Proposal for a draft Human Rights Act 1998 (Remedial) Order 2019 Contents

2Procedural Requirements

Compelling Reasons and Use of the Remedial Power

25.A Minister may only use the remedial power under the HRA to amend primary legislation if that Minister considers that there are “compelling reasons” to do so. The Government’s reasons for using a Remedial Order are set out in the statement of required information in the Paper which accompanies the proposed draft order.

26.The “compelling reasons” cited by the Government include the need to implement judgments of the ECtHR swiftly, the nature of the breach, the fact that this breach requires an amendment to primary legislation and that the current legislative programme offers no prospect of a suitable primary legislative vehicle (meaning that waiting for a Bill would be likely to cause significant delay).

27.We are grateful for the information provided by the Ministry of Justice as part of the “required information”15 and overall consider that these are indeed good compelling reasons to proceed by Remedial Order.

Use of the Non-Urgent Procedure

28.Remedial Orders can be made by urgent or non-urgent procedure. The Government’s reasons for proceeding by way of the non-urgent procedure are set out in the information accompanying the proposed draft Order.

29.The Government notes that it is not aware of any individuals who are affected by the incompatibility which this proposed Remedial Order seeks to remove and do not anticipate any similar cases in the near future. This seems to be despite a couple of cases against the United Kingdom raising Article 13 issues that are pending before the ECHR at present, including the case referred to in the evidence submitted by the Howard League for Penal Reform.16

30.The information provided by the Ministry of Justice is helpful in relation to the use of the non-urgent procedure. Balancing the significance of the rights, the impact on the individuals affected, the small number of individuals affected and the need to legislate in an open and transparent manner that allows appropriate opportunity for debate and discussion, the Government considers that the non-urgent process is most appropriate. There reasons are persuasive.

31.Overall, we are satisfied that there are compelling reasons to proceed by Remedial Order and that this is a valid use of the remedial power.

32.More specifically, Committee considers that the non-urgent procedure strikes a reasonable balance between the competing considerations of the need to avoid undue delay in remedying the incompatibility with human rights standards and the need to afford a proper opportunity for parliamentary scrutiny of changes to primary legislation. However, in its response to this Report, it would be useful for the Government to explain why it does not consider other individuals to be affected by the incompatibility and does not anticipate other similar cases in the near future. This is of particular interest given separate information received that other similar cases are being brought to the ECtHR in relation to the non-availability of adequate effective remedies for breaches of rights under the ECHR (Article 13 ECHR), including by other types of judicial acts made in good faith.

15 As required by paragraph 3 of Schedule 2 to the Human Rights Act 1998.

16 Howard League for Penal Reform (RHA0001), at paras 4.6 and 5.1.

Published: 21 November 2018