226.The terms of reference for IHRAR includes a question on the remedial Order process, which was also replicated in IHRAR’s own call for evidence:
Box 11: IHRAR call for evidence: Remedial Orders
Should the remedial order process, as set out in section 10 of and Schedule 2 to the HRA, be modified, for example by enhancing the role of Parliament?
Source: IHRAR, Independent Human Rights Act Review: Call for evidence
227.The Government may take action to remedy an incompatibility in the law identified in a declaration of incompatibility or following a judgment of the ECHR. They do this usually either by introducing a Bill to Parliament or by way of the remedial order process provided under section 10 HRA.
228.Section 10 HRA provides a specific procedure for remedying legislation that has been declared incompatible with Convention rights. It permits a Minister to make a statutory instrument called a remedial order amending the legislation in a way considered necessary to remove the incompatibility. Such remedial orders are subject to much greater scrutiny than many other forms of secondary legislation, including statutory instruments that may have a wide-ranging impact on human rights as we have seen during the pandemic.
229.The remedial power can only be used where “there are compelling reasons for proceeding under this section” rather than taking a normal legislative route. This requirement for “compelling reasons” means that remedial orders cannot be used when scrutiny by parliament of primary legislation in the form of a Bill is what is required.
230.Where there are “compelling reasons”, schedule 2 of the HRA provides that remedial orders can be made either by way of the standard procedure or an emergency procedure:
a)Under the standard procedure, a draft of the proposed order (complete with some background information) is laid for a period of 60 days, during which period the JCHR undertakes an inquiry and produces a Report. After this period of 60 days, a draft of the order (including any amendments that were considered appropriate e.g. following the JCHR Report) can be laid before Parliament, together with a summary setting out any representations made and whether any changes were made following those representations. The JCHR then produces a second Report on this draft Order and then, using the JCHR’s Report to help to inform debate, the Order is subject to approval by a resolution of each House of Parliament before coming into force.
b)Under the emergency procedure, the order is made without approval by Parliament. But the ‘made order’ is then laid before Parliament (complete with background information), similarly to the standard procedure. The JCHR then produces a Report in the same way as for a standard procedure remedial order. The “made order” (or a “replacement order” if changes have been made to the original made order following representations) must then be approved by both Houses of Parliament within 120 days or it will cease to have effect. Again, the debates in both Houses are informed by the JCHR’s Report(s) on the Order.
231.Practice over the last 20 years has shown that the remedial power has been used only rarely and where a topic is not considered controversial. Of the 43 declarations of incompatibility made since 2000, only 8 have been amendedby way of remedial order.
232.The Government department taking a lead on an issue is expected to bring a declaration of incompatibility to the JCHR’s attention. The Ministry of Justice states that it encourages departments to update us regularly on their plans for responding to declarations of incompatibility.
233.Under Commons Standing Order No. 152B and Lords Standing Order No. 72(c) Parliament has given the JCHR a role in scrutinising and reporting on remedial Orders. As set out above, we generally produce two Reports in respect of a remedial Order. For non-urgent remedial Orders–the first Report is produced when the remedial order is laid as a proposal and the second when it is laid in draft. For urgent remedial Orders, the first Report is produced in the 60 day period after it is laid before Parliament and a second Report is normally only produced if necessary (e.g. if changes have been made and there is a replacement order).
234.When undertaking this scrutiny work, we analyse each remedial Order (and draft remedial Order) as against a set of criteria to determine if it meets the procedural requirements as well as carefully considering the substantive changes being introduced. This includes considering whether it is a topic that would be better suited for consideration by Parliament in a Bill. The level of scrutiny given to the provisions of a remedial Order—including the substance of the proposals, as well as their procedural propriety is therefore very significant. Our Reports then inform the subsequent debates and votes by both Houses on the remedial Order in question.
235.Remedial Orders are subject to enhanced scrutiny by the JCHR—which carefully examines remedial Orders for both procedural propriety as well as substance. The ensuing JCHR Reports then inform the subsequent debates and votes by both Houses on the remedial Order in question. Remedial Orders therefore already receive a significant level of scrutiny.
236.In practice, the remedial power is not used for politically sensitive issues and therefore its use has not been seen as controversial. Given pressures on parliamentary time there is very little appetite for requiring stricter procedures and processes for non-controversial matters. There is therefore little need or appetite for a more stringent parliamentary process in respect of remedial Orders.
185 Independent Human Rights Act Review:
186 Independent Human Rights Act Review:
187 A further 3 remedial Orders were made following judgments of the ECtHR. So the total number of remedial Orders is 11. The MoJ state that of the other declarations of incompatibility, 15 have been addressed by primary or secondary legislation (other than remedial orders) and the rest were either overturned on appeal, resolved prior to judgment, addressed by other measures or are still under consideration. See “” Dec 2020, CP 347
188 These criteria are set out by the JCHR when reporting on remedial Orders. See, for example, the Joint Committee on Human Rights, Fifteenth Report of Session 2017–19, , HL Paper 228 / HC 1547: which explains that the Committee generally asks: (i) Have the conditions for using the Remedial Order process (section 10 and Schedule 2 HRA) been met? (ii) Are there “compelling” reasons for the Government to remedy the incompatibility by Remedial Order? (iii) Is the procedure adopted…appropriate? (iv) Has the Government produced the required information and effectively responded to other requests for information from the Committee? (v) Does the proposed order remedy the incompatibility with Convention rights and is it appropriate? For example, is any additional provision contained in the proposed order appropriate and intra vires—and does the proposed order omit additional provisions which it should have contained? (vi) Are the criteria of technical propriety applied by the JCSI satisfied?”
189 The 2001–2002 JCHR addressed what might amount to “compelling reasons” in its report on the “”. Noting expressly that this was not an exhaustive list they suggested: (i) Where the amendment relates to a body of legislation which is under review with a view to major legislative reform in the next few years; (ii) Where the legislative timetable is already fully occupied by other important, or even emergency, legislation; (iii) Where waiting for a slot in the legislative timetable might cause significant delay and the Remedial Order procedure would be likely to cause less delay; (iv) When the incompatibility affects the life, liberty, safety, or physical or mental integrity of the individual - in such cases, there would be ‘compelling reasons’ even if a Remedial Order would achieve only a small acceleration in the process.