2The Government’s draft Order and its response to our first Report on the proposal for a draft Order
Government’s response to our first Report on the proposal for a draft Order
8.In our first Report, we considered that the procedural requirements of the HRA had been met—the Government’s reasons for proceeding by way of remedial order were sufficiently compelling and that using the non-urgent procedure struck a reasonable balance. However, we noted that the Government had not sufficiently explained why other Bills announced in the legislative programme could not be used to legislate for this topic.13 We also encouraged the Government to minimise the impact of this discrimination on those people affected pending the entry into force of these amendments.
9.In Chapter 3 of our first Report, we raised concerns about the application of the good character requirement to children and, in particular, the discriminatory application of this requirement to children who had already been discriminated against. We consider this further in Chapter 3 of this Report.
10.In Chapter 4 of this Report, we follow-up on three responses from the Home Office where we consider that clearer and fairer policies would assist in remedying the situation of individuals who have previously been discriminated against.
11.In Chapter 5 of this Report, we follow-up on the issue of discrimination in relation to British Overseas Territories Citizenship.
12.In our first Report, we recommended that the Home Secretary should introduce a Bill of wider scope, at the first available opportunity, to remove all remaining discrimination in British nationality law, given the other discriminatory provisions that appear to remain on the face of British nationality legislation. In particular, in Chapter 5 of our first Report, we raised a number of examples of such discrimination that were apparent on the face of British nationality legislation. The Government’s response is that it acknowledges the concerns raised by the Committee, it will monitor any remaining potentially unlawful discriminatory aspects of nationality legislation and will consult if it becomes apparent that further changes are necessary.14
13.The Government should act without delay to ensure a fair, non-discriminatory approach to UK nationality law that is also in line with the rights of the child.
Statement of ECHR compatibility
14.We note that the Government’s “Statutory Instrument Practice” Guide15 provides in paragraph 2.12 that an ECHR compatibility statement “should always be made regarding secondary legislation which amends primary legislation”. It requires that such a statement should be included in the Explanatory Memorandum accompanying a statutory instrument.
15.We would therefore expect the usual formulation for the ministerial statement to record that the Minister considered that the Order “is compatible with Convention rights”. We note that in the version of the Explanatory Memorandum accompanying the previous proposal in 2018, the ministerial statement said that the provisions of the Order made “citizenship law compatible with the Convention and address the historic discrimination identified by the Supreme Court”. However, in the Explanatory Memorandum accompanying the draft Order, the statement omits any reference as to whether or not the Minister, Caroline Nokes, considers the Order to be compatible with human rights. It simply says: “In my view the provisions of the British Nationality Act 1981 (Remedial) Order 2019 address the historic discrimination identified by the courts”.16 Although the Home Office undoubtedly meant to be helpful, straying from standard wording can cause confusion as to whether or not the Minister considers that the Order is compatible with human rights. Home Office officials have informally confirmed that the Minister does consider the Order to be compatible with human rights and is prepared to clarify that in a statement of compatibility.
16.We expect to receive clear Ministerial statements of compatibility for all remedial Orders. Ministers should make a clear statement of compatibility reflected in the Explanatory Memorandum accompanying all remedial orders. In relation to this Order, the Minister should reissue the Explanatory Memorandum with a corrected, clear statement of compatibility.
Does the draft Order remedy the incompatibility?
17.The draft Order does remedy the incompatibilities identified in the two judgments—even if related parts of British nationality law require further legislative and policy action to address wider human rights issues, relating to rights of the child and non-discrimination. However, there are risks that the approach taken to children who were discriminated against but who are over the age of ten (or who are adults) by the time the discrimination is removed, perpetuates that discrimination.
18.We consider that the procedural requirements of the Human Rights Act 1998 for the use of the remedial power have been met in this case and consider that the draft Order remedies the incompatibility identified by the Courts.
19.The Committee concludes, after taking into account representations made, that the special attention of each House is not required to be drawn to the draft Order on any of the relevant grounds, or on any other grounds. However, elsewhere in this Report, we do highlight related concerns in relation to British nationality law.
20.We consider that there are no reasons why this Order should not be agreed to by both Houses of Parliament. We therefore recommend that the draft Order should be approved.
13 The Home Office have subsequently informed the Committee that there are not any relevant Bills suitable as legislative vehicles for which the amendments relating to these declarations of compatibility would be within scope.
14 In relation to the recommendation for consolidation for improved accessibility of British nationality law, the Government response was slightly different in that the Government states that it “will consider consultation when a suitable legislative vehicle has been identified” (see paragraph 32 of the Government response).
15 The National Archives, Statutory Instrument Practice, 5th edition, January 2017
Published: 9 July 2019