Select Committee on Delegated Powers and Deregulation Thirty-Third Report



Memorandum by the Home Office

1.    This memorandum is provided by the Home Office. It provides details of those Commons amendments which amend the provisions of the Bill which confer power to make delegated legislation.

Clause 1: Power to amend the Act to reflect the effect of a protocol

2.    Clause 1(4) confers power on the Secretary of State to make such amendments to section 1 or Schedule 1 as he considers appropriate to reflect the effect of a protocol, in the event of the United Kingdom ratifying a protocol to the European Convention on Human Rights for which further effect in domestic law is appropriate.

3.    In that event it would also be necessary to amend section 21(1) so as to insert a reference to the new protocol. Accordingly a wider power will be needed than that conferred by clause 1(4). Amendment 3 achieves this by substituting a reference to this "Act". This is consistent with the wording of equivalent provisions in clause 15(5) and 16(7) in relation to designated derogations and reservations.

Clause 2: Rules about the giving of evidence of Strasbourg judgments, decisions, declarations and opinions

4.    Clause 2(1) requires a court or tribunal determining a question which has arisen in connection with a Convention right to take into account any judgment, decision, declaration or opinion of the Convention institutions in Strasbourg. Clause 2(2) provides that evidence of judgments etc is to be given in proceedings before a court or tribunal in such manner as may be provided by rules. Clause 2(3) provides that rules for the purposes of clause 2 means rules of court, or, in the case of proceedings before a tribunal, rules made:

    by the Lord Advocate or Secretary of State, in relation to proceedings in Scotland;

    by the Lord Chancellor or Secretary of State, in relation to any other proceedings.

5.    Amendments 5, 6 and 7 amend clause 2(3). Amendment 6 removes the reference to the Lord Advocate from clause 2(3)(a). This is a consequence of the devolution arrangements for which provision is made in the Scotland Bill. Under the Scotland Bill, the Lord Advocate will cease to be a member of the United Kingdom Government and will become a member of the Scottish Executive shortly after it is established. Any powers which the Lord Advocate has to make subordinate legislation will be transferred either to Scottish Ministers or to the Secretary of State for Scotland, depending on whether they relate to devolved or reserved matters. These include the power to make procedural rules for tribunals under clause 2(3)(a) of the Human Rights Bill.

6.  Clause 2(3) at present does not take account of the position in Northern Ireland whereby, as a matter of convention, rules for some tribunals in Northern Ireland which deal with Northern Ireland matters are made by Northern Ireland departments rather than by Ministers. Amendments 5 and 7 amend clause 2(3) so as to provide for rules to be made by Northern Ireland departments in relation to proceedings before a tribunal in Northern Ireland which deals with "transferred matters" (as defined in the Northern Ireland Act 1998 - see amendment 53 to clause 21). They do so in a way which preserves the power of the Lord Chancellor or Secretary of State to make rules for tribunals which apply in Northern Ireland. They also ensure that if the Lord Chancellor or Secretary of State exercised that power, the rules they made would take precedence over the equivalent rules made by a Northern Ireland department.

Clause 7: rules concerning proceedings against public authorities

7.  Clause 7(2) provides for rules to be made concerning the appropriate court or tribunal before which proceedings may be brought against a public authority under clause 7(1)(a) for an alleged unlawful act. Clause 7(11) defines "rules" for the purposes of clause 7 as:

    rules made by the Secretary of State, in relation to proceedings before a court in Scotland;

    rules made by the Lord Advocate or the Secretary of State, in relation to proceedings before a tribunal in Scotland;

    rules made by the Secretary of State or Lord Chancellor in relation to proceedings before any other court or tribunal, or rules of court.

8.  Amendments 18 and 20 combine sub-paragraphs (a) and (b) and remove the reference to the Lord Advocate. This is for the same reason as amendment 6 in relation to clause 2 (see paragraph 5 above).

9.  Amendments 17 and 21 amend clause 7(11) so as to make provision for rules made by Northern Ireland departments. These amendments are equivalent to those made to clause 2(3) by amendments 5 and 7 (see paragraph 6 above). Amendment 19 is a drafting change which is consequential on amendment 17.

10.  Clause 7(13) provides that the Minister who has power to make rules in relation to a particular tribunal may by order give that tribunal jurisdiction to determine such questions arising in connection with the Convention rights, or to grant in respect of acts or proposed acts of public authorities which are or would be unlawful such relief or remedy of a kind that it has power to grant, as he considers appropriate. It is designed for cases where the grounds on which proceedings may be brought before a tribunal are extremely narrowly defined and, if left untouched, would preclude that tribunal from determining issues relating to the Convention rights. The only known example of where it might be needed (which was identified during the Lords proceedings on the Bill) concerns special adjudicators determining appeals in asylum cases under the Asylum and Immigration Appeals Act 1993. By virtue of clause 20(4), the power to make an order under clause 7(13) is to be subject to the draft affirmative resolution procedure. These provisions were inserted into the Bill by Government amendments at Lords Report stage on 19 January 1998.

11.  Concern was expressed after the Bill left the Lords that clause 7(13) might have an unintended effect. It was thought that the wording might be misread as preventing any tribunal from considering the Convention rights unless and until a Minister made an order under clause 7(13). Amendment 22 redrafts the provision in such a way as to achieve the same effect as the existing provisions whilst removing that ambiguity.

12.  Amendment 23 provides that the reference to "the Minister" in clause 7(13) includes the Northern Ireland department concerned. Since the rules in question might be tribunal rules made by a Northern Ireland department, it would be appropriate for that department to be able to make such an order.

Clauses 10, 11 and 12 - remedial orders

13.  At present, clause 10(2) provides that, if a Minister of the Crown considers it appropriate to amend legislation using the power conferred by this subsection, he may by order (a "remedial order") make such amendments to it as he considers appropriate. Amendment 27 removes this term from clause 10(2). Instead it requires there to be compelling reasons for proceeding under clause 10(2), and it limits the amendments that may be made to those which are necessary to remove the incompatibility. The purpose of this amendment is to restrict the circumstances in which a remedial order may be made. Amendments 28 and 29 make equivalent provision in clause 10(3).

14.  The procedures for making remedial orders are currently set out in clauses 11 and 12. Amendments 34 and 35 remove these clauses from the Bill. Amendment 60 inserts a new schedule into the Bill (Schedule 2) which reproduces the provisions of clauses 11 and 12 but with certain modifications. It was thought that the provisions would be easier to read and understand if they were in one place, and also that since they were procedural in nature it would be more appropriate for them to be in a schedule. Amendment 31 is a consequential drafting amendment.

15.  The modifications made in Schedule 2 by amendment 60 are intended to provide a greater opportunity for Parliamentary scrutiny of remedial orders or draft remedial orders. Schedule 2 describes the different procedures for non-urgent and urgent orders. It provides essentially for a 60-day period of consideration during which representations on an order or proposed draft order may be made, followed by a further 60-day period after which a non-urgent order may be made if Parliament approves it, or an urgent order which has been made expires if Parliament does not approve it. As far as non-urgent (draft) remedial orders are concerned, the procedure is modelled on the procedure for orders amending primary legislation under the Deregulation and Contracting Out Act 1994.

16.  In the case of non-urgent orders, paragraph 3 of Schedule 2 provides for a document containing a draft of the proposed order (and other information relating for example to the incompatibility which it is sought to remove) to be laid before Parliament for a minimum period of 60 days. After that the draft order itself may be laid before Parliament together with a summary of any representations received in that period and details of any changes made to the proposed order. Under paragraph 2(a) of Schedule 2, a further 60 days must then elapse before Parliament approves the draft order and it is actually made.

17.  In the case of urgent orders made without first being approved in draft (paragraph 2(b) of Schedule 2), the order must under paragraph 4 of Schedule 2 be laid before Parliament after it is made together with the required explanatory information. If any representations are made on the order within 60 days of it being made, a summary of the representations must be laid before Parliament together with details of any changes proposed as a result. If changes are proposed, a replacement order must be made and laid before Parliament. The original or replacement order ceases to have effect if not approved within 120 days of the original order being made.

18.  The purpose of having two 60-day periods is to provide an opportunity for representations to be made on the Government's proposals when laid in the form of a document containing a draft order, and then to provide an opportunity for consideration of the actual draft order including any changes made as a result of representations, before the motion to approve the draft order is debated. The same reasoning applies in the case of urgent orders. The procedure was devised in response to concern expressed during the Lords proceedings on the Bill that Parliament should not only be able to scrutinise a remedial order (or draft) but should be able to propose changes to it.

19.  Amendment 32 removes clause 10(6)(a) from the Bill. Clause 10(6)(a) defines "amendments" for the purposes of clause 10 as including repeals and the application of provisions subject to modifications. It is unnecessary because amendment 42 to clause 21 defines it for the purposes of the Bill as a whole.

Clause 20: provision for rules and orders

20.  Amendments 5, 7, 17, 19, 21 and 23 make provision in clauses 2 and 7 for rules and orders to be made by a Northern Ireland department rather than a Minister of the Crown (see paragraphs 6, 9 and 12 above). As a consequence of these amendments it is necessary to make provision for the procedure by which rules and orders under the Bill are to be made by a Northern Ireland department. Since these rules will relate to transferred matters, they should be subject to negative or affirmative resolution of the Northern Ireland Assembly, not at Westminster. Accordingly amendment 41 inserts new subsections into clause 20 providing for the power to make such rules and orders to be exercisable by statutory rule, and to be subject to negative resolution of the Assembly (rules under clause 2(3) and clause 7(11)), or approval by the Assembly (orders under clause 7(13)). The type of procedure - negative resolution for rules under clause 2(3) and 7(11), draft affirmative resolution for orders under clause 7(13) - is the same as prescribed in clause 20(2) and (4) for rules and orders under these provisions which are made by Ministers.

21.  Amendments 38, 39 and 40 make it clear that the other orders and rules mentioned in clause 20 are orders and rules made by a Minister of the Crown, or by the Lord Chancellor or Secretary of State, as appropriate.

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