Joint Committee On Human Rights Seventh Report


SEVENTH REPORT


The Joint Committee on Human Rights has agreed to the following Report:—

MAKING OF REMEDIAL ORDERS

Introduction

PURPOSE OF THE REPORT

1. The first 'remedial order' under the provisions of the Human Rights Act 1998 has now been made[5] and we have reported on its substance separately.[6] We decided this would be an opportune moment to report to each House on the lessons of this first use of the power. We hope this Report will be useful both to Parliament and to government departments which in future will be required to make further remedial orders.

2. We begin by describing the powers under which, and the process by which, remedial orders are made.[7] We then go on to make some general observations on the exercise of those powers and set out the general principles which this Committee will adopt in scrutinising the use of those powers.

REMEDIAL ORDERS

3. Under the Human Rights Act a Minister has power, in specified circumstances, to make a remedial order in order to remove an incompatibility between domestic law and a Convention right.

4. The trigger for the making of such an order is either a declaration made by a UK court,[8] or where it appears that a decision of the European Court of Human Rights has highlighted an incompatibility in UK law.[9]

5. The Act sets out the procedure for making such remedial orders. There are essentially two routes: the non-urgent, which requires a Minister first to make a proposal for an order and consult upon it, before laying an order in draft before Parliament which is then subject to affirmative resolution procedure; and the urgent procedure, under which the order may be made and laid but ceases to have effect if not approved by both Houses within a specified period.

6. The Joint Committee on Human Rights is required to report to each House, within the various statutory periods set out in the Act, on each proposal for a remedial order, draft remedial order or urgent procedure remedial order laid before Parliament.

Part 1: Powers and Procedures

WHAT IS A REMEDIAL ORDER?

7. A Remedial Order is a form of subordinate legislation which has the power to amend or repeal primary legislation for purposes and in circumstances specified in the Human Rights Act 1998. It is a fast-track method of removing incompatibilities with Convention rights which emerge in the course of litigation in courts in the UK or at the European Court of Human Rights (ECtHR) at Strasbourg. The relevant provisions are contained in sections 4 and 10 of, and Schedule 2 to, the 1998 Act.

POWERS

8. A Remedial Order may make such amendments to the incompatible legislation (and, where the legislation in question is subordinate legislation, to primary legislation which prevents removal of the incompatibility) as the Minister considers necessary to remove the incompatibility.[10] An Order may—

  • amend any primary or subordinate legislation and revoke subordinate legislation;[11]

  • contain such incidental, supplemental, consequential or transitional provision as the person making it considers appropriate;[12]

  • have retrospective effect, save that nobody is to be guilty of an offence solely as a result of the retrospective effect[13] (this allows past victims of an incompatibility to be relieved of its legal consequences);

  • make provision for the delegation of specific functions;[14]

  • make different provision for different cases,[15] allowing (for example) parties to the litigation in which a declaration of incompatibility was made and to other similar litigation, but not other people, to be retrospectively relieved of the effects of the incompatibility.

CIRCUMSTANCES IN WHICH A REMEDIAL ORDER MAY BE MADE.

9. The trigger for giving a Minister the power to make a Remedial Order is either the making of a declaration of incompatibility[16] by a United Kingdom court in respect of legislation,[17] followed by—

  • a written statement by all parties that they do not intend to appeal;
  • or the completion of any appeal process; or the expiry of the time limit for an appeal;

or a finding by the European Court of Human Rights, made after 2 October 2001 in proceedings against the United Kingdom, which makes it appear to a Minister or to Her Majesty in Council that a provision of legislation[18] is incompatible with an obligation of the United Kingdom arising under the European Convention on Human Rights.[19]

10. After one of these events, a Minister may start the process of removing the incompatibility by way of a Remedial Order if, and only if, he or she 'considers that there are compelling reasons for proceeding under this section',[20] that is for using subordinate legislation rather than proceeding by way of a Bill. We have more to say about what we consider such 'compelling reasons' might be below.

URGENT AND NON-URGENT PROCEDURES

11. The Act contemplates two types of Remedial Order, essentially for non-urgent and urgent action, as the case requires.[21]

  • Under the non-urgent procedure, an Order must be laid in draft, and cannot be made until the draft has been approved by affirmative resolution of each House.

  • In urgent cases, an Order may be made before being laid before Parliament, but ceases to have effect unless approved by affirmative resolution of each House within 120 days of being made.

We have more to say below about the circumstances in which the use of the urgent procedure would in our view be appropriate.

THE 'NORMAL' PROCEDURE: NON-URGENT CASES.

12. Unless the circumstances dictate that the urgent procedure is required, the following steps must be followed in making a Remedial Order.

13. The Minister must lay before each House a document which contains—

  • an explanation of the incompatibility which the proposed Order seeks to remove, including particulars of the relevant declaration of incompatibility, finding or order of the United Kingdom court or the European Court of Human Rights;

  • a statement of the reasons for proceeding by way of the Remedial Order procedure, and

  • a statement of the reasons for making an Order in the terms proposed.[23]

14. A period of 60 days, beginning on the day on which the document containing the proposal for a draft Order was laid, must be allowed for representations to be made to the Minister. The period does not include any time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days.[24] Within this period, the terms of reference of the Joint Committee on Human Rights require it to report to each House its recommendation whether a draft order in the same terms as the proposal should be laid before the House.

15. After the expiry of the 60-day period, the next step is for the Minister to lay a draft Order before each House. If representations have been made during the initial 60-day period, the draft Order must be accompanied by a statement containing—

  • a summary of those representations; and

  • details of any changes made to the proposed draft Order as a result of those representations.[25]

No further steps may be taken by the Minister unless the draft Order is approved by an affirmative resolution of each House after 60 days has passed, beginning with the day on which it was laid.[26] The period of 60 days again does not include any time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days.[27]

16. Within the 60-day period, the terms of reference of the Joint Committee on Human Rights require it to report to each House—

  • its recommendation whether the draft Order should be approved; and

  • whether the special attention of the House should be drawn to the draft Order on any of the grounds specified in the standing orders of each House relating to the Joint Committee on Statutory Instruments (JCSI).[28]

17. The grounds on which the JCSI might draw the special attention of each House to an instrument, and therefore on which the JCHR might do so in the case of a draft Remedial Order or a made Remedial Order, are—

  • that it imposes a charge on public revenues (eg in the case of a Remedial Order by requiring the payment of compensation to victims of violations of Convention rights) or requires payments to be made to a public authority;

  • that there is doubt as to whether it is intra vires;

  • that it appears to make unusual or unexpected use of the power under which it is made;

  • that for any special reason its form or purport calls for elucidation;

  • that its drafting appears to be defective.

Two of the grounds as which the JCSI might draw an instrument to the special attention of each House are not relevant to Remedial Orders. These are—

  • that it may have been made in pursuance of an enactment excluding it from challenge in the courts; and

  • that it purports to have retrospective effect when the parent Act does not expressly authorize it (the Human Rights Act does expressly authorize this).

18. After the JCHR has reported, and the 60-day period has expired, a motion may be moved by the Government in each House to approve the draft Order. If, and only if, the draft Order has been approved by resolution of each House, the Minister may proceed to make the order.

THE PROCEDURE IN URGENT CASES

19. If it appears to the Minister that, because of the urgency of the matter, it is necessary to make a Remedial Order without a draft being first approved, the Minister may make the Order immediately. It must be declared in the Order that it appears to the Minister that, because of the urgency of the matter, it is necessary to make a remedial order without a draft being first approved.[29] However, an urgent Order lapses at the end of a period of 120 days starting with the day on which it was made,[30] unless approved by each House of Parliament.

20. Having made an urgent procedure Order, the Minister must lay the Order before each House of Parliament as soon as possible after it is made, accompanied by—

  • an explanation of the incompatibility which the Order seeks to remove, including particulars of the relevant declaration of incompatibility, finding or order of the United Kingdom court or the European Court of Human Rights;

  • a statement of the reasons for proceeding by way of the Remedial Order procedure, and

  • a statement of the reasons for making an Order in the terms proposed.[31]

21. After a period of 60 days starting with the day on which the order was made (not laid before Parliament), the Minister must lay before each House a statement containing—

  • a summary of any representations which have been made to him or her on the Order; and

  • details of any changes the Minister now considers it appropriate to make to the original Order.[32]

If the Minister considers that changes are appropriate, he or she may make a further Order, replacing the original; and must lay any replacement Order before each House.[33]

22. The original Remedial Order, or any replacement Order, lapses if it is not approved by affirmative resolution of each House within the period of 120 days starting with the day on which the original Order was made.[34]

23. During the 120-day period, the Joint Committee on Human Rights is required by its terms of reference under its standing orders to report to each House whether the special attention of the House should be drawn to the order on any of the grounds specified in the Standing Orders relating to the Joint Committee on Statutory Instruments (noted above at paragraph 17). It must also consider whether there appears to have been unjustifiable delay in the publication or laying of the Order, or in notifying the Speaker and Lord Chancellor where the instrument has come into effect before being laid (which is a test only applicable to Remedial Orders if made under the 'urgent' procedure). It is also required to report whether—

  • the Order should be approved in the form in which it was originally laid before Parliament; or

  • the Order should be replaced by a new Order modifying its provisions; or

  • the Order should not be approved.

In practice, the Committee will examine the order during the first 60-day period and report on any changes which it believes are required. This will ensure that its report will be considered by the Minister when making the statement mentioned in paragraph 21 above and, if necessary, when drafting a replacement Remedial Order. If the Committee suggests no change to the original Order, and is content, it will be unlikely to make any further Report, and the Government will be free to move the motion in each House for the Order to be approved. If it recommends changes, or the Minister for other reasons lays a replacement Order, the Committee will report again, later in the 120-day period, in the light of its recommendations and of the Minister's statement about representations and any resulting modifications made to the Order in its replacement.

Part 2: Observations on the Process

INTRODUCTION

24. Having described the process by which Remedial Orders are made and approved by Parliament, and our role in it, we now make some observations on the lessons learned from the experience of making the first of these Orders,[35] and set out some general principles which will guide our consideration of future Remedial Orders. We deal first with the statutory basis for making a Remedial Order. We then look at the procedures of each House for approving them and our role within these. We recommend some minor changes to these. We also offer some guidance and make some recommendations to departments on the practice to be followed in making a Remedial Order.

STATUTORY POWERS

The Trigger for an Order

25. There are two triggers activating the power to make a Remedial Order. The first is a declaration of compatibility by a UK court. The second is a slightly more ill-defined response to a finding of the Strasbourg Court (ECtHR).

26. In relation to the latter trigger, the Government, as a party to all proceedings in Strasbourg against the UK, will know what is going on. We recommend that the responsible Minister should inform the Committee, as a matter of course, of any judgment of the European Court of Human Rights in cases brought against the UK, and provide us with a copy of the judgment. This should be done within a month of the judgment being delivered. Where the Court holds that the United Kingdom has violated a person's Convention rights, the Government should inform the Committee as soon as possible, and in any case within three months of the date of the judgment, of any steps it has taken or intends to take to ensure that similar violations do not occur in the future.

27. There is no great difficulty in establishing when a UK court has triggered the process. A court which is considering making a declaration of incompatibility must give notice to the Crown. The relevant Minister of the Crown (or person nominated by him or her) will be informed, and is then entitled to be joined as a party to the proceedings.[36] The Minister will thus be aware of any potential declaration of incompatibility at an early stage.

28. We recommend that all Ministers inform this Committee of a declaration of incompatibility relating to their responsibilities as soon as it has been made, within 14 days of the court's decision. It would be helpful to the Committee if the Minister could provide at the same time the full text of the declaration in question, together with a copy of the judgment of the court. This would alert the Committee to the issues involved in the case. As well as allowing us to prepare to deal with any Remedial Order or proposal for a Remedial Order which might follow, it would enable us to keep track of action being taken as a result of declarations of incompatibility. Information of this kind will be important to us in reviewing the impact of the Human Rights Act 1998 and the effectiveness of remedies under it, as an aspect of our general responsibility to report on matters relating to human rights in the United Kingdom.

29. A declaration of incompatibility does not trigger the power to make a Remedial Order until anyone who might appeal has stated in writing that he or she does not intend to do so, or the time limit for any appeal against the judgment has expired, or any appeal has been finally determined.[37] Sometimes, the Minister may wish to appeal. In any case, the Minister will be entitled to be informed of any appeal by another party. It will therefore not normally be difficulty to establish whether a party has brought an appeal within the relevant time limit, and,

if so, whether the appeal has been finally determined or abandoned. Where the Minister has decided not to appeal against the making of the declaration of incompatibility, we recommend that he or she should inform the Committee of the reasons for that decision. These might simply take the form of a statement that the Minister accepts the correctness of the judgment of the court concerned.

30. Once the judgment which includes a declaration of incompatibility has become final, we recommend that the Minister should, within a calendar month, inform this Committee of the result of any appeal, and provide a copy of the full text of any declaration of incompatibility made or upheld on appeal, together with a copy of the judgment of the appellate body. We also recommend that, if possible, the Minister should inform the Committee of his or her preliminary view of the appropriate way to proceed in remedying the incompatibility, giving reasons.

31. At this stage in the process in the domestic courts, or within six months of an adverse decision of the Strasbourg Court, the Minister will have to decide whether it is necessary to amend primary legislation in order to remove the incompatibility, and, if it is, whether there are "compelling reasons" for doing so by means of a Remedial Order. Only if he or she considers that there are compelling reasons for doing so may the Minister proceed by way of remedial order.[38] The judgment as to the existence of compelling reasons requires Ministers to take account of a number of factors.

"Compelling Reasons"

32. As a matter of general constitutional principle, it is desirable for amendments to primary legislation to be made by way of a Bill. This is likely to maximize the opportunities for Members of each House to scrutinize the proposed amendments in detail. It would allow amendments to be made to the terms of the proposed amendments to the law during their parliamentary passage. (The procedure under section 10 of and Schedule 2 to the Human Rights Act 1998 does not allow for Parliament directly to amend either a draft remedial order or a remedial order—only to suggest amendments.) It many cases it may be easy to remove an incompatibility by means of a short Bill which could be drafted quickly and passed speedily through both Houses. Such a Bill may often be politically uncontroversial. Proceeding by way of a Bill may result in the incompatibility being removed far more quickly than would be possible using the non-urgent remedial order procedure, which (as we point out in our Sixth Report) could allow eleven months or so to elapse between the making of the declaration of incompatibility and the coming into effect of the necessary amendment to the law. Sometimes there may be good reasons for proceeding by Bill even where the matter is more complex. For example, if it is necessary to establish a regime of inspection, regulation, appeal or compensation in order to remove the incompatibility, or to authorize significant expenditure, in order to provide adequate and continuing safeguards for Convention rights, it might be preferable (constitutionally and practically) for those arrangements to be set out in a Bill rather than effected by way of subordinate legislation.

33. On the other hand, we accept that other factors sometimes militate in favour of using the Remedial Order procedure. We make no attempt to enumerate these exhaustively, but they include the following—


  • The legislative timetable might be fully occupied by other important, or even emergency, legislation. (For example, had it been decided to remedy the incompatibility with the Mental Health Act 1983, sections 72 and 73, by way of a Bill, its passage might well have been significantly delayed by the priority which would probably have been given to the Anti-terrorism, Crime and Security Bill and—perhaps—the Proceeds of Crime Bill as part of a package of anti-terrorism measures.)

  • The need to remedy incompatibilities with Convention rights should be given a high priority. If waiting for a slot in the legislative timetable might cause significant delay (for example, for one of the reasons outlined above), and the Remedial Order procedure would be likely to cause less delay, we take the view that the Minister would be entitled to consider that there were compelling reasons for proceeding by means of a Remedial Order.

  • The need to avoid undue delay is particularly pressing when the incompatibility affects, or might affect, the life, liberty, safety, or physical or mental integrity of the individual. In such cases, we consider that there would be compelling reasons for using the Remedial Order procedure in order to secure even a small acceleration in the speed with which an incompatibility could be removed.

34. Ultimately, the Minister's judgment must balance these (and other) relevant factors in the light of the situation giving rise to the particular incompatibility. The Committee will look to the Minister to ensure that the need to remove incompatibilities as speedily as possible, and factors affecting the impact of the incompatibilities on particular individuals, are given full weight when making the decision. In any case, however, our view is that final decisions about how to remedy incompatibilities should be made no later than six months after the end of legal proceedings.

35. If the Minister decides to proceed by way of Remedial Order, he or she may decide to lay a proposal for a draft Remedial Order, or (under the urgent procedure) to make and then lay a Remedial Order. The choice between these two forms is our next area of consideration.

Urgent or Non-urgent Procedure?

36. We described above the choice of procedures available to Ministers if they do choose to go down the Remedial Order route. We believe it would be helpful for us to set out some considerations which we believe they should take into account in deciding which procedure is appropriate. We consider that the decisive factor should be the current and foreseeable impact of the incompatibility on anyone who might be affected by it.

37. We draw attention to the following as an indicative, but non-exhaustive, list of the type of considerations which are likely to be relevant.

  • The seriousness of the consequences for identifiable individuals or groups from allowing the continuance of an incompatibility with any right. A violation of any right may seriously interfere with, for example, a person's ability to engage in his or her employment, profession, or vocation, or to marry or found a family. Freedom of expression is particularly important to a journalist or broadcaster; personal status may be specially important to someone who wishes to marry or is seeking to settle in the United Kingdom or elsewhere. Where an important aspect of a person's life would be significantly affected by the unnecessary continuance of the incompatibility for a period of months, we consider that it should militate in favour of the use of the urgent procedure to remove the incompatibility.

  • The adequacy of compensation arrangements as a way of mitigating the effects of the incompatibility. Where arrangements are in place which will allow a person to obtain compensation, as a matter of right, for damage suffered as a result of an incompatibility, it may make removal of the incompatibility a less urgent matter. On the other hand, if there is no right to compensation, or the likely level of compensation, or delay in obtaining it, reduces its capacity to mitigate the harmful effects of the incompatibility, we consider that it would strengthen the case for using the urgent procedure.

  • The number of people affected. If the incompatibility affects a significant number of people on a continuing basis, we consider that it would strengthen the case for using the urgent procedure.

  • Alternative ways of mitigating the effect of the incompatibility pending amendment to primary legislation. If there are other ways of mitigating the effects of the continuing incompatibility on people by means such as the use of official discretion or the making of ex gratia payments, we consider that it would make the case for using the urgent procedure less strong, as long as the discretionary arrangements were announced in a publicly accessible way (perhaps giving rise to a legitimate expectation which could be enforced in judicial review proceedings) and implemented reliably.

PARLIAMENTARY PROCESS

38. We described above the process by which Parliament approves Remedial Orders, and our involvement in the process. These are based in a large part on the tried and tested procedure for making Deregulation Orders (and now also Regulatory Reform Orders). On the whole we believe they work well. Indeed, as others have said, this so-called 'super-affirmative' procedure provides a model for making subordinate legislation which is a good one, and should be applied more widely. However, a few minor anomalies have emerged in the process of making the first such Order, flowing from the way in which Schedule 2 to the Human Rights Act 1998 is drafted, which we feel should be drawn to the attention of each House.

Non-Urgent Procedure

39. The non-urgent procedure requires Proposals for Orders to lie before Parliament for 60 days before a draft Order may be laid. This seems to us appropriate, in order that there may be plenty of opportunity for interested parties inside and outside Parliament to make comments which can be taken into account by the Minister when preparing to lay the draft Order, perhaps with revisions, before Parliament to initiate the second period of 60 days. However, where either House sits during a recess, it can have the effect of drastically reducing the time available for scrutiny. Paragraph 6 of Schedule 2 to the Act currently provides—

In calculating any period for the purposes of this Schedule, no account shall be taken of any time during which—

A combination of urgent recalls of Parliament in September and October of 2001, and the five days on which the judicial sittings of the House of Lords occurred in October, cut down the number of days over the summer when the Houses were both adjourned for more than four days. As a result, by the time of our first meeting after the Summer Recess (22 October), only a calendar month remained of this period.

40. This problem could be ameliorated for the future, but it would require an amendment to the Act, to replace the words 'both Houses are' in paragraph 6(b) of Schedule 2 to the Human Rights Act by the words 'either House is'. This is the wording used in the Deregulation and Contracting-out Act 1994 and now in the Regulatory Reform Act, and it is not clear to us why it was not adopted for the cognate provisions in the Human Rights Act.[39] This would mean that the clock would not tick when (for example) the House of Lords has judicial sittings early in October but the House of Commons is not sitting. This would be even more important were the Commons to start sitting in September and the Lords not to follow suit. We recommend an amendment to the Human Rights Act to stop the statutory period running when either House is adjourned for more than four days, and draw the matter to the attention of each House. Our proposed amendment is set out in Annex B.

41. After the first period of 60 days has expired, the Minister may lay a draft Order, taking account of representations received (including any Report of this Committee). At this stage, there is a further period of 60 days for reflection before the two Houses are permitted to decide whether or not to approve the draft Order. This is because paragraph 2 of Schedule 2 to the Human Rights Act 1998, so far as relevant, provides—

No remedial order may be made unless ... a draft of the Order has been approved by a resolution of each House of Parliament made after the end of the period of 60 days beginning with the day on which the draft was laid; ...

42. This period seems to us longer than necessary. It is sensible to provide that the motion for approval must await the report of the Joint Committee on Human Rights on the compliance of the draft Order with the matters noted in paragraphs 16 and 17 above. However, given the previous period of 60 days for representations, at this stage it seems unnecessary to insist on the expiry of the full 60 days before approving the draft Order if the Committee has reported that it would be appropriate to approve the draft Order in the form in which it has been laid.

43. In relation to this and other subordinate legislation, Standing Order No. 72(1) of the House of Lords, provides that draft Orders and made Orders should not be approved until the relevant Committee has reported, as long as the Committee in question reports within the time limits for approving such draft Orders or Orders. The same restriction is applied to draft or made Remedial Orders, subject to the time limits set out in Schedule 2 to the 1998 Act. Thus that House may approve a draft Order of any kind other than a draft Remedial Order as soon as the responsible Committee has reported on it. It seems anomalous to impose a specially long period of inaction in relation to draft Remedial Orders, particularly as they have the beneficent purpose of securing, rather than interfering with, Convention rights. We consider that it would be desirable if paragraph 2(a) of Schedule 2 to the Act could be amended to allow a draft remedial order to be approved at any time after being laid before Parliament, at the same time amending the Standing Orders of the House of Commons to ensure that no resolution for approval could be moved in that House until this Committee had reported. We draw this matter to the attention of each House. Our recommended change to the Act is in Annex B, as are our recommended changes to the standing orders of the House of Commons.

Procedure for Approval in the Commons: Urgent Procedure

44. On the other hand, there is no provision in either the Act or in the standing orders of the House of Commons which prevents the Government moving a motion in that House to approve an urgent procedure Order before the end of the first 60-day period at the end of which it can be replaced, or before this Committee has reported either on an original or replacement Order within the 120-day period allowed in the Act. The clear intention of the Act is to allow time for this Committee to report, but given the tendency for such clear intentions to become honoured more in the breach than the observance over time (for example in relation to annulment motions under the negative procedure under the Statutory Instruments Act 1946), this is a lacuna which we believe should be remedied. We recommend that the standing orders of the House of Commons should be amended to prevent a motion to approve an urgent procedure Order being made before this Committee has reported on it. Our recommended changes to the standing orders of the Commons are in Annex B. We draw this matter to the attention of the House of Commons.

Procedure for Approval in the Commons: Draft Orders

45. Standing Order No. 18 of the Commons sets out special procedure for approval of a draft Deregulation or draft Regulatory Reform Order. No similar provision has been made in respect of Remedial Orders. This means that a draft or made Remedial Order would automatically be referred to a delegated legislation standing committee for debate, and be voted on without debate on the floor of the House, whatever recommendation this Committee might have made. There are no cognate provisions in the standing orders of the House of Lords. Since Remedial Orders can amend primary legislation where there was no express provision in the Act to do so, and since the other aspects of procedure were borrowed from the deregulation order process, we believe that parallel safeguards as those which apply to approval in the House of Commons of draft Deregulation and Regulatory Reform Orders should also apply to the approval of draft Remedial Orders and urgent procedure Remedial Orders. We set out our proposed standing order, together with consequential amendments to S.O. No. 118 and S.O. No. 152B, in Annex B. Their combined effect would be—

  • that no motion could be made to approve a Remedial Order (whether or not in draft) before this Committee had reported to the House on it, provided that we did so within the statutory periods required (already provided for in the Lords' standing orders);

  • that if this Committee recommended against the approval of a Remedial Order (whether or not in draft), the House would first have to resolve to disagree with our recommendation (in a debate lasting no more than three hours) before it could approve the Order (by analogy with the safeguard applied to deregulation and regulatory reform orders by S.O. No. 18) .

Procedure for Approval in the Commons: The Role of the JCSI

46. Although the standing orders of the House of Lords have been amended to exclude Remedial Orders (whether draft or made) from consideration by the JCSI, the parallel provision has not been made in the Commons standing orders.

Conclusion

47. In Annexes to this Report, we set out—

A.   A summary of the Remedial Order procedures;

B.   Our suggested changes to the Human Rights Act and the standing orders of the House of Commons; and

C.   A summary of the recommendations we have made in this Report which apply to the procedures to be followed by Ministers in the case of an incompatibility with Convention rights arising from a judgement of the European Court of Human Rights or a declaration of a domestic court.

We shall draw the contents of Annexes B and C to the attention of the relevant Committees and Ministers.


5   The Mental Health Act 1983 (Remedial) Order 2001, S.I., 2001, No. 3712 Back

6   Sixth Report, The Mental Health Act 1983 (Remedial) Order 2001, HL Paper 57, HC 472 Back

7   For a summary of the process, see Annex A Back

8   And where no appeal is outstanding Back

9   Human Rights Act 1998, Section 10(1)(b) Back

10   Human Rights Act 1998, s. 10(2) Back

11   ibid., Sch. 2, para. 1(2) Back

12   ibid., Sch. 2, para. 1(1)(a) Back

13   ibid., Sch. 2, para. 1(1)(b) and (4) Back

14   ibid., Sch. 2, para. 1(1)(c) Back

15   ibid., Sch. 2, para. 1(1)(d) Back

16   That is, a declaration under section 4 of the Human Rights Act 1998 that a provision of legislation is incompatible with a Convention right and that primary legislation prevents the removal of the incompatibility (disregarding the possibility of revocation of subordinate legislation) Back

17   'Legislation' does not include a Measure of the Church Assembly or of the General Synod of the Church of England for this purpose: Human Rights Act 1998, s. 10(6) Back

18   'Legislation' does not include a Measure of the Church Assembly or of the General Synod of the Church of England for this purpose: Human Rights Act 1998, s. 10(6) Back

19   Human Rights Act 1998, s. 10(1) Back

20   ibid., s. 10(2) Back

21   Human Rights Act 1998, Sch. 1, para. 2(a), (b) Back

22   ibid., Sch. 2, para. 3(1)(a) Back

23   ibid., Sch. 2, paras. 3(1)(a) and 5 (the 'required information') Back

24   ibid., Sch. 2, paras. 3(1)(b) and 6 Back

25   ibid., Sch. 2, para. 3(2) Back

26   ibid., Sch. 2, para. 2. It is not necessary to lay a draft order if it is declared in the order that, because of the urgency of the matter, it is necessary to make the order without a draft being so approved. It is conceivable that a matter which initially appeared to be non-urgent might become urgent by the end of the period for representations, or that the representations might disclose an urgency which was not originally apparent Back

27   ibid., Sch. 2, paras. 3(1)(b) and 6 Back

28   S.O. No. 151 of the House of Commons and No. 73 Back

29   ibid., Sch. 2, para. 2(b) Back

30   The period of 60 days does not include any time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days: Sch. 2, paras. 3(1)(b) and 6 Back

31   Human Rights Act 1998, , Sch. 2, paras. 4(1) and 5 (the 'required information') Back

32   ibid., Sch. 2, para. 4(2). The period does not include any time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days: Sch. 2, para. 6 Back

33   Human Rights Act 1998, Sch. 2, para. 4(3) Back

34   ibid., Sch. 2, para. 4(4). The period does not include any time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days: Sch. 2, para. 6 Back

35   See Sixth Report, op cit Back

36   Human Rights Act 1998, s. 5 Back

37   ibid., s. 10(1)(a) Back

38   ibid., s. 10(2), (3)(b) Back

39   See Regulatory Reform Act 2001, s. 8(3) Back


 
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