a fair hearing in the determination of their rights,
which includes the right of access to an independent court or
tribunal. In this context, it is questionable whether judicial
review would be sufficient as it could not review any factual
errors in the Adjudicator's investigation and determination process
leading to a requirement to publish information.
20. However, whilst there is no opportunity to
appeal a requirement by the Adjudicator to publish information,
the large retailer has the option to do nothing in response to
such a requirement. The Adjudicator can only enforce the requirement
to publish information by bringing civil proceedings, which the
large retailer can defend.[16]
In our view, this would provide the retailer with the opportunity
to challenge the Adjudicator's determination before a court of
full jurisdiction and is therefore sufficient to overcome any
fair hearing concerns about the lack of a direct appeal. We
therefore concluded that the Groceries Code Adjudicator Bill did
not warrant further scrutiny and we cleared it from scrutiny without
corresponding with the Government.
GROWTH AND INFRASTRUCTURE BILL
21. The Growth and Infrastructure Bill completed
its Report Stage in the House of Lords on 20 March 2013.
22. Some of the provisions of the Bill raise
some potentially significant human rights issues, in particular
those concerning the lack of a right of appeal against certain
planning decisions and the rights of "employee owners".
We received a submission from Mr Christopher Whitmey arguing that
the Bill's provisions concerning town and village greens are incompatible
with the right to peaceful enjoyment of possessions in Article
1 Protocol 1 ECHR because they fail to provide a just and appropriate
remedy to enable landowners to prevent their land from being rendered
virtually valueless by registration as a town and village green.[17]
23. Applying our published criteria
of significance, however, and in view of the significance of the
other issues we were scrutinising in relation to other Bills,
we decided that we could not further examine the human rights
issues raised by the Growth and Infrastructure Bill.
9 Article 6(1) ECHR Back
10
Article 8 ECHR Back
11
Article 1 Protocol 1 ECHR Back
12
All retailers with a turnover of more than £1 billion in
groceries in the United Kingdom Back
13
Bill 62 EN 2012-13, para. 44 Back
14
Business, Innovation and Skills Committee, Time to bring on
the referee? The Government's proposed Adjudicator for the Groceries
Code, Ninth Report of Session 2010-12, para.119 Back
15
Bill 62 EN 2012-13, para. 111 Back
16
Clause 8(3) Back
17
http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/legislative-scrutiny-2012-13/growth-and-infrastructure-bill/ Back
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