26.Since remedial orders are a type of delegated legislation which can be used to amend statutes, there are controls on their use. A Minister may only use the remedial power under the HRA 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.
27.The “compelling reasons” cited by the Government include the need to address instances of discrimination swiftly, 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).
28.We are grateful for the information provided by the Home Office as part of the “required information” and overall consider that these are indeed good reasons. In particular, we welcome the point that “the Government takes discrimination seriously and is of the view that instances of [discrimination] should be remedied swiftly”.
29.We note that the Home Office’s view is that “the legislative programme as currently foreseen offers no prospect of a suitable primary legislative vehicle in which these changes could be included”. In a letter dated 18 April 2018, we asked the Home Office for further clarification as to why the changes envisaged would not fall within the scope of the legislation announced in the Queen’s Speech to establish “new national policies on immigration”. The Minister for Immigration replied by letter to the Chair on 4 May 2018 that:
“the Government takes its obligations in relation to the European Convention of Human Rights seriously and is committed to remedying the incompatibility identified at the earliest opportunity. Given the courts’ decisions last year in the case of Johnson and the application of David Fenton Bangs, we did not want to risk any further delay”.
30.While we welcome the Government’s commitment to the European Convention of Human Rights and to addressing incompatibilities without undue delay, we note that the Government did not offer an explanation specifically as to why it had not considered (or, perhaps, had considered but dismissed) using this session’s announced Immigration Bill. Generally, the Committee would be cautious about the use of a remedial power where a topical Bill was imminent and would have expected a more convincing and specific response from the Minister to this question concerning the Immigration Bill. We are therefore left in a somewhat awkward position as to whether we consider that there are “compelling reasons”, given the absence of a fuller explanation from Home Office Ministers as to the potential use of the Immigration Bill.
31.Moreover, some of those giving written evidence noted concerns about wider discrimination on the face of British nationality legislation which could also benefit from being rectified as part of a Bill. We share many of these concerns, as we highlight later in this Report.
32.These concerns do not necessarily mean that a remedial order would not be appropriate. Notably, we understand that the Immigration Bill could well take some time and is some way off introduction. Moreover, this would seem to be confirmed by the Immigration Minister’s concern not to “want to risk any further delay” when she replied to this point. Overall, given the pressing need to address the discrimination identified in Johnson and David Fenton Bangs there do seem to be compelling reasons to proceed by remedial order. However, it does suggest that there is scope for the Home Secretary to use the forthcoming Immigration Bill to address remaining discrimination in British nationality law—and possibly also to consolidate and bring clarity to the existing law.
33.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.
34.The Government notes that 16 cases have been placed on hold since the judgment in Johnson, although the Government recognises that the actual number of people impacted may be greater. The Government also notes the significance of the rights affected by the incompatibility. Balancing the significance of the rights, the impact on the individuals affected, the small number of cases on hold 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.
35.Much of the information provided by the Home Office is helpful in relation to the use of the non-urgent procedure. However, the Committee notes that whilst the Home Office has referred to the impact on individuals concerned being a factor, it has not provided any further information as to what constitutes that impact. The Committee has previously called on Departments to include within this information some consideration of, and information as to, the impact on the individuals concerned. For example, paragraph 50 of the first Report on the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Remedial) Order 2010 provides that “full information on the ongoing impact of a violation subject to a proposal for a remedial Order [ … ] should always be included with the required information prepared”.
36.In the letter from the Chair to the Home Secretary dated 18 April 2018, we asked for an explanation from the Home Office as to the impact of the current violation on the individuals concerned. In the response dated 4 May 2018, the Immigration Minister noted:
“the impact of the incompatibility means that certain individuals who the courts have identified have a right to British citizenship are not able to make an application to do so until the legislation is amended. The continuing incompatibility will mean that they are unable to obtain a British passport and the benefits which are gained from British citizenship. Where we have been made aware of individuals affected by the incompatibility who do not have an immigration status we have taken action to put them in a comparable position by granting indefinite leave to remain. This will ensure that they can work in the UK and are able to access public funds. For individuals who are overseas the impact may be on their ability to come to the UK. Where we are made aware of individuals affected, we will consider their individual circumstances on a case-by-case basis.”
37.We welcome this further information and some of the assurances it gives as to the intended treatment of those affected pending the entry into force of this proposed Remedial Order. We encourage the Home Office to minimise the impact of this discrimination in any of its decision-making.
39.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. Further, we welcome some of the explanations that the Home Office has given as to the intended treatment of those affected pending the entry into force of those amendments and we encourage the Home Office to minimise the impact of this discrimination on those people in any of its decision-making.
40.As we describe later in this report, other discriminatory provisions appear to remain on the face of British nationality legislation. It would be beneficial for the Home Secretary to introduce a Bill of wider scope to remove all remaining discrimination in British nationality law—and which could consolidate and bring clarity to the existing law. We recommend that the Government bring forward the necessary legislation to remedy this remaining discrimination at the first available opportunity.
29 As required by of Schedule 2 to the Human Rights Act 1998.
30 Joint Committee on Human Rights, Fifth Report of Session 2010–11, , HL Paper 54, HC 599
Published: 31 May 2018