Joint Committee On Human Rights Fourteenth Report


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



General approach to scrutiny of Bills

1. Section 19 of the Human Rights Act requires every Government Bill, on publication, to be prefaced by a statement from the responsible Minister as to whether, in his or her opinion, the provisions of the Bill are compatible with Convention rights, as defined in the Act. The JCHR considers itself to be responsible to Parliament for assessing whether these "section 19 statements" have been properly made, and believes this to be a key duty. Accordingly, the Committee in the last Parliament announced that it would make scrutiny of primary legislation for its compatibility with Convention rights its first priority. The present Committee has reaffirmed this decision, and this work has formed the bulk of our published output so far. On 19 December we published a short report recapitulating the progress we had made in scrutinising Bills presented to each House.[1] Since that report was published, we have published four further reports on Bills before each House.[2]

2. The general principles we follow are—

    (a)  That every Government Bill will be examined at as early a stage as possible to establish whether significant questions of human rights appear to be raised by any of its provisions.

    (b)  Where such questions appear to arise, written ministerial responses to specific enquiries from the Committee will be sought.

    (c)  Where it seems appropriate, written commentary from non-governmental sources on these questions will be sought at the same time (this is an area of our work which we are keen to develop).

    (d)  Ministerial and other responses will be considered, pursued and published alongside any report of the Committee's opinion. On occasions (such as with the Third and Thirteenth Reports of this Session), it will appear to us that the urgency of the matter may require us to report before ministerial responses have been received.

    (e)  Oral evidence will only be taken in exceptional cases.

Private Members' Bills

3. Our approach to this type of scrutiny has been slightly modified for Private Members' Bills, which do not have a section 19 statement, and whose sponsors are anyway likely in most circumstances to be less well-resourced to answer questions from this Committee about compatibility. The other factor we have to take into account is how small a proportion of such Bills make any significant progress, never mind reach the statute book. We consider it appropriate that the resources devoted to them by the JCHR should be proportionate to this reality.

4. Each Private Member's Bill will therefore be examined by the Committee for compatibility questions but, in allocating time and resources to this scrutiny, we will have due regard to the priority that needs to be accorded to consideration of government legislation. However, we do consider that ballot Bills in the Commons should reasonably have a higher priority than other Private Members' Bills in that House.

5. Where questions of compatibility do arise in relation to a Private Member's Bill, the Committee intends in general, having given the sponsor an opportunity to respond to the questions, simply to report these matters for the attention of each House, rather than expecting the Member in charge to provide written responses. Of course, should they choose to do so, we will receive them gratefully.


6. In fact, the only Private Member's Bill on which we have so far reported was the Tobacco Advertising and Promotion Bill [Lords], which was identical to a Government Bill of the same title which was lost at the dissolution and not reintroduced by the Government. In these special circumstances, we did seek written responses from the Department of Health and the Department of Trade & Industry, and they were given.[3] We consider that this sets a useful precedent where the content of a Bill is of Government origin.

7. In paragraphs 23 and 33 of our Eighth Report,[4] we recommended that the Department of Health should make available the evidence relating to the anticipated effect of the prohibition of certain types of tobacco advertising or promotion, so that Members could draw their own conclusions about the proportionality between the public interest ends that might be served by such prohibition and the means used to achieve them. We have since received a letter from Yvette Cooper MP, Minister for Public Health, on this matter. We append it to this Report.[5]

8. We have also received a letter from the Bill's sponsor, Lord Clement-Jones, in which he takes issue with the way in which our conclusions were cited by Lord Campbell of Alloway, a member of this Committee, in a debate on an Amendment which he had proposed to the Bill.[6] We do not consider that it would be appropriate for us to attempt to control the use to which our reports are put in debate in either House. They stand on the public record, and Members of Parliament and Peers will interpret them in their own way. However, we publish Lord Clement-Jones's letter as an Appendix to this Report. In it, he draws attention to paragraph 19 of our Report on his Bill, which stated—

As long as the measures proposed in the Bill can be shown to be either outside the scope of Article 28 and/or 49 of the Treaty, or are justifiable restrictions under Article 28 and/or Article 30 and/or Article 46 of the Treaty, the measures would be unlikely to fail the test of being 'prescribed by law' for the purpose of Article 10 of the ECHR. As these are matters which Members of each House might wish to explore further, we accordingly draw them to the attention of each House.[7]


9. We have considered the following Private Members' Bills in this Session, and consider that they do not require to be drawn to the special attention of either House on human rights grounds at this stage. Some of those listed here were also listed in our Ninth Report.

Animal Sanctuaries (Licensing) [House of Commons Bill 22]

Children with Disabilities (Play Areas) [House of Commons Bill 19]

Christmas Day (Trading) [Lords][House of Lords Bill 13]

Civil Partnerships [Lords][House of Lords Bill 41]

Commonwealth [House of Commons Bill 25]

Copyright, etc. and Trade Marks (Offences and Enforcement) [House of Commons Bill 17]

Dignity at Work [Lords][House of Lords Bill 31]

Disability Discrimination (Amendment) [Lords] [House of Lords Bill 40]

Divorce (Religious Marriages) [House of Commons Bill 35]

Employee Share Schemes [House of Commons Bill 13]

Environmental Audit [House of Commons Bill 30]

European Union (Implications for Withdrawal) [House of Lords Bill 6]

Firearms (Amendment) [House of Commons Bill 27]

Firearms (Replica Weapons) [House of Commons Bill 41]

Food Labelling [House of Commons Bill 15]

Food Poverty Eradication [House of Commons Bill 69]

Football Spectators [House of Commons 21]

Health (Air Travellers) [House of Commons Bill 42]

Health Reform (Education and Public Involvement) [House of Commons Bill 99]

Home Energy Conservation [House of Commons Bill 11]

Housing (Wales) [House of Commons Bill 18]

Industrial and Provident Societies [House of Commons Bill 14, 95]

Legalisation of Cannabis [House of Commons Bill 16]

Marine Wildlife Conservation [House of Commons Bill 54]

Museums [House of Commons Bill 99]

National Heritage [Lords][House of Lords Bill 10, 24][House of Commons Bill 74]

National Lottery (Amendment) [House of Commons Bill 47]

Parliament Act (Amendment) [Lords][House of Lords Bill 23]

Pension Annuities (Amendment) [House of Commons Bill 12]

Prime Minister (Office, Role and Functions) [House of Commons Bill 60]

Public Right of Planning Appeal [House of Commons Bill 20]

Relationships (Civil Registration) [House of Commons Bill 36]

Religious Offences [Lords][House of Lords Bill 39]

Sex Discrimination (Amendment) [House of Commons Bill 66]

Telecommunications Transmitters (Restrictions on Planning Applications) [House of Commons Bill 56]

Tobacco Disclosure [House of Commons Bill 24]

Treason Felony, Act of Settlement and Parliamentary Oath [House of Commons Bill 77]

Welfare of Ducks [Lords][House of Lords Bill 21]

10. In relation to two of these Bills, the Animal Sanctuaries (Licensing) Bill and the Tobacco Disclosure Bill, which are currently dropped orders, we reserve our position on whether they would require further examination if they appeared to be likely to make further progress.

11. We consider in greater detail below three of these Bills which seem to us to raise interesting human rights issues.


12. In relation to the Religious Offences Bill, we note that the provisions of Clause 2 are identical to those introduced as Clause 38 of the Anti-Terrorism, Crime and Security Bill, but which were later deleted by the House of Lords.

13. When reporting on the Anti-terrorism, Crime and Security Bill, we observed that the provisions of clause 38 could interfere with the right to freedom of expression under ECHR Article 10, but would be likely to satisfy the requirements of Article 10(2) for justifying such an interference. The debate in the House of Lords suggested that many members of that House took a different view.

14. In reaching our previous conclusion, we noted that the Human Rights Committee under the International Covenant on Civil and Political Rights, in its concluding observations on the United Kingdom's latest periodic report under the ICCPR, had remarked on the recent upsurge in religious harassment and attack, and urged the United Kingdom to 'extend its criminal legislation to cover offences motivated by religious hatred, and take other steps to ensure that all persons are protected from discrimination on account of their religious beliefs.'[8] We concluded that the measures would be likely to be compatible with Convention and other human rights as long as they were applied 'in a way that focuses closely on the prohibited purpose and outcome of speech, that is the incitement of hatred on religious grounds'.[9]

15. In our Report, we also drew attention to the relationship between incitement offences and the law of blasphemy—

We were ... pleased to learn that the Home Secretary is not committed to the view that the present state of the law of blasphemy is in tune with the equality-based and respect-based arguments which would be likely to be used to justify the interference with freedom of expression potentially occasioned by the provisions of the Bill on incitement to religious hatred.[10]

In other words, the arguments which would justify the human rights compatibility of the proposed new statutory offences would also support the abolition of the offence of blasphemy and to do both in the same Bill would be a more appropriately symmetrical approach. It remains to be seen whether the House of Lords will be influenced by the wider scope of the Religious Offences Bill, compared to the original provisions of the Anti-terrorism, Crime and Security Bill, should the opportunity to express its opinion on it arise.


16. In relation to the Civil Partnerships Bill, which has been presented to the House of Lords by Lord Lester of Herne Hill QC (a member of this Committee), we note that it would entitle both same sex and opposite sex couples to enter into a civil partnerships registration scheme upon satisfying certain qualifying conditions. It outlines a procedure for registration and dissolution of civil partnerships, and provides a framework for the partners' mutual care and support, making provision relating to their property, and their protection in certain adverse circumstances, such as ill health, domestic violence, or the death of a partner.

17. The Bill removes a number of legal disabilities which have previously afflicted those who have been effectively unable to contract a marriage, for example transsexuals and homosexuals. It would also offer other people an additional method of publicly entering into a lasting commitment with each other in a way which would have many of the legal consequences of marriage. While the European Convention on Human Rights has been held to permit legal provisions which give special protection to the institution of marriage and parties to marriages, the Convention does not prevent states from recognizing new forms of relationship or extending protection to non-marital forms of relationship. In our view, the Bill would be compatible with Convention rights.

18. Although the Bill, being a private Member's bill, does not carry a section 19 statement of compatibility, Lord Lester has made available an opinion on its compatibility prepared by Mr. David Pannick QC. A copy of that opinion is appended to this report.[11]


19. In relation to the Treason Felony, Act of Settlement and Parliamentary Oath Bill, which has been presented to the House of Commons by Mr. Kevin McNamara MP (a member of this Committee) and others, we note that it would make three changes to important constitutional provisions in order—

—  to remove the statutory incapacity of people in communion with the Roman Catholic Church to inherit the Crown, and the requirement that the monarch must be in communion with the Church of England, by amending sections 2 and 3 of the Act of Settlement 1700;

—  to decriminalize the promotion of a republican form of government for the United Kingdom, by amending section 3 of the Treason Felony Act 1948; and

—  to provide for an alternative form of parliamentary oath which would not refer to the monarch or the Crown.

20. The Bill would remove a legal disability which has previously affected Roman Catholics and others who are not in communion with the Church of England. In decriminalizing the promotion of a republican form of government and providing for an alternative form of parliamentary oath, the Bill would also enhance the protection for the right to freedom of conscience under ECHR Article 9, the right to freedom of expression under ECHR Article 10, and the right to be free of discrimination on the grounds of religion and political opinion under ICCPR Article 26 and under Article 14 of the ECHR taken together with Article 10 of the ECHR and Article 3 of Protocol No. 1 to the ECHR.

21. In our view the Bill would be compatible with Convention rights.

Private Bills

22. The Standing Orders of each House relating to Private Bills were amended with effect from 27 November 2001 so that Standing Orders 38(3) of the Commons and Lords now require the memorandum attached to each Bill by the promoter to include a statement of opinion as to compatibility with Convention rights. Standing Order 169A of the Commons and 98A of the Lords require a Minister to report on each such statement (by depositing a statement in the Private Bill Office) immediately after First Reading.

23. Given the introduction of these procedures, we decided that the comprehensive nature of our approach to legislative scrutiny should include commenting on these opinions/statements. The Committee will consider Private Bills in much the same manner as it does Government Bills. So far, none of those we have examined, which are listed below, seems to us to raise significant human rights questions.

Barclays Group Reorganisation Bill

City of London (Ward Elections) Bill

Greenham and Crookham Commons Bill

HSBC Investment Banking Bill

Land at Palace Avenue, Kensington (Acquisition of Freehold) Bill

London Development Agency Bill

London Local Authorities and Transport for London Bill

Mersey Tunnels Bill

Milford Haven Port Authority Bill

National Australia Group Europe Bill

1   Ninth Report, Session 2001-02, Scrutiny of Bills: Progress Report, HL Paper 60/HC 475 Back

2   Tenth Report, Session 2001-02, Animal Health Bill, HL Paper 67/HC 542; Eleventh Report, Session 2001-01, Proceeds of Crime Bill: Further Report, HL Paper 75/HC 596; Twelfth Report, Session 2001-02, Employment Bill, HL Paper 85/HC 645; Thirteenth Report, Session 2001-02, Police Reform Bill, HL Paper 86/HC 646 Back

3   See Eighth Report, Session 2001-02, Tobacco Advertising and Promotion Bill [Lords], HL Paper 59/HC 474 Back

4   Eighth Report, Session 2001-02, Tobacco Advertising and Promotion Bill, HL Paper 59/HC 474 Back

5   See p Ev 1 Back

6   See p Ev 2 Back

7   Eighth Report, op cit, para 19 Back

8   The Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland. 05/11/2001. CCPR/CO/73/UK, CCPR/CO/73/UKOT. (Concluding Observations/Comments), para. 14 Back

9   Second Report of 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37/HC 372, pp. xvi-xvii, para. 58 Back

10   Ibid, p. xvii, para. 60 Back

11   See p Ev 3 Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2002
Prepared 8 March 2002