ANNEX
1
HUMAN RIGHTS BILL [HL]
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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