1.In our view, the proposed draft Order adequately remedies the incompatibility of the 2013 Act with Article 6(1) as identified in the case of Reilly (No.2). We therefore recommend that the proposed draft Order be approved.
2.We consider that the procedural requirements of the HRA have been met and the Government’s reasons for proceeding by way of remedial order rather than by a Bill are sufficiently compelling for the purpose of section 10(2) of the HRA. Further, remedying the incompatibility by way of a non-urgent order strikes a reasonable balance between avoiding any further undue delay on the one hand, and the need for proper parliamentary scrutiny on the other. The Committee does, however, regret the delay between the declaration of incompatibility in April 2016 and the laying of the proposed draft order in June 2018. (Paragraph 31)
3.By enacting retrospective legislation to validate the 2013 Act and remove a right of appeal from claimants whose appeals were pending, the Government breached the Article 6 rights of these claimants. The proposed draft Remedial Order seeks to remedy the incompatibility of the 2013 Act with Article 6 by providing that the decision-maker (the Secretary of State or Tribunal) must ignore the provisions of the 2013 Act that retrospectively validate the 2011 Regulations for those whose cases were pending before a Court when the 2013 Act entered into force. In doing so, the proposed draft Order restores to the claimants their right of appeal. In our view, the proposed Remedial Order adequately remedies the incompatibility of the 2013 Act with Article 6(1) as identified in the case of Reilly (No.2). We recommend that the proposed Remedial Order be approved. (Paragraph 44)
Published: 31 October 2018