4 Declarations of Incompatibility
by UK courts
The statistics
4.1 The number of declarations of incompatibility
made by UK courts under the Human Rights Act has also diminished
significantly over the course of this Parliament. Since the Human
Rights Act came into force on 2 October 2000, UK courts have made
29 declarations of incompatibility, of which 20 have become final.
During the 2010-2015 Parliament, however, only three declarations
of incompatibility have been made, and one of those is still subject
to appeal.
4.2 We draw to Parliament's attention the strikingly
small number of declarations of incompatibility made by UK courts
under the Human Rights Act during the lifetime of this Parliament,
which confirms the significant downward trend in the number of
such declarations since the Human Rights Act came into force in
2000.
Declarations of incompatibility
during the 2010-2015 Parliament
The right to a fair hearing
before the Independent Safeguarding Authority
4.3 We scrutinised the Government's response to the
first declaration of incompatibility made during this Parliament
in our Report on the Protection of Freedoms Bill.[42]
The declaration concerned a Convention incompatibility in the
legal framework on safeguarding vulnerable groups identified by
the High Court in the case of Royal College of Nursing v Secretary
of State for the Home Department.[43]
The court in that case declared the relevant provisions of the
Safeguarding Vulnerable Groups Act 2006[44]
to be incompatible with the right to a fair hearing and the right
to respect for private life to the extent that they provide that
individuals' representations are not considered before their names
are included by the Independent Safeguarding Authority on the
barred list. The Act provided for such representations to be made
only after the individual has been included on the list.
4.4 The Protection of Freedoms Act amended the provisions
of the Safeguarding Vulnerable Groups Act 2006 which provide for
a person's inclusion on the children's or adults' barred list
subject to consideration of representations, by requiring the
Independent Safeguarding Authority to give the person the opportunity
to make representations as to why they should not be included
in the barred list, before they are so included. We welcomed the
amendment which in our view remedied the incompatibility identified
in the court's declaration of incompatibility in the Royal
College of Nursing case.
DISCLOSURE OF CONVICTIONS AND CAUTIONS
4.5 The second declaration of incompatibility made
during this Parliament concerned the legal framework for the disclosure
of convictions and cautions. The Court of Appeal declared the
relevant provisions of the Police Act 1997 and the Rehabilitation
of Offenders Act 1974 (Exceptions) Order 1975 to be incompatible
with the right to respect for private life in Article 8 ECHR on
the grounds that blanket disclosure of all cautions and convictions
is disproportionate.[45]
On appeal, the Supreme Court substantially upheld the declaration
of incompatibility in respect of the Police Act 1997.
4.6 The Government's response to the declaration
of incompatibility made by the Court of Appeal was to make changes
to the Exceptions Order by way of secondary legislation, so that
some spent convictions and cautions would not need to be disclosed.[46]
We regret that the relevant secondary legislation making the amendments
was not drawn to our attention by the Government at the time of
its introduction and we therefore did not have the opportunity
to scrutinise it and to report to Parliament on whether in our
view it remedied the incompatibility with the Convention which
had been identified by the Court of Appeal.
4.7 We do not have the resources to monitor all statutory
instruments which are laid before Parliament and we are therefore
dependent on the Government to draw to our attention any statutory
instruments which have significant human rights implications.
A statutory instrument which is designed to remedy an incompatibility
with a Convention right which has been identified by a Court is
clearly such an instrument. Indeed, if such changes are made by
way of a remedial order under the Human Rights Act, we are the
Committee charged with scrutinising such an instrument and our
Standing Orders prescribe a strict timetable which requires us
to prioritise such work over all our other work. We are therefore
concerned by the fact that the secondary legislation designed
to respond to this declaration of incompatibility was not drawn
to our attention by the Government. We recommend that in future
the Government always draws such instruments to the attention
of this Committee, to ensure that Parliament receives the advice
of its expert human rights committee about whether the instrument
remedies the incompatibility identified by the courts.
4.8 We note that the case of MM v UK, which
concerned very similar questions about the adequacy of the legal
framework for the disclosure of criminal records in Northern Ireland,
is still under supervision by the Committee of Ministers,[47]
and that cases concerning the retention of data about individuals
by the police continue to reach the Supreme Court.[48]
We expect that the compatibility with the right to respect for
private life of the legal framework for the retention and disclosure
of criminal record information and other personal data held by
the police, in the light of recent and forthcoming judgments of
the European Court of Human Rights and the UK Supreme Court, will
continue to be an issue for our successor Committee in the new
Parliament.
RETROSPECTIVE FAST-TRACK LEGISLATION
4.9 The third and last declaration of incompatibility
during the current Parliament concerned the Jobseekers (Back to
Work Schemes) Act 2013. The Act reversed a judgment of the Court
of Appeal which had quashed certain "Back to Work Schemes"
Regulations on the grounds that they were outside the scope of
the statutory power to make such regulations. The effect of the
Act was retrospectively to validate the regulations which had
been quashed, while the Government's appeal against the Court
of Appeal's judgment was still pending before the Supreme Court.
The High Court declared the Act to be incompatible with the right
of access to court in Article 6(1) ECHR.[49]
4.10 The declaration of incompatibility is not yet
final because the Government has appealed against the judgment
to the Court of Appeal. We do not report on declarations of incompatibility
until they have become final and we therefore do not deal with
this judgment in this Report; that will be a matter for our successor
Committee in the new Parliament if the declaration becomes final.
However, we do draw to Parliament's attention in the meantime
the fact that the fast-track nature of the legislation deprived
us of an opportunity to report on the Bill as it passed through
Parliament.
4.11 The Bill was introduced in the House of Commons
on 14 March 2013 and completed all its stages in both Houses on
25 March. As we pointed out in an earlier Report reviewing some
of the lessons to be learned about legislative scrutiny for human
rights compatibility during this Parliament,[50]
this did not afford us the opportunity to report to Parliament.
However, we did express in correspondence with the Minister serious
concerns about the compatibility of the Bill with the ECHR, including
with the right of access to a court and to a fair hearing in Article
6 ECHR: the very grounds on which the High Court subsequently
held the Act to be incompatible with the Convention.[51]
We draw this correspondence to Parliament's attention, and
to the attention of our successor Committee in the event that
the declaration of incompatibility becomes final.
Implementation of earlier declarations
of incompatibility
4.12 As we pointed out in chapter 1 above, during
this Parliament we have also scrutinised and reported on two remedial
orders the purpose of which was to remedy Convention incompatibilities
identified in declarations of incompatibility made by UK courts
during the last Parliament: those concerning the statutory scheme
requiring those subject to immigration control to obtain permission
to marry, and the lack of an opportunity for independent review
of indefinite sex offender notification requirements.[52]
4.13 There is therefore only one outstanding declaration
of incompatibility where the Government has yet to remedy the
incompatibility: that concerning the statutory disqualification
of serving prisoners from voting in parliamentary elections.[53]
That declaration was made more than eight years ago. We have
dealt with the issue in chapter 3 above. The simple statutory
amendment that we recommended there, to give effect to the recommendations
of the Joint Committee on the Draft Prisoner Voting Bill, would
remedy the incompatibility identified in the declaration of incompatibility.
42 Eighteenth Report of Session 2010-12, Legislative
Scrutiny: Protection of Freedoms Bill, HL Paper 195/HC 1490,
paras142-143. Back
43
[2010] EWHC 2761(Admin). Back
44
Paragraphs 2 and 8 of Schedule 3 to the Act. Back
45
R (on the application of T, JB and AW) v Chief Constable of
Greater Manchester, Secretary of State for the Home Department
and Secretary of State for Justice [2013] EWCA Civ 25. Back
46
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment)
(England and Wales) Order 2013. Back
47
See above, para. 3.10. Back
48
See e.g. R (Catt) v Commissioner of Police of the Metropolis
and R (T) v Commissioner of Police of the Metropolis [2015]
UKSC 15 (4 March 2015). Back
49
R (on the application of Reilly (no. 2) and Hewstone) v Secretary
of State for Work and Pensions [2014] EWHC 2182. Back
50
Ninth Report of Session 2012-13, Legislative Scrutiny Update,
HL Paper 157/HC 1077, paras 33-39. Back
51
http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/legislative-scrutiny-2012-13/jobseekers-back-to-work-scheme-bill/
Back
52
See above para . 1.7. Back
53
Smith v Scott [2007] CSIH 9.The Supreme Court in Chester
and McGeoch applied the principles established in the judgments
of the European Court of Human Rights in Hirst (no. 2) and Scoppola
(no. 3), and therefore upheld the European Court's position
that the current UK law is incompatible with the Convention, but
declined to make a further declaration of incompatibility. Back
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