Appendices
Appendix 1: Klug Report with Tables 1-8 and Appendices
1-4
REPORT ON
THE WORKING
PRACTICES OF
THE JCHR, FRANCESCA
KLUG, PROFESSORIAL
RESEARCH FELLOW,
CENTRE FOR
THE STUDY
OF HUMAN
RIGHTS, LSE
RESEARCH
ASSISTANCE AND
TABLES BY
HELEN WILDBORE,
RESEARCH ASSISTANT
TO FRANCESCA
KLUG, CENTRE
FOR THE
STUDY OF
HUMAN RIGHTS,
LSE
1. Background to the report
2. The Scheme of the HRA
3. Nature and purpose of Human Rights
4. Background to Establishment of JCHR
5. The role of select committees
6. Working Practices of the JCHR
7 Evaluation and Assessments of Working Practices
8. Policy and legislative formation and holding the executive
to account
9. Informing and influencing parliamentary debates and affecting
legislative outcomes
10 Monitoring and informing the implementation of the HRA: government
officials and the general public
11 Challenges and Difficulties posed by Current Working Practices:
opinions and suggestions
12 What kind of human rights scrutiny?
13. Conclusions
14. Options and Recommendations
Tables
Table 1 - Draft Bills reported on by the JCHR by
session
Table 2 - Number of Bills considered by the JCHR per session
Table 3 - Number of Private Bills published per session
Table 4 - Analysis of JCHR references in Hansard for session 2005-06
Table 5 - Amendments made as a result of JCHR reports, with annex
Table 6 - Number of Government bills reported on by the JCHR before
the second reading in the second House
Table 7 - Courts referring to JCHR reports
Table 8 - New Zealand Legislation Advisory Committee 'Guidelines
On Process & Content Of Legislation'
Appendices
Appendix 1 - Interviews and Visits
Appendix 2 - Terms of Reference of JCHR
Appendix 3 - Core Tasks for Select Committees
Appendix 4 - Scrutiny Committees
1. Background to the report
1.1 At the end of last year the Committee decided
to undertake an examination of its working practices, to consider:
the balance to be struck between its legislative
scrutiny work, other scrutiny work such as that related to international
treaties, and more thematic, policy-orientated work
the priorities, procedures and working practices
which it will seek to employ in undertaking each kind of work,
including whether the emphasis of its legislative scrutiny work
should be changed to focus to a greater extent on pre-legislative
scrutiny (e.g. Green and White Papers and draft bills) and/or
post-legislative scrutiny (e.g. delegated legislation, statutory
guidance and codes of practice).
1.2 A decision was taken in November 2005 to appoint
an independent, external specialist advisor to assist with this
review. I was appointed on a part-time basis in February 2006[34]
and began the review (on a one day a week basis) in March. (See
Appendix 1 for interviews and visits).
1.3 The Standing Orders/Orders of Reference of
the JCHR are very broad (Appendix 2; hereafter referred to
as terms of reference). They do not state or imply that it
is the responsibility of the Committee to scrutinise legislation
other than Remedial Orders laid under Schedule 2 to the Human
Rights Act (HRA). The Committee is required to "consider
matters relating to human rights in the UK (excluding consideration
of individual cases)." No definition of human rights is
given, but a direct link to the HRA is made through the responsibility
given to the Committee to consider proposals for 'remedial orders'
under the Act.
1.4 To meaningfully review the working practices
of the Committee it is essential, in my view, to briefly consider
the nature and purpose of both the Human Rights Act (HRA) and
human rights more generally, as the only two objects of enquiry
specifically mentioned in the Committee's terms of reference.
All references to the HRA and human rights below are intended
to assist the Committee in its examination of its appropriate
tasks and responsibilities. They aim to clarify the explicit role
for Parliament envisaged in the scheme of the HRA and the broad
and values-based nature of human rights.
2. The scheme of the HRA
2.1 The origins of the JCHR can be traced to the
introduction of the HRA in 1998 and the development of a (then)
unique model for incorporating[35]
the European Convention on Human Rights (ECHR) into UK law in
the years that preceded this. The distinguishing feature of this
model, which the then Home Secretary, Jack Straw, labelled 'the
British model',[36]
was that it worked with the grain of British constitutional traditions
in envisaging a significant role for Parliament.
2.2 The most unique and most commented upon aspect
of the HRA is that whilst it is intended to operate as a 'higher
law,' to which all other laws and policies must confirm where
"possible," the Act does not allow courts to strike
down statutes in the manner of judicially entrenched Bills of
Rights[37].
In so far as the HRA allows courts to review and "declare
incompatible" Acts of Parliament, it refines the British
constitutional doctrine of 'parliamentary sovereignty,' but it
clearly does not overturn it[38].
In explaining the intention behind the Act, Jack Straw stressed
that:
"Having decided that we should incorporate the
Convention, the most fundamental question that we faced
was how to do that in a manner that strengthened, and did not
undermine, the sovereignty of parliament.[39]"
His answer to that question lay in finding a specific
role for parliament in the "operation and development of
the rights in the Bill …"[40]
The origins of the JCHR can be traced to that explicit parliamentary
role.
Distinguishing Features of HRA
Jack Straw described the HRA as " the first
Bill of Rights this country has seen for three centuries.[41]"
Dominic Grieve, now Shadow Attorney General, whilst calling for
a bill of rights, said, "I see this Bill as a beginning.[42]"
2.3 The main distinguishing features of the HRA can
be summarised as follows:
— It is the only domestic statute (excluding
the European Communities Act) that is determinative of future
legislation and policy as well as past. It is in this sense a
'higher law.'
— Public authorities, including the courts,
are explicitly prohibited from acting incompatibly with the rights
in the HRA (unless required to do so by 'incompatible' primary
legislation).
— The courts must interpret primary and
secondary legislation compatibly with Convention rights "so
far as it is possible to do so[43]"
— The courts are not empowered to overturn
Acts of Parliament but may declare them "incompatible"
with Convention rights where it is not "possible" to
interpret them compatibly.
— Subordinate legislation can be struck
down unless primary legislation prevents this[44].
— Although the domestic courts have
to "take account" of ECHR jurisprudence they are not
bound to do so and it is open to the courts to develop their own
case law.
Role of Parliament in Scheme of HRA
2.4 Unlike many Bills of Rights or equivalent,
the scheme of the HRA directly engages parliament. This intention
was stated in terms from the outset.
a) The White Paper that accompanied the Human
Rights Bill, Bringing Rights Home, reiterated that "Parliament
itself should play a leading role in protecting the rights which
are at the heart of Parliamentary Democracy.[45]"
b) Jack Straw, Home Secretary, in piloting the
Human Rights Bill stated that "Parliament and the judiciary
must engage in a serious dialogue about the operation and development
of the rights in the Bill…this dialogue is the only way in
which we can ensure the legislation is a living development that
assists our citizens".[46]
c) Lord Irvine remarked in 2002, two years after
the HRA came into force, that the Act represents a "new and
dynamic co-operative endeavour…between the Executive, the
Judiciary and Parliament; one in which each works in its respective
constitutional sphere.[47]"
2.5 The role of parliament in the scheme of the HRA
is particularly reflected in the following provisions of the Act:
a) Section 19, which requires Ministers to make
a "Statement of compatibility" before introducing
a Bill, or, where this is not possible, indicate that the government
nevertheless wishes the House to proceed with the Bill
b) Sections 3 & 4 which require the courts
to interpret legislation compatibly with Convention rights, but
allow Parliament to decide how to proceed when they are unable
to do so. In practice, therefore:
? Following a "declaration of incompatibility"
by the courts under s4, it is a decision of Parliament to decide
whether, and if so how, to proceed. It is open
to the Government, acting through Parliament, to proceed through
a "Remedial Order" where "there are compelling
reasons" to do so[48].
? It is also open to the Parliament to disagree
with the courts that a provision is incompatible with the rights
in the HRA and to decide that the legislation in question should
remain in force or be amended in a way which is different to that
suggested by the domestic courts, leaving it to the Strasbourg
court to determine otherwise.
2.6 The distinguishing features of the HRA, in which
parliament has the 'final say' on legislation, have attracted
considerable academic and legal comment. The Committee's current
Legal Adviser Murray Hunt considers that the HRA is a unique
'parliamentary model' of human rights protection. A number
of academic commentators have referred to the HRA as a 'dialogue
model' engaging the courts, government and parliament in human
rights protection.[49]
2.7 The scheme of the HRA has also given rise to
significant interest and commentary abroad, especially in other
common law Commonwealth countries. There is particular interest
in the greater democratic legitimacy of the 'dialogue model' in
which Parliament has a direct role in the scheme of human rights
protection, and the courts have no powers to strike down legislation.[50]
2.8 Recent media and political comment have suggested
that the courts have de facto powers to disallow primary legislation[51].
This is not the case. As the Home Secretary said in a Written
Statement on the day that the House of Lords made a Declaration
that s23 of the Anti-Terrorism Crime and Security Act (ATCSA)
was incompatible with Articles 5 and 14 of the ECHR, "It
is ultimately for Parliament to decide whether and how we should
amend the law.[52]"
2.9 Legal commentators also sometimes suggest that
the courts have what amounts to de facto strike down powers. Were
parliament to disagree with, or ignore, a Declaration of Incompatibility
the European Court of Human Rights would be very likely to confirm
the domestic court's original judgement, it is argued[53].
However this is not an assumption that can automatically be made.
There are many circumstances in which the European Court might
apply its 'doctrine of a margin of appreciation' instead.
Based on the hypothesis that "the national authorities have
direct democratic legitimation and are…in principle better
placed than an international court to evaluate local needs and
conditions[54]"
because of "their direct and continuous contact with the
vital forces of their countries," the European Court frequently
takes the view that national authorities, which can include
parliament as well as domestic courts, governments and decision
makers, are "in a better position than the international
judge to give an opinion."[55]
The application of this doctrine of subsidiarity depends on the
context. It is particularly likely to be applied where there
is no European-wide common standard at stake or where the courts
are required to determine the necessary limitations on rights,
particularly in relation to social, economic or moral issues,
and sometimes national security.[56]
In practice this can apply to a considerable number of issues
and cases.
3 Nature and purpose of human rights
3.1 The nature, and in particular the purpose,
of human rights is absolutely crucial, most informed commentators
would agree, to the question of how to understand and interpret
them. Lord Hope, in a case decided before the HRA came into
force, acknowledged that "a generous and purposive
construction" will need to be given to "issues raised"
under the HRA[57].
3.2 Douglas Carswell has suggested that the committee
has failed to establish a sufficiently overlapping consensus on
the importance and meaning of human rights. Richard Shepherd has
suggested that "in a narrow sense the fundamental rights
to which Parliament has directed our attention are the "Convention
rights" as defined by the Human Rights Act 1998" although
they "do not provide an exhaustive definition of the international
human rights provisions relevant to the UK.[58]"
3.3 Although the phrase human rights did not come
into common use until after the second world war, most academic
and legal commentators trace the idea of fundamental or inalienable
rights to the philosophers and political movements of the Enlightenment.
The drafters of the 1948 Universal Declaration of Human Rights
cited the Magna Carta and the 1689 English Bill of Rights as part
of their heritage.
3.4 Although mainly scrutinising legislation for
compliance with the rights in the European Convention on Human
Rights, and (much less frequently) other major international human
rights instruments like the Convention on the Rights of the Child,
the Committee has drawn on a range of sources of human rights
in its work over time, including the Magna Carta and traditional
common law rights[59].
3.5 Regardless of which treaty or bill of rights
human rights are sourced from, their ethical and values-driven
nature is one that almost all legal and academic commentators
agree on. In other words, human rights law is best understood
as the legal expression of a set of values which precedes the
law, influences and moulds it.
3.6 In the case of the ECHR, its preamble provides
the clearest guide to its purpose which has been further
amplified by the case law of the European Court of Human Rights.
From this it is possible to infer that the prime objects of the
ECHR are:
a) The protection of human rights, traced to
the 1948 Universal Declaration of Human Rights[60]
b) The maintenance and promotion of "the
ideas and values of a democratic society" in line with "the
general spirit of the Convention[61]"
c) The promotion of freedom and the rule of law[62].
3.7 Professor Andrew Clapham has suggested that the
dual purpose of Convention rights are the protection of dignity
and democracy[63].
HRA as a statement of values and principles
3.8 Former law lord, Lord Browne-Wilkinson, suggested
before the HRA came into force that "In large part the
Convention is a code of the moral principles which underlie the
common law" but "there has hitherto been no attempt
to formulate those judicial moral views in a code of any kind…
As these moral questions come before the courts in Convention
cases the courts will be required to give moral answers to the
moral questions".[64]
3.9 Lord Rogers, commenting three years after the
HRA came into force, suggested that "Convention rights
are to be seen as an expression of fundamental principles
rather than a set of mere rules".[65]
3.10 Some of the main principles and values underlining
the human rights in the HRA can be traced from the following key
interpretations of their purpose:
i) Some rights , notably the right to freedom
of conscience and the right to be free from slavery and torture
are expressed in absolute terms. Most are qualified or limited
to some degree[66].
In interpreting rights in the Human Rights Act it is necessary
to "determine whether a fair balance was struck between the
demands of the general interest of the community and the requirements
of the protection of the individual's fundamental rights.[67]"
There is "inherent in the whole of
the Convention …a search for balance between the rights
of the individual and the wider rights of the society…neither
enjoying an absolute right to prevail over the other.[68]"
ii) The intention is to guarantee rights "which
are practical and effective" not rights that are "theoretical
or illusory".[69]"
iii) The ECHR should be applied as a 'living
instrument' and human rights should be interpreted in the
light of 'present day conditions.[70]'
iv) Human rights principles may require government
to take positive steps to achieve greater equality or public safety,
for example[71].
This duty is strictest where fundamental rights, like the right
to life or freedom from torture or from discrimination, are at
stake . A purely negative conception of rights is not compatible
with the object and purpose of the Convention[72].
v) This doctrine of 'positive obligations' does
not just apply to the actions or decisions of state authorities.
"Sometimes positive measures [need] to be taken [by the state]
even in the sphere of relations between individuals,[73]"
to address inequalities in the private sphere, or protect individual
privacy from intrusions by others, for example.
vi) Any restrictions on rights must be
proportionate and necessary in a democratic society[74].
Provided a restriction genuinely pursues one of the aims set out
in the Article itself, and does so in a proportionate way, it
can be legitimate[75].
[All emphases are mine].
3.11 It is the values-driven nature of the HRA
which has led many informed commentators to distinguish it from
most other domestic legislation whose more specific provisions
lend themselves to 'literal interpretation' by the courts.
3.12 The symbolic role of the HRA as a signifier
of the fundamental values and principles of liberty, justice
and tolerance, long associated with British democracy, is
frequently remarked upon. Professor Robert Blackburn described
the HRA as a "major constitutional Act" providing "an
official code and moral yardstick against which to test not only
the principles of the common law and parliamentary statutes but
the legitimacy of government in general.[76]"
3.13 Whist there are clearly different views on
the desirability, or otherwise, of incorporating the ECHR into
UK law through the HRA, virtually all informed comment recognises
that the Act is distinguishable from other types of specific legislation
- and comparable to a bill of rights - on the following grounds:
i) The Act was intended to have symbolic significance,
comparable to race and equal opportunities legislation, signifying
that "it is much more important than…get[ting] your
rights enforced quickly and cheaply because you will not have
to make the journey to Strasbourg.[77]"
ii) The rights it upholds, like all rights
in international human rights treaties and bills of rights around
the world, are expressed in very broad terms, which require
interpretations and clarifications that are liable to evolve over
time in the light of changing circumstances and experience.
iii) Because they are so broad, the courts
have determined that the rights in the HRA need to be interpreted
in a 'purposive' way to reflect their 'general spirit,' [78]
and to achieve the aims of the Act as a whole[79].
This is in contrast to the more traditional approach to statutory
construction which relies on a literal interpretation of the precise
words used in a statute, still commonly
associated with English 'black letter law'[80]
and the interpretation of specific legislation.
Implications of nature of human rights for role
of parliament in HRA
3.14 It is the broad scope of human rights, and the
ethical and philosophical issues they raise, which drive the ongoing,
international debate on the legitimacy of unelected judges interpreting
Bills of Rights or incorporated human rights treaties[81].
As Richard Shepherd put it in his alternative draft report on
The Case for a Human Rights Commission "the interpretation
of the scope of human rights often involves political value judgements
on which there is a legitimate scope for disagreement across the
political spectrum or within society.[82]"
3.15 The Courts frequently comment on the potentially
political or philosophical nature of the judgements they are required
to make under the HRA, particularly where social and economic
issues are engaged,[83]
or where the rights they interpret are not absolute, but are qualified
and limited, which is the case with most, but not all, of the
Convention rights[84].
3.16 The discretionary nature of many human rights
adjudications is one of the factors that drove the European Court
of Human Rights to develop their doctrine of a 'margin of appreciation'
to national authorities, described above (para 2.9).[85]
As a doctrine designed by a regional court conducting a supervisory
role of a system for protecting rights which is supposed to operate
primarily at the national level, the courts have determined that
it is not appropriate to import it wholesale at the domestic level[86].
3.17 Nevertheless, in a range of judgements, the
domestic courts have argued for, a "degree of deference…due
to the judgement of a democratic assembly on how a particular
social problem is best tackled. [87]"
This "discretionary area of judgement" given to "the
decisions of a representative legislature and democratic government,"
as Lord Bingham has put it[88],
is more often applied where a right is qualified than where it
is absolute. Policy issues concerning the allocation of resources,
such as housing, are an area where, in Lord Woof's terms "the
courts must treat the decisions of Parliament as to what is in
the public interest with particular deference.[89]"
3.18 Lord Bingham has determined that the requirement
under HRA s3 to interpret legislation compatibly with Convention
rights means that the fact that legislation "represents the
settled will of a democratic assembly" is not in itself "a
conclusive reason for upholding it." Nevertheless "a
degree of deference is due to the judgement of a democratic assembly
on how a particular social problem is best tackled.[90]"
3.19 Given the crucial role of the legislature
under the scheme of the HRA, and the broad and ethical nature
of human rights, a primary question for the JCHR to consider in
its examination of its working practices is as follows: how
can the Committee most usefully assist parliament in determining
how legislation should be framed, and policies developed
a) in a manner that is not technically incompatible
with the settled jurisprudence of the ECHR now incorporated
into our law through the HRA (which in reality applies to a
relatively narrow band of technical but fundamental principles
if the doctrines of a 'margin of appreciation' and 'discretionary
area of judgement' are taken into account)
(b) but which reflects the purposive
nature of human rights, best understood as a set of fundamental
values associated with liberal democracies, drawn from a range
of recognised domestic and international sources, which precede
the law (both case-law and statute) influences and moulds it.
4. Background to establishment of JCHR
4.1 Bringing Rights Home, the consultation
paper produced by the Labour Party in 1996 to foreshadow the HRA,
was the first official document to propose a "new Joint Committee
on Human Rights." The rationale for the committee was
to ensure that "Parliament itself should play a leading role
in protecting the rights which are at the heart of a parliamentary
democracy[91]."
In addition the Committee "would
have a continuing responsibility to monitor the
operation of the Human Rights Act.[92]"
4.2 The specific functions envisaged for the Committee
were:
— To strengthen the parliamentary machinery
on human rights.
— To monitor the operation of the new Act
and other aspects of the UK's human rights obligations.
— To scrutinise legislation "identified
as having an impact on human rights."
It was recognised that more work would be needed
to clarify how the Committee would work in practice but that it
should "have the powers of a select committee to compel witnesses
to attend.[93]"
4.3 The White Paper, Rights Brought Home, which
accompanied the publication of the Human Rights Bill in
October 1997, picked up on this theme, reiterating the central
role of Parliament in protecting rights "which are at the
heart of a parliamentary democracy.[94]"
4.4 The White Paper noted that it was for Parliament
to decide how to ensure that Parliament should play "a leading
role in the protection of human rights" but suggested that
"the best course would be to establish a new Parliamentary
Committee with functions relating to human rights."
Alternatives canvassed were a Joint Committee on Human Rights,
or discrete Committees for both houses that would meet jointly
for some purposes and separately for others[95].
It was suggested that the Committee/s could carry out the following
functions:
— enquiries on a "range of human rights
issues related to the Convention."
— reports "to assist the Government
and Parliament in deciding what action to take".
— examine issues relating to other international
obligations, such as proposals to accept new rights under other
human rights treaties.
— conduct an enquiry into the purpose and
operation of a Human Rights Commission.
There was no reference in the
White Paper to the proposed Committee/s scrutinising legislation.
4.5 On 14 December 1998 Margaret Beckett, Leader
of the House of Commons, announced the establishment of a Joint
Committee on Human Rights to:
— conduct enquiries into "general
human rights issues" in the UK (only).
— Scrutinise Remedial Orders
— Examine draft legislation where there
is doubt about its compatibility with the ECHR
— Examine whether there is a need for a
human Rights Commission to monitor the operation of the HRA[96].
This reference to 'examining draft legislation,'
now one of the 'core tasks,' of select committees, was in keeping
with the significance attached to pre-legislative scrutiny by
the newly formed Modernisation Committee (See para 5 2). However
neither the Leader's statement, nor the Committee's Standing
Orders/Orders of Reference (hereafter referred to as terms
of reference), included the scrutiny of published Bills.
Ministerial proposals for role of JCHR
4.6 There were several references by ministers
to the establishment of a parliamentary select committee during
the passage of the Human Rights Bill, all of which were tied to
the Human Rights Act, its educational and cultural purposes
and its machinery, but only one of which suggested a legislative
scrutiny function: [97]
— Jack Straw, the then Home Secretary,
suggested a "parliamentary Committee on human rights might"
monitor progress in implementing the Act and the way in which
it develops.[98]
— Lord Irvine, Lord Chancellor, suggested
such a Committee might scrutinise Remedial Orders, "keep
the protetion of human rights under review [and] be in the forefront
of public education and consultation on human rights. It could
receive written submissions and hold public hearings at a number
of locations across the country.[99]"
— Lord Williams of Mostyn, suggested the
government would support the establishment of a "parliamentary
Committee on human rights" in that "we wish the whole
new culture of human rights to infuse the parliamentary process."
Reviewing the arguments for a Human Rights Commission could be
one of its taks[100].
— Under-Secretary of State at the Home
Department ,Mike O'Brien, was the only minister to suggest the
proposed select committee "could be a Joint Committee of
both Houses or a Committee of each House" and that "the
Committee's function could be to scrutinise proposed legislation",
as well as "to ensure that human rights are respected, to
assess UK compliance with various human rights codes and to keep
the Act …under constant review.[101]"
Other Proposals for a Parliamentary Human Rights
Committee
4.7 In the run-up to the introduction of the HRA,
and in the early days of implementation, there were a number of
proposals by esteemed academics or organisations for a parliamentary
committee or parliamentary scrutiny of legislation for human rights
compliance[102].
In each case the impetus was the explicit role allotted to
parliament by the scheme of the HRA.
4.8 The highly respected Constitution Unit at UCL,
for example, explored three alternatives to providing a "legitimate
role for Parliament in the enforcement of human rights, alongside
the courts." One option proposed closely resembles the JCHR:
the establishment of a Select Committee - possibly a Joint one
- whose main function would be to report regularly to Parliament
on human rights compliance of Bills but which would also
carry out "issue-based inquiries." The report suggested
that the main advantage of such a select committee over standing
committees would be the power to call witnesses. It prophetically
advised that "the decision as to the balance of priorities
would rest with the committee itself and would certainly need
adjustment over time." [103]
Competing Views on Purpose of a Human Rights Select
Committee
4.9 From the outset there were different views on
the functions and roles of a parliamentary human rights committee[104].
Professor Robert Blackburn envisaged such a committee as primarily
performing a "technical" role, "comparing and
predicting the compatibility of the law proposed with the prospect
of litigation under the ECHR[105]."
However the scrutiny of government bills should not be mandatory,
Blackburn argued, but "the committee should determine for
itself which measures it should enquire into and report on."
In addition the Committee "might consider it worthwhile"
to initiate separate special inquiries into aspects of particular
importance or significance to the working of the Act." Examples
he gave were the courts' application of its powers under s4 (to
make Declarations of Incompatibility) and citizens' access to
justice.
4.10 The Constitution Unit (CU), on the other
hand, argued that "a technical examination" of "clearly
defined and settled ECHR principles and standards" would
add "minimum value to the process of legislative scrutiny."
Instead, in a document published after the JCHR was established,
the CU proposed "merits scrutiny" which involves
"an examination of how the legislation has succeeded in balancing
competing interests, and applying the doctrine of proportionality"
which will involve a "degree of subjective assessment of
policy.[106]"
It should be possible, the report concluded "to apply
both 'technical' and 'merits' scrutiny to all types of legislation".
In addition the Committee could scrutinise other policies, focussing
on cross-cutting issues concerning human rights which were not
dealt with adequately by departmental select committees. "The
Committee could be entitled to recommend and/or monitor changes
in practice or procedure which aim to improve human rights compliance."
4.11 A common theme of the various independent
proposals for the Committee was the need to assist Parliament
in providing independent scrutiny of executive policies and legislation
which impact on human rights[107].
Recognising the dominant role of the 'executive in parliament'
under our constitutional system it was envisaged that a human
rights select committee, in particular a Joint committee of both
Houses, would strengthen the independence of the legislature
in performing its allotted functions under the HRA. A task
given greater significance by the 'deference,' or 'discretionary
area of judgement,' given to parliament by the courts in the protection
of human rights in many contexts. In the absence of a distinctive
'voice' for parliament, such 'deference' is in reality to the
executive, not the legislature [108].
5. The role of select committees
5.1 Most select committees are departmental Select
Committees. The Liaison Committee (of select committee chairs)
published a set of Core Tasks for Select Committees in
June 2002 (Appendix 3). These imply that the key role of
select committees is to provide "independent scrutiny of
government,[109]"
including executive and administrative decisions. Other key select
committee functions identified by academic and official reports
include:
— Investigative and less partisan scrutiny
of government than is associated with standing committees[110]
— Monitoring the work of central departments[111]
— Assist Parliament to "reassert real
control" over government though relatively impartial advice
and information[112]
— Provide informed contribution to public
debate[113]
— Assist in making the political process
less remote and more accessible to citizens.[114]
5.2 The Core Tasks for Select Committees are
based on the model of departmental select committees (disregarding
the generic task 10, assist the House through producing reports
which are suitable for debate and decision). As a non-departmental
select committee, some of these tasks are outside the effective
remit of the JCHR (notably tasks 4 - 8). Others such as examining
Government or EU policy proposals in Green or White Papers etc
and emerging policy areas, or scrutinising draft Bills, are squarely
within the terms of reference of the JCHR, provided that they
relate to human rights matters in the UK[115].
Scrutiny Committees
5.3 Scrutiny is the central function of all select
committees. They all scrutinise some aspects of executive output
- legislation, policy or decisions. But most legislative scrutiny
by departmental select committees is pre or post-legislative[116].
5.4 Pre-legislative scrutiny of draft bills used
to be relatively rare and was generally carried out by a specially
appointed Joint Committee or Special Standing Committee that combined
the functions of select and standing committees. There has been
a marked increase in draft bill pre-legislative scrutiny since
1997 and since the adoption of the Core Tasks, the usual
assumption is that select committees will carry out this role.
5.5 It is very unusual for select committees to prioritise
Bill scrutiny as their core task unless it is in their Standing
Orders or terms of reference as this is seen as the legitimate
role of Standing Committees. However, provided that their terms
of reference are broad enough (as is the case with the JCHR) there
is nothing to stop select committees from scrutinising published
Bills (government, private or private members) and several do
from time to time, often as part of a wider enquiry[117].
5.6 Attached is a table of non-departmental select
committees, all of which are formally charged with
scrutinising legislation of one form or another, including
EU Directives or secondary legislation. In contrast to the JCHR[118],
their terms of reference are quite specific and the scrutiny
tasks allotted to them generally precise and, to varying degrees,
quite technical (Appendix 4)[119].
Joint Committees
5.7 Joint Select Committees are rare[120]
although ad hoc joint committees are more common, often established
to review issues of constitutional reform[121].
Many of the early proposals for a human rights committee recommended
that it should be a Committee of both houses to reduce the political
partisanship of Select Committees in which the governing party
has the majority of members[122].
5.8 The Hansard Society has identified a number of
potential advantages to Joint Committees including the range of
experiences and expertise they bring, their capacity to "speak
with one voice in Parliament" and the "lower degree
of partisanship"[123]
that should apply. However the different roles and cultures
that members of the two Houses bring to a Joint Committee can
create their own challenges. Whilst Peers are unelected and primarily
have an expert scrutinising role, MPs are partly accountable to
their constituents for policy and legislation.
6. Working Practices of the JCHR
6.1 The JCHR is a non-departmental select committee
comprising members of both Houses of Parliament. It is the first
permanent Joint Committee of both houses. In effect it was a
new creature, being a standing joint committee with an investigative
remit which is extremely broad.
6.2 There was considerable discussion during the
short life of the first Committee[124]
about the interpretation the JCHR should give to its broad terms
of reference and whether, and if so how, to prioritise Bill scrutiny.
At its second meeting the Committee interpreted its terms of
reference to include "a power to examine the impact of legislation
and draft legislation on human rights in the UK[125]."
6.3 There are no minutes to suggest the level of
priority accorded to Bill Scrutiny during the first Parliament,
although early JCHR reports in the second Parliament (2001-02)
state that Members in the first Parliament decided it should
have a "high priority" (Minutes of Proceedings of meeting
on 19 July 2001), subsequently upgraded in the second Parliament
to first priority."(14th Report, Session
2001-02) The Commons clerk, Nick Walker, has suggested that
during the second Parliament about three quarters of the time
of the Committee was spent on legislative scrutiny, although this
applied more to the staff than Committee Members and probably
only applied at 'peak parliamentary periods' to the Committee
as a whole.
Committee members will obviously be familiar with
the current and previous working practices of the JCHR which are
well documented.[126]
The following is a brief synthesis of the main developments over
the life of the Committee, during three parliamentary sessions,
which have bearing on this review.
Working Practices in the First Parliament 2001
6.4. At the second meeting of the first Committee
members "resolved that the Committee do inquire into the
Scrutiny of Bills[127]"
including the background to the making of 'statements of compatibility'
under HRA s19. This was approached in the following way.
— It was decided that the Committee's Legal
Advisor would sift all Bills and draw to the attention
of the Chair any with implications for ECHR compatibility.
— The Chair would normally write to the
Minister for clarification of the relevant s19 Statement which
would be presented to the Committee alongside the Legal Advisors
advice.
— In the case of Bills raising particularly
important human rights issues, the Committee might decide to mount
a formal inquiry, taking evidence and reporting to both Houses.
A special report was published on the Criminal Justice
and Police Bill which concluded that bill scrutiny was "one
of the most important parts" of the Committee's terms of
reference." Evidence was taken from ministers but not other
sources.
6.5 It was additionally decided, alongside Bill
scrutiny, to review progress in implementing the HRA amongst
public authorities, government and the courts. This exercise was
intended not only to fulfil a legitimate scrutiny purpose but
also to serve as an educational process both for the Committee
and the wider public.
Working Practices in the Second Parliament 2001-5:
legislative scrutiny
6.6 The following working practices, developed during
the course of the last parliament, still largely apply to the
Committee's Scrutiny of Government Bills. Major changes are recorded
below (6.8).
a) The Committee decided early on to develop
two key principles that had already begun to be established during
the first session: i) comprehensive scrutiny of all Government
Bills ii) seeking detailed information from the Government
on their view of the human rights compatibility of Bills where
significant questions are raised[128].
b) JCHR considers itself to be responsible
to Parliament for assessing whether "section 19 statements
have been properly made," and believes this to be a "key
duty.[129]"
c) Written comments from non governmental
sources are sought "where appropriate" but oral evidence
is more "exceptional.[130]"
d) The main objective of legislative
scrutiny, it was decided, is to provide "advice on the human
rights compatibility of proposed legislation in a timely manner"
to influence parliamentary debates on that legislation[131].
e) A self-imposed target was developed of
reporting before the second reading in each House. .
f) The primary role of the Committee was
defined as "alerting" both Houses of Parliament
to the "risk of proceeding to legislate in a manner which
will later be held by a court to be incompatible with
the ECHR.[132]"
g) A legislative provision can present a 'significant
risk' 'a risk' or 'no appreciable risk' of incompatibility.
In a number of cases, no human rights issues will a rise. The
criteria to determine 'significance' include:
— the importance of the right affected
— the seriousness of the interference with
the right
— the strength of any justification with
the interference
— the number and vulnerability of the people
likely to be affected.
h) Scrutiny of most Bills are now produced in
regular 'progress reports' dealing with more than one Bill,
with most Bills scrutinised in more than one report. 'Stand-alone'
reports are still sometimes produced where appropriate, particularly
for in-depth scrutiny reports such as on the draft Order to renew
(sections 1-9) Prevention of Terrorism Act 2005.
i) A system of prioritisation of Bills
was developed "which attempts to focus efforts on reporting
early on government bills with significant human rights implications,
rather than dealing with Bills in order of introduction."
j) During 2001-2 the Committee agreed in principle
to extend the principle of comprehensiveness to Private
and Private Members Bills (PMBs). Paying "due regard
to the priority that needs to be accorded to consideration of
government legislation," the Committee also decided that
resources devoted to scrutinising Private Members' Bills
(PMBs) should be "proportionate" to the likelihood
of them making significant parliamentary progress. 'Ballot bills'
in the Commons were given priority over other PMBs[133].
k) An initial decision was taken to consider
all Private Bills presented to parliament using the same
procedure as for Government Bills.
l) The Committee has "sought to comment
as often as possible on draft bills" with the aim
of collaborating with the specific committee to which the draft
bill is allocated[134].
This sometimes involved collaboration at official level only.
The number and percentage of Draft Bills reported on per session
is produced in Table 1. The Committee itself was given
responsibility for scrutiny of the Draft Gender Recognition Bill
in session 2002-3 as its purpose was to remedy an ECHR incompatibility.
m) There has been no routine scrutiny of delegated
legislation but the Committee reported on the annual renewal
orders under the Anti-Terrorism Crime and Security Act 2001 (part
4) and Orders under the Nationality, Immigration and Asylum Act
2002, the Criminal Justice Act 2003 and the Prevention of Terrorism
Act 2005.
n) The Committee reported on one Remedial
Order early in the Parliament in accordance with point 2 of
its Standing Orders[135]
and produced a report on the Remedial Order parliamentary process.
There have only been two more Remedial Orders since, including
the Marriage Act Remedial Order which is currently under
consideration by the Committee [136].
o) Other scrutiny work is more appropriately
described as monitoring. The Committee has from time to
time monitored various aspects of the implementation of the HRA
e.g. taking evidence from the Human Rights Minister and Human
Rights Division in the DCA, monitoring government responses to
Declarations of Incompatibility and, unusually, monitoring
the definition of 'public authority' under s6 of the HRA, as developed
by the courts.
p) Other periodic monitoring functions include
the UK Government's response to the concluding observations
of UN treaty bodies and monitoring the implementation of European
Court of Human Rights judgements that involve the UK.
Enquiries
6.7 The JCHR has carried out three different types
of enquiries. The only 'thematic enquiry' completed to date was
into Deaths in Custody [137].
This enquiry has been described by the Committee (in its 19th
report on its work in the last sessions) as taking it "into
realms more usual for departmental select committees of the House
of Commons.[138]"
The inquiry and report are described as "one of our most
important pieces of work" whose objective was to "provide
a human-rights based analysis of a thematic area of Government
policy and practice.[139]"
The rationale was to counter the "discussion of human
rights matters" that "take place at a rarefied level
of legal abstraction which appears removed from people's everyday
experiences." This can put "public authorities on
the defensive, interpreting their principal responsibility as
being to avoid infringement of the ECHR at the expense of adopting
practices which will positively enhance human rights.[140]"
6.8 The 19th report recommends its successor
Committee to "consider fitting similar thematic work into
its programme if at all possible, taking into account the work
which may be undertaken by the new CEHR.[141]"Early
in the current session the Committee considered proposals for
thematic enquiries made by members of the Committee and others,
and embarked on a 'thematic enquiry' into human trafficking.
This inquiry has included a consideration of whether the UK government
should ratify the Council of Europe Convention on Action against
Trafficking in Human Beings.
6.9 As an extension of its role in monitoring the
HRA, the JCHR has carried out three enquiries into effective human
rights institutions, or, the case for them[142].
The reports on The Case for a Human Rights Commission[143]
are widely accredited as playing a significant
role in the government's decision to include human rights within
the remit of the then proposed new Single Equality Body, now called
the Commission for Equality and Human Rights.
6.10 Two additional enquiries have been carried out
in the current session, into the UN Convention against Torture
and into counter terrorism policy and human rights which,
in the latter case, is still ongoing. These use many of the techniques
of thematic enquiries including taking written and oral evidence
from an array of witnesses and carrying out visits abroad to enquire
into comparative policies and practices in other jurisdictions.
Central to these enquiries has been scrutiny of compatibility
by the government with UNCAT and anti-terrorism legislation respectively,
but these have been scrutinised in the context of wider policy
analyses and evaluation. In this respect I suggest that such enquiries
might usefully be described as scrutiny enquiries (see
below).
Recent Changes to Working Practices: approaches
to Bill scrutiny
6.11 Unlike its predecessor the current Committee
did not explicitly state early in its existence that legislative
scrutiny will be a high priority, nor did it take precise decisions
as to the comprehensiveness of nature of the scrutiny which it
will undertake. Differing views about the priority, and indeed
desirability, of legislative scrutiny provided the background
to the commissioning of this report, of course.
6.12 Initially there were only two categories
of compatibility presented to Members: those Bills which raised
"significant" human rights issues and those which did
not. Only the former were reported to parliament. Towards the
end of the last parliament a third category was introduced: Bills
which engage human rights issues but which are either clearly
compatible or do not give rise to a significant risk of incompatibility.
These are now scrutinised and reported to Parliament.
6.13 In the early part of the second parliament the
Committee tended to discuss the Legal Adviser's Notes on
a Bill prior to the draft Chair's report which was generally presented
for discussion, and possible amendment, at a subsequent meeting.
During the latter part of Session 2003-04, in an attempt to speed
up reporting, draft report paragraphs were sometimes presented
to the Committee along with a covering Note from the Legal Adviser
drawing attention to any controversial sections of the report,
or those which called for members to reach a view of their own,
for example on the proportionality of an interference with a Convention
right. The Committee tended to report its provisional views on
a Bill at this stage, then return to report further, if necessary,
in the light of any Government response. This had the advantage
of alerting Parliament earlier to the Committee's views of the
issues raised by the Bill and its provisional views in relation
to those issues. During the unusually compressed legislative timetable
of the pre-election Session 2004-5, this practice was adopted
in relation to all but the most controversial Bills. The earlier,
two report stage was then reinstated at the beginning of the current
session, although as it has progressed, the format of draft report
paragraphs with accompanying Legal Adviser's note has increasingly
been used. In the Legal Adviser's view this is a useful way of
proceeding, provided there is always the opportunity to present
a separate Legal Adviser's Note on issues where there is disagreement
between the Chair and the Legal Adviser, which is particularly
relevant for some of the more controversial Bills
6.14 In its review report the previous Committee
made suggestions for publishing criteria for prioritisation
of bills for scrutiny.[144]
Although the current Committee has not adopted them, according
the Commons clerk, they are effectively applied in practice:
— First priority should be given to "emergency
measures raising significant human rights compatibility questions".
— Second priority to government bills,
and then amendments, raising significant human rights compatibility
questions.
— A commitment to report on other government
bills raising human rights compatibility questions is maintained.
— Private Bills raising compatibility issues
should be reported before the second reading in the second House
— Account should be taken of whether the
Government supports a PMB before scrutinising it.
6.15 In this Session the Committee has sought to
draw more systematic attention to matters of human rights concern
which have not been included in Bills and not only
comment on what has been included. It has also sought to endorse
legislative proposals, where appropriate, which furthered the
protection or promotion of human rights rather than restrict its
comments to assessing risks of incompatibility. An illustration
of the former was the recommendation in the report on the Civil
Partnership Bill that Article 14 required the Government to provide
full pension rights for civil partners, a recommendation that
was subsequently accepted. An example of the latter was the welcoming
of many of the proposals in the Equality Bill as furthering human
rights.
7 Evaluation and Assessments of Working Practices
7.1 There is considerable published testimony
of the authority and esteem in which JCHR reports, of all kinds,
are held:
— Professor Robert Hazel has commented
that "the systematic and careful approach to scrutiny by
the JCHR has helped focus the minds of ministers and officials
on human rights issues.[145]"
— Roger Smith, Director of Justice, has
said that "the JCHR rapidly became a major success and, in
a short period of time, has carved out an important and unique
role in advising Parliament on the human rights implications of
Bills passing through Parliament.[146]"
— Professor Janet Hiebert, who published
the first independent research into the operation of the JCHR
earlier this year, has suggested that "the JCHR has assumed
an important supporting role in the ambitious project of developing
a culture of rights within and beyond government.[147]"
7.2 To provide an informed and systematic evaluation
of the work of the Committee it is necessary to establish agreed
criteria for its success. There is no single source of success
criteria for the Committee but in various documentation the
Committee, or its individual staff, have suggested the following
broad targets for its work, reproduced here in descending order
of the priority that seems to be attached to them in the documentation:
i) provide "advice on the human rights compatibility
of proposed legislation in a timely manner" to influence
parliamentary debates on that legislation[148].
ii) "increase awareness within government
departments that every Bill will be examined …enhancing
Parliament's influence on legislative outcomes[149]."
iii) provide an incentive to the Government to
carry out rigorous compatibility scrutiny of policy proposals
at departmental level[150].
iv) "act as a check on the executive
and "the tendency of governments to extend their powers,
or the liabilities of citizens too greatly, or for unacceptable
purposes at the expense of individual freedom.[151]"
v) Infuse human rights more productively
into the policy process[152]
amongst officials at all levels.
vi) Evidence gathering and monitoring on implementation
of the HRA in central government, among public authorities and
in the courts.[153]
vii) Influence the terms of debate on human
rights outside Parliament as well as in[154].
7.3 Professor Hiebert has suggested that the JCHR's
effectiveness should be assessed not just by its "direct
influence" (such as amendments to Bills) but by its "indirect"
effect on both the public and officials as part of its "central
role in" the scheme of the HRA which establishes a "dialectical
relationship" between the executive, legislature and judiciary[155].
For this purpose, in addition to direct criteria like those above,
the JCHR should be judged for:
viii) "creating and abetting an awareness
within Parliament of the implications" of rights legislation
ix) encouraging "civil society" to
participate in public debate about the appropriateness or justification
of government action
x) create expectations that governments should
explain and justify their actions[156].
7.4 In terms of its working practices, Professor
Hiebert advises that for the work of the JCHR (or any parliamentary
committee) to be "taken seriously", there are four essential
conditions:
a) Reports must be perceived to be motivated
by "principled not partisan deliberations."
b) The Committee must review bills and report
to Parliament within an effective time frame.
c) The Committee must be generally independent
of government.
d) It must "command the respect" of
other parliamentarians[157].
7.5 Grouping all these success criteria into three
categories linked to the role, and relevant core tasks of select
committees more generally (discussed in para 5) the effectiveness
of the JCHR can be assessed in relation to three broad targets:
— influencing policy and legislative formation
and holding the executive to account;
— influencing and informing parliament
and affecting legislative outcomes;
— monitoring and informing the implementation
of the HRA.
8. Policy and legislative formation and holding
the executive to account
8.1 David Feldman, the former legal advisor to the
Committee, commented that "perhaps the most significant way
in which a scrutiny committee [which is how he cast the JCHR]
can be effective is to make departments aware of the matters to
which they should have regard when drafting legislation.[158]"
Lord Lester has suggested that because "human rights scrutiny
is now systematic" by the JCHR, it is "influencing the
preparation of legislation in Whitehall" as well as "the
legislative process itself.[159]"
Several members of the Committee, and senior staff, have expressed
the view that maintaining comprehensive scrutiny of government
Bills is crucial in exercising influence on policy and legislative
formation. The suggestion is that because ministers know that
every Bill will be scrutinised by the Committee's legal advisor,
and any Bill could therefore attract adverse comment by the Committee,
this impacts on the degree of scrutiny for ECHR compliance carried
out by government legal advisors. In the view of Lord Lester
"It is the work of the Joint Committee that has given s19
its potency".[160]
8.2 This is a difficult assertion to evaluate. There
can be little doubt that the requirement to make s19 statements
itself has impacted considerably on the degree of scrutiny afforded
to both policy and legislation in Whitehall. The Cabinet Office
Guidance to Departments requires a two-stage advice process on
the compatibility of Bills: at the policy approval stage and at
Bill draft stage when departmental lawyers may consult with Treasury
Counsel and sometimes the Law Officers[161].
The JCHR has notably succeeded in expanding, a little, the information
Government provides in its section 19 statements[162].
However the Committee has yet to persuade the Government to provide
it with the free-standing Human Rights Memorandum it has requested.[163]
8.3 There is evidence that the correspondence that
the JCHR enters into with ministers, in the absence of an expanded
Human Rights Memorandum, has some (difficult to quantify) impact
on legislative formation. In the Cabinet Office's 2004 Guide
to Legislative Procedures, there is a section on the JCHR
which affirms that the Committee "examines most, if not all,
Government Bills" and "is likely to examine closely
the arguments put forward by the department justifying interference
with a Convention right.[164]"
The Guide advises departments "to identify areas likely to
concern the Committee and prepare briefings ahead of time, if
possible." It suggests that "it may be helpful for Departments
to volunteer a memorandum at the time of introduction informing
the Committee of any human rights issues which the Bill may raise.[165]"
8.4 I interviewed a DCA lawyer and a DCA
policy official for this report. They confirmed that departmental
legal advisers were likely, when considering human rights
compatibility, to include the question "How would
this run by the JCHR?". DCA officials would also have
this in mind if discussing s19 compatibility statements
with other departments. Risk of court challenge is
obviously the more significant factor when giving advice
on compatibility, but that can be "a long way off" whilst
JCHR scrutiny "is more immediate".
8.5 In the experience of these officials, however,
once government ministers have formed a view on s19 compatibility,
advised by departmental lawyers and sometimes law officers, ministers would be
likely to require very persuasive reasons to alter it significantly.
The problem is not the quality of the legal advice from the
JCHR, which is generally appreciated as excellent, but the timing
of when it is received, which is very late in the process, even
if the 2nd reading target is made. Whilst the
JCHR's advice would always be considered carefully, especially
if it raised new points that had not previously been considered, it
would often be rather late in the day to undertake
a major rethink on fundamental aspects of the draft legislation
at that stage. The earlier the advice was received, the more
likely it would be to influence the policy or legislative
formulation. This was commensurate with the views of government
lawyers in a number of departments interviewed for her ongoing
research into 'parliamentary bills of rights' by Janet Hiebert[166].
8.6 It was also consistent with comments of the
former human rights minister, Harriet Harman QC, who commented
in her letter to the JCHR in March that whilst "Government
lawyers will take the Committee's views seriously...in making
or revising a judgment on a Bill's compatibility, Ministers are
bound to look to their own legal advisers." She went on to
state "the impact the Committee has had upon Government
thinking on policy development" has been "most marked
by its influence" on "general arguments of policy...rather
than in the purely legal field.[167]"
8.7 DCA officials felt that the JCHR's impact might
be increased if the Committee were able to influence the legislative
process at a much earlier stage by commenting on policy or draft
bills. They took the view that where policy proposals were
sufficiently 'mapped out' at an early stage for the JCHR to form
a view on the human rights issues they raise, the Committee's comments
could be sufficiently influential to affect policy. As
an example they mentioned the Equality Bill which fell at
the end of the last Parliament and was re-introduced again in
this session. The DCA took on 6 of the 8 points made in the
JCHR 16th report on the Equality Bill. This partly
reflected the technical nature of some of the points, but there
was also more time than usual to consider and take on board the
range of points made, and this could be done without needing government
amendments because there was an opportunity to revise the Bill before
it was reintroduced in the next session. In this sense, they
said, you could argue that the first JCHR report on
the Equality Bill was the equivalent of pre-legislative scrutiny.[168]
8.8 The human rights minister, Baroness Cathy
Ashton, also took the view that the JCHR was highly respected,
but would be more effective in influencing government policy
were it also to review aspects of the government's agenda that
clearly impact on human rights before Bill stage[169].
Examples she cited where JCHR reports could have affected
policy and legislative formation were the 'respect agenda',
counter-terrorism policy and incitement to religious hatred and
free speech issues. She considers the influence of the committee
would be stronger if it did not seek to present itself only
as a technical scrutiny committee on a par with the Delegated
Powers or Statutory Instruments committees whose recommendations
are largely complied with[170].
It is not that the advice of the JCHR is held in less esteem
than that of these scrutiny committees, but that ministers are
aware of the rather more discretionary and controversial nature
- and values-base - of many human rights assessments, which the
courts themselves frequently acknowledge. The Committee would
actually speak with more authority if it were more open about
this. In the human rights minister's view, one of the most
effective ways of holding the executive to account is through
questioning ministers and officials. She would welcome regular
sessions before the Committee, alongside her officials in the
DCA, examining government policy on implementing the HRA
and domestic human rights policy more generally.
8.9 Mike O'Brien, Solicitor General and a
former human rights minister, expressed a similar view about the
high quality of legal advice by the Committee but commented that
"it comes too late." He took the view that the JCHR
might sometimes comment before a Bill is published, either on
draft legislation where available, or on white or green papers
or even policy statements. It would be possible to return to the
issue once a Bill is published and scrutinise it in the light
of the Committee's original advice, he suggested. The Solicitor
General advised that the Committee's influence would be greatest
if it could address dilemmas facing government and parliament.
"The Human Rights Act made an important change to the
way our legal system operates but it also presents a series of
dilemmas which we need to find ways of resolving and the committee
could help us do that." The prime example he gave was
the implications of Article 3 for the deportation of foreign prisoners
or foreign terror suspects.
8.10 Vera Baird, QC, minister at the Department
of Constitutional Affairs, concurred with this view. She said
that the focus of the Committee "needs to be closer to the
agenda of the day" if it is to achieve outcomes. Speaking
as a former JCHR member she suggested that "the comprehensive
principle needs to be reconsidered to review whether it is
compatible with the aim of select committee reports being accessible,
timely and relevant to the current agenda." She expressed
the view that governments are more "open-minded and in
need of consensus to drive changes through" at the pre-legislative
stage, and therefore are more susceptible to accepting changes
to their proposal.
8.11 Current working practices involve very little
emphasis on pre-legislative scrutiny. Table 1 shows
that the Committee has never scrutinised more than 45% of draft
bills in any session and have scrutinised none in the last two
sessions. However in addition to these, Committee staff have
'informally' contributed to draft bill scrutiny by other committees.
The Committee has only reported on one White Paper to date.[171]
9. Informing and influencing parliamentary debates
and affecting legislative outcomes
9.1 The Committee and its staff have identified three
main ways in which the work of the Committee might advise and
influence parliament. It may impact on parliamentary debates,
contribute to amendments to legislation and inform and influence
parliamentarians more generally. These will be evaluated in turn.
9.2 Table 2 shows the number of Bills scrutinised
by the Committee each session from 2001-2. Over 500 Bills have
been considered since the Committee first met in January 2001.
The rate of productivity is impressive and is noted in
virtually all academic discussions of the role of the Committee
and by almost everyone I discussed the work of the JCHR with.
In virtually every session all government bills have been considered
by the Committee. In absolute terms this has averaged at around
35 bills per session regardless of its length. In the current
session, 36 out of 51 Government Bills have been considered.
The rest have not yet been considered, but the session is far
from complete.)
9.3 The number of Private Members Bills (PMBs) considered
has however, reduced markedly over time down from 97 considered
in 2001-2 to none, so far, in the current session.
9.4 The Committee has considered all Private Bills
published since the 2001-02 session, with the exception of the
current, incomplete session, where there are 6 listed as 'not
yet considered' (see table 3). In 2001 the Standing Orders of
both Houses were amended to require the promoters of private bills
to include a "statement of opinion" as to its compatibility
with Convention rights. Requests have been made for the Committee
to scrutinise a number of private Bills in the current session
by Lord Brabazon, Chair of the House of Lords Liaison Committee,
noting that the Committee's scrutiny of a previous Bill "greatly
assisted the Committee on that Bill.[172]"
In a letter to the Chair of the JCHR, Andrew Dismore, Lord
Brabazon expressed the "hope" of the Liaison Committee
of the House of Lords that "a comprehensive bill scrutiny
service" of private as well as government bills "will
be preserved" whatever "adjustments your Committee
may decide to make in the light of [its working practices] review".[173]
Impacting on debates in the Lords and Commons
9.5 Whilst the number of Bills considered by the
Committee has significantly reduced over time, the number and
proportion of Government Bills "drawn to the attention of
both Houses of Parliament" has increased steadily from 11
(30%) in 2001-2 to 23 (64%) respectively in the last two sessions.
The impact these reports have had on debate is harder to ascertain.
An analysis of all references to the JCHR in both Houses of Parliament
for the first 10 months of the current session (2005-6) is reproduced
in Table 4. This shows a considerable variation in engagement
with JCHR reports between the two Houses.
9.6 There were 118 references to the JCHR by 43 Peers
in the House of Lords during this period. According to
our evaluation about 60% of the references in the House of Lords
had a significant impact on the debate or bill process. Others
were casual references to the Committee or its reports. Of the
references in the Lords as much as a third were by JCHR members
and nearly half by one party, the Liberal Democrats. There were
additionally 24 references were in Grand Committee, when arguably
most Bill scrutiny occurs.
9.7 In the Commons there were only 59 references
to the JCHR by just 27 MPs during the same period in 2005-6 and
a quarter of these references were by JCHR members. We estimate
that 45% of these references had a significant impact on the parliamentary
process - on bill scrutiny or in the debate. As would be expected,
given the distribution of Parties in the Commons, most references
were by Labour (64%). There were additionally 24 references in
Standing Committees, where most Bills scrutiny occurs.
Affecting legislative outcomes
9.8 It is very difficult to assess the extent to
which JCHR reports have been directly responsible for amendments
to Bills. Even where there is a clear connection between what
is proposed and an amendment, it is not always possible to assess
how crucial the Committee's proposals have been or whether there
were other more significant sources or reasons for the amendment.
However, Table 5 represents a minimum assessment of amendments
that were either directly a result of JCHR reports or were likely
to be. Out of more than 500 Bills of all kinds considered by
the JCHR since its inception, to the best of our knowledge 16
Government Bills and two Private Bills were amended as a
consequence of JCHR reports, plus two draft Bills and one remedial
order. It is quite possible that this is an underestimate
as there are no reliable records of this process. Conversely this
might be an overestimate in that in 6 cases it is not clear whether
the JCHR was a primary source of the amendment/s, or not. It is
clear that the Committee had a significant impact on amendments
to some Bills such as the Anti-Terrorism, Crime and Security Bill,
the Civil Partnership Bill the Equality Bill, the Mental Capacity
Bill and the Terrorism Bill of session 2005-06.
9.9 In order to increase its influence on the parliamentary
process, the Committee established a self-imposed target of
reporting before the second reading in the second House. Table
6 records the number of Bills each year where this target
has been met. This shows that the vast majority of reports
on government Bills do meet this target, though 11 have
failed to achieve this, so far, in the current session.
Informing and influencing members of parliament
9.10 The few (cross-party) peers I spoke to
informally affirmed the authority and high esteem with which
JCHR reports are generally received in the House of Lords.
The priority given by the Committee to Bill scrutiny is complimentary
to the role and expertise of the House of Lords as a revising
chamber. I was reliably told that the advice of the Committee
is taken very seriously by backbench peers of all parties. It
is certainly the case that peers who are members of the JCHR can
find the reports extremely useful as a basis for their interventions
in debates.
9.11 The different orientation of the Commons,
as the directly elected House of MPs accountable to their constituents,
may explain the somewhat different perception of the JCHR I gleaned
from the few (Labour) backbench MPs I canvassed on an informal
basis. Some drew a distinction between the esteem in which the
Committee's reports are held and their impact on the parliamentary
process. A (non Labour) member of the JCHR observed that "the
House of Commons has never taken the Committee as seriously as
the Lords" and that this applies across parties. One senior
backbencher queried whether the Committee adds value to the
legal advisor and whether the Commons wouldn't benefit more from
a senior legal officer reporting directly to the House on compatibility
with the ECHR? Professor Hiebert, in a paper drafted
for a forthcoming international conference in Melbourne on the
role of legislatures in the protection of human rights, has likewise
commented "If it is important that parliament receive legal
advice on compatibility issues, why not simply provide parliament
with its own legal advisor?[174]"
A recurrent question that arose in the interviews she conducted
for her research, she told me, was "what is the value added
of the JCHR" over the legal advice it receives and transmits?[175].
The senior clerks I spoke to both emphasised the importance of
the JCHR not being seen to be staff-driven, however unfair such
a perception might be, if it is to retain the significant respect
and authority it currently enjoys. The high calibre, and quality
of legal advice provided by both the legal advisers the Committee
has employed, was attested to by everyone I spoke to for this
report.
9.12 The Committee's reports, particularly
those which do not take evidence or place scrutiny in a wider
context, can be difficult for some MPs to draw upon in debates
on policy, though more useful in the Committee stage of Bills
or as a potential source of amendments. One MP commented that
it can be confusing and unwieldy when the same Bill is scrutinised
in different reports. Another commented on the sheer number
of reports produced by the Committee which deterred him from taking
too much note of them. Professor Janet Hiebert made a similar
observation from her research. She said it might be a case of
"more is less" in terms of the influence the Committee
can bring to bear within the House of Commons. One backbencher
made a similar point to the General Solicitor, that the authority
of the Committee would benefit from it addressing 'head on' difficult
issues of policy concerning fundamental human rights such as the
case for and against extending detention without trial beyond
28 days for suspected terrorists or the benefits and dangers of
introducing an equivalent to 'Megan's law' to protect children.
10 Monitoring and informing the implementation
of the HRA: government officials and the general public
10.1 In the 19th report on the work of the Committee,
the point was made that "nearly all our work, including
legislative scrutiny, could be classified under th[e] heading…the
implementation of the Human Rights Act.[176]"
The point alluded to here, presumably, is that the JCHR, in origin
and design, is a 'creature' of the HRA whose scheme envisaged
a significant, and independent, role for parliament (see paras
2 and 4 above).
10.2 The specific work which the report reviews under
this heading, however, is not the role of the JCHR, and its advice
to Parliament, in the implementation of the Act but "evidence-gathering"
and monitoring of the implementation of the Act by other
bodies. This comes under two headings:
i) the extent to which human rights have permeated
the thinking of central Government and public authorities, and
have rippled out to affect the lives of members of the public,
especially in their dealings with those authorities
ii) the effect of the HRA on patterns of litigation
and judicial-decision making.
10.3 The report comments that it would not be
"feasible" to monitor the impact of the HRA in a comprehensive
way. It recommends instead regular sessions with
the DCA human rights minister, and by extension staff from the
Human Rights Division (whilst acknowledging that formal accountability
of the Division to Parliament lies with the Commons Constitutional
Affairs Committee). The current Human Rights Minister, Baroness
Ashton, has made a similar suggestion (see 8.8 above).
10.4 The 19th Report set itself the goal
of "influence[ing] the terms of debate on human rights
outside Parliament as well as in" through both
"our legislative scrutiny work and our more general work.[177]"
This is consistent with the role of select committees as envisaged
by the House of Commons Liaison Committee in its first report[178].
I am informed that a view taken when the Committee was first established
was that public consultation could be best achieved through the
collection of evidence, which is part of the work of all Select
Committees.
10.5 The 19th Report goes further than
this. It comments that although the Committee's legislative
scrutiny is primarily aimed at Parliament, "we naturally
welcome informed media coverage of, and public attention to, our
reports.[179]"
The volume and nature of references to the Committee in the media
is an indicator of its capacity to reach and inform the wider
public. For the last couple of years the Committee staff have
selectively monitored references to the JCHR which they consider
to be topical, or of particular interest to members. There is
a reasonably steady stream of references to the Committee's views
or reports. The Guardian will often describe the JCHR as "authoritative."
The current Chair of the JCHR, Andrew Dismore, has endeavoured
to raise the profile of the Committee through the media, with
some success. On occasion, the Committee has 'made the news',
or had a significant impact on it, for example over some of its
anti-terrorism reports, although it is fair to say that it is
significantly less likely to do so than some departmental select
committees, such as the Home Affairs or Education Select Committees.
It is notable that the Committee has played only a minor role,
if at all, in public debate on some of the major debates of the
day which raise significant human rights issues such as extraordinary
rendition (for which a special all-party group was formed) the
Government's position in relation to British nationals and residents
in Guantanamo Bay, jury trials, the 'respect agenda' and child
protection. It is unclear whether what some backbench MPs have
described as 'the legalistic tone' of many of the legislative
scrutiny reports, is a deterrent to greater engagement with its
findings by both the media and the wider public.
10.6 The three Directors of leading domestic human
rights NGOs I sought comments from for this report all commented
on the 'topicality' or accessibility of the Committee's work.
Shami Chakrabarti, Director of Liberty suggested that " perhaps
the JCHR could reduce the number of Bills scrutinised to conduct
hearings into thematic and systemic human rights issues,
such as the public protection and quasi-judicial roles of the
parole board in the light of the Anthony Rice case, in an attempt
to help counter media hysteria with well informed and considered
analysis." Roger Smith, Director of Justice, whilst emphasising
that "We strongly support the JCHR's scrutiny of
Bills, which we consider essential," commented that "it
makes sense for the JCHR to focus on issues of pressing concern.
In other words, rather than do detailed human rights scrutiny
of every published Bill we would welcome more cursory scrutiny
of minor bills in favour of scrutiny of things like topical White
Papers." Katie Ghose, Director of the British Institute
of Human Rights, which provides training for housing officers
and social workers in human rights principles and standards, suggested
that whilst "the Committee should not lose sight of its vital
legislative scrutiny role" which has produced "some
outstanding contributions… making human rights a reality
is not about the technicalities of law and this must be reflected
in the Committee's choices." She suggested that "choosing
a few Bills to scrutinise would free up time for essential inquiries.
Or the Committee could combine the scrutiny role with an inquiry
into, for example "the scandal of learning disabled parents
whose children are removed from them without support to preserve
their family life."
10.7 With regard to monitoring "judicial decision
making," the Committee's report critically evaluating
domestic case law on the meaning of 'public authority' under HRA
s6 has clearly been influential. NDPBs like the Disability
Rights Commission and charities like Age Concern and Help the
Aged, concerned that the current definition leaves many vulnerable
people in private or charitable residential homes or day care
unprotected by the HRA, have cited the report to press the Government
to expand the definition in line with its recommendations[180].
During the course of the Equality Bill, Baroness Ashton said "the
Government are committed to look for a case in which to address
the issues" and look "carefully at whether we might
do more to address the immediacy of the problem.[181]"
The government have since intervened in a case that raises this
issue[182].
This was arguably as effective an outcome as an amendment
to a government bill in response to a JCHR report.
10.8 The Committee reviews the Government's response
to each set of concluding observations by the UN Treaty Bodies,
as a part of its remit to consider matters relating to human rights
in the UK, which the committee has interpreted as extending to
all internationally recognised human rights standards. This
function provides an opportunity for parliamentary engagement
with the executive-driven treaty monitoring process, although
it would be far more effective if the JCHR reports were the subject
of parliamentary debate. The JCHR also monitors Government
responses to adverse judgements by the European Court of Human
Rights, seeking explanations of the general measures which the
Government is proposing to introduce to prevent the violation
from happening again, and responses and justifications from the
government where these have been delayed[183].
10.9 It is interesting to note that, despite its
formal role in scrutinising Remedial Orders, which the Committee
has discharged (6.6(n) above) it has not extended this responsibility
to monitoring Declarations of Incompatibility (DoI) by the higher
courts under HRA s4 in a timely and systematic fashion.
Although the JCHR has traced government responses to DoIs, it
has not scrutinised them as and when they are made by the courts,
nor systematically recommended to parliament whether, and if so
how, the government should respond to them.
10.10 The higher courts have issued 18 DoIs since
the Act came into force, of which 12 are still standing. In
virtually every case these have led to changes in the law or in
practice. According to the former committee specialist, there
is now an "informal agreement" with government departments
that they will keep the Committee informed about government responses
to DoIs. Where this doesn't happen, Committee staff will prompt
them. However the Committee has played no discernable role in
formally advising parliament about what, if any, these changes
might be or monitoring their effectiveness. Yet the scheme
of the HRA relies on an effective response from parliament to
'Declarations' by the courts that 'their' legislation is incompatible
with Convention rights. This is arguably the most important means
by which "parliamentary sovereignty," or more specifically,
the centrality of parliament's involvement, is maintained by the
Act. As Lord Hope clarified in the case of Shayler, following
a Declaration of Incompatibility, the "decisions as to whether…and
how, to amend the offending legislation are left to Parliament".[184]
11 Challenges and Difficulties posed by Current
Working Practices: opinions and suggestions
11.1 Given the breadth of the Committee's terms
of reference, it is unsurprising that there have been different,
sometimes strongly held views, on the most appropriate and effective
way of interpreting them. There were many discussions of this
nature in the early stages of the Committee (see 6.2). Although
all the former members of the Committee I interviewed stressed
the purposive and harmonious nature of the Committee in the first
and second session, chaired by Jean Corston, there were some differences
of orientation between members as to the appropriate balance between
the Committee's three main functions as they described it - legislative
scrutiny, thematic enquiries and monitoring compliance with the
HRA.
11.2 Even in May 2004 Canadian Professor Janet
Hiebert noted that "tension has arisen on the JCHR as a result
of the differing perspectives of members with legal and non legal
backgrounds" although committee members "did not
consider this disruptive … some believe it provides a healthy
dynamic to the committee's work[185]"One
former member takes the view that a considerable amount
of legal advisor and, to a lesser but still significant degree,
committee member time is used on interventions which are not early
enough to make a significant difference. She said "the
scrutiny role is important but needs to be less anally retentive
to have impact." She recommended greater selectivity
about what Bills to scrutinise and the extension of the scrutiny
function to include green and white papers, as well as draft Bills.
The challenge, she said, is how to maintain scrutiny of
policy within a human rights framework, still guided by the legal
adviser. Even lawyers are not necessarily steeped in human
rights principles and values, she suggested, and could benefit
from advice and training. She said that during her time on the
Committee there was a process of "self-education" in
human rights by Committee members.
11.3 Another member concurred with this view about
pre-legislative scrutiny and suggested that post-legislative scrutiny
should be considered as well -tracking a Bill the Committee has
scrutinised to see if it had the effects in practice the Committee
had warned it might. All the former members I interviewed stressed
the importance of Bill scrutiny but that it was important that
it was not seen as a purely paper exercise, particularly where
rights needed to be balanced against each other, or where the
issue is whether an interference with a Convention right is proportionate,
both of which regularly occur. For the Committee to advise parliament
on proportionality issues, it was said, it is necessary to receive
evidence and interrogate witnesses which is what they had done.
It was possible to combine this approach with the comprehensive
principle, it was suggested, by letting bills that were not controversial
or did not raise human rights issues in the legal advisor's view,
"going through on the nod." It was necessary for
the legal advisor to sift through all the Bills so as not to miss
anything important, it was suggested, but the Committee does not
need to consider Bills that the legal advisor suggests don't raise
significant, or any, human rights issues. One former
member stressed that for the Committee to be effective it is
essential that members read all the papers and stay committed
to the process. " It is not like other select committees
where you can ask a few questions and leave" she said.
11.4 In the current session, chaired by Andrew Dismore,
sharp differences of view have emerged over the focus and priorities
of the Committee. Broadly speaking, some members take the
view that Bill scrutiny should remain the priority of the Committee,
and that it is crucial that the comprehensive principle of scrutiny
of Government bills, at the very least, be maintained. Others
consider that to be effective the Committee should focus on pre
or post-legislative scrutiny and increase the number of thematic
enquiries it undertakes. In the course of my interviews with
them, a majority of members expressed interest in exploring a
combination of these approaches, if that were possible to achieve
(para 11.8 below).
11.5 At one end of this spectrum of views
is the perception that the role of the JCHR is to provide "quasi-judicial
advice to both Houses" as it is through "such
high-minded advice", that the Committee has achieved its
status and authority.
i) In the view of some members that is the prime,
if not sole, purpose of the Committee, although neither
the terms of reference nor parliamentary debates which preceded
its establishment, reflect this. This perspective has been
described to me as the "leit motif" of the committee
by a staff member and as "an article of faith" by a
former member.
ii) The comprehensive principle is viewed
as a vital way of "keeping the government on its toes,"
(see para 8.1). Whilst the JCHR can influence government indirectly
through parliament, the direct effect it is perceived as having
through engaging directly with officials and ministers on the
contents of s19 statements, can be more important. One member
suggested that JCHR reports are helpful to ministers who are sympathetic
to the concerns of the Committee but face difficulties in delivering.
iii) From this perspective it is of paramount
importance that the 2nd reading in the second house
target be maintained and there is considerable concern that
it is becoming more difficult to meet . Spending time on trips
abroad, and lengthy and numerous evidence sessions, are viewed
as the prime reasons why it has been more difficult to achieve
the second reading target in the current session.
iv) Private bills should be scrutinised comprehensively
to meet stated demand (para 9.4) in particular to evaluate "statements
of opinion" about compatibility with Convention rights.
v) PMBs should also be scrutinised where possible,
but there is broad acceptance that there is little purpose in
doing so if they are not likely to make any significant parliamentary
progress[186].
However, where PMBs elicit significant debate, inside or outside
of parliament, even if there is no chance of them passing into
law, there is a view that the Committee should scrutinise them
for compliance with Convention rights.
vi) The purpose of legislative scrutiny is
to point out where there is a "significant risk" of
non-compliance in the view of the courts, not to comments
on its benefits from a human rights perspective, or otherwise[187].
One member suggested that the role of the committee is to endorse,
and where appropriate to question, the views of the legal officer,
not to substitute their own perspectives for his.
11.6 At the other end of the spectrum is the view
that the Committee appears to be almost entirely focussed on
process not outcomes.
i) Scrutinising Bills once they are published
, even where the 2nd reading target is met, is likely
to be effective on only a small number of occasions, as all the
evidence suggests. As it is well understood that the time of maximum
influence is at the policy formation stage, from this perspective
It is hard to understand why the Committee will prioritise
the scrutinising of Bills which have little or no human rights
implications, let alone PMBs which have no chance of passing into
law, over Green or White Papers, or draft Bills.
ii) There is no serious and systematic attempt
to evaluate the effect of Bill scrutiny, or to carry out post-legislative
reviews to monitor whether the law was implemented in the manner
the Committee had predicted. The argument that all bills have
to be scrutinised to act as an incentive to Whitehall to take
s19 statements seriously does not stack up as the Government doesn't
know which Bills will be scrutinised by the JCHR.
iii) Scrutinising every bill is pointless
and there is no coherent narrative to explain why the Committee
does what it does when, with appropriate media engagement,
the Committee could be a powerful voice for advancing debates
about human rights in the UK. Other Select Committees see
their role as increasing awareness or engaging with the public
as well as with parliament e.g. on elder abuse or the smoking
ban. The main audience of the JCHR seems to be expert peers. The
JCHR should be able to engage with the public, as well as parliament
on, for example, counter-terrorism policy within a human rights
framework, or the respect agenda, with or without bill scrutiny.
iv) The 'comprehensive principle' also means
that there is only time for one thematic enquiry to be conducted
a session, it appears, despite member interest in a range
of possible topics (para 6.8).
v) The 'self-imposed strait-jacket,' as one
described it, which flows from an unquestioned allegiance to the
'comprehensive principle,' plus the commitment to monitor
government responses to all UN treaty body reports, distorts
the capacity of the Committee to be flexible like other Select
Committees can be and set the agenda or respond to immediate events
that have enormous implications for human rights and which are
of concern to large sections of the public as a whole. Why
was it not possible for the JCHR to conduct an enquiry into allegations
about 'extraordinary renditions', for example, rather
than attempt to address this pressing issue within the template
of a response to the government's response to an UNCAT report,
some members reflected? An all-party group has been set up for
this purpose, when arguably JCHR is itself such a group.
vi) One legally qualified member said there is
too much 'black letter law' applied to issues. Members should
be carrying out proportionality exercises themselves, where relevant,
based on legal advice. It would be perfectly possible and proper
to evaluate policy within a human rights framework, it was
suggested, bringing the skills and experience of parliamentarians
to bear on vexed questions of necessity and proportionality or
on whether the government is discharging their positive obligations
to protect fundamental rights sufficiently. There are no
end of issues of national importance on which the Committee could
play a unique and significant role, remarked one MP.
vii) One member suggested that by importing the
judgements of the Strasbourg court into the parliamentary process,
the JCHR was illegitimately helping to bypass 'the democratic
process.' It is not for parliament to simply ape the views
of the courts, but to add its own perspective.
viii) A couple of members suggested that non-legal
members of the Committee were left in a passive role with the
committee driven by its staff and legal experts. Members were
not sufficiently educated or empowered by the process of being
on the Committee to be able to explain, unaided, the positions
the committee are taking. Another member observed that the expectation
was that the legal advice should be followed other than in exceptional
situations leaving politicians wondering what their purpose was.
MPs are there to bring the concerns of their constituents to the
Committee's deliberations, it was suggested, and there is little
or no opportunity to do that on the Committee.
ix) The culture of the 'expert peer' dominates
proceedings, it was said, and when MPs suggest alternative
approaches, they are told 'this is the way this Committee has
always operated,' closing down discussion. Human rights are
of national importance and the committee will soon be seen as
irrelevant if it does not intervene more proactively and extensively
to address the complex and difficult issues of the day.
The concerns of the Committee are "too serious to be dealt
with in the pompous, narrow way they often are by the JCHR"
one member commented. Members are there to provide a 'reality
check' to legal advice.
11.7 Areas where there was considerable common
ground (although not necessarily unanimity) include:
i) The Committee staff are all highly professional
and diligent. They are under-resourced for the Committee's
current expected output and rate of productivity.
ii) There is an argument for less paper work
and shorter papers, where possible. The expectations on members,
in order for them to participate meaningfully in the meetings
of the Committee, are onerous and substantially more than on many
other select committees. However it is essential, if the JCHR
is to work effectively, for members to be well prepared.
iii) The efficiency of the Committee would
be considerably improved if the Government would provide it with
the free-standing Human Rights Memorandum it has repeatedly
requested.[188]
iv) It is essential to retain the Committee's
reputation, gained over the last session, for non-party
impartiality and it would be preferable to minimise the number
of dissenting votes or reports where possible.
v) It is crucial for legal advice to be clearly
presented to members in a manner that is accessible and
which facilitates them making their own judgements where appropriate.
If the legal advisor's advice is different from the Chair's where
the issue is controversial, it is essential that this is clearly
signalled to committee members.
vi) It is essential that members of the Committee
are given ample opportunity to feed into, or if necessary amend,
the draft report before it is submitted. The final report should
reflect the views of the Committee as a whole, if at all possible
on the basis of consensus, but where that is not possible, this
needs to be transparent.[189]
One former member, who is also a member of the current Committee,
said that in the previous session amendments were tabled in advance
wherever possible and discussions tended only to take place on
substantive issues. If a similar approach were adopted by the
current committee it would operate on a presumption that amendments
must be tabled in advance unless exceptional reasons require otherwise,
saving considerable time at meetings.
vii) Reports presented to parliament need
to be less dry and technical and more accessible - one
peer suggested they need to be more 'discursive' where possible.
viii) Some of the current disagreements in the
Committee stem as much, if not more, from differences between
the cultures and orientations of the two Houses (para 9.10-9.11)
as between Parties, although there are members from both Houses
who share similar views on the priorities of the Committee.
ix) It is essential that no members of the
Committee feels that their expertise and knowledge is redundant
to the prime purpose of the JCHR or that the Committee is dominated
by the views and perspectives of the staff or legally qualified
members.
x) Problems are caused by irregular attendance
at the Committee, and periodic absence of a quorum, with Peers
more likely to turn up than MPs. This is in part because meetings
are held on Monday afternoons, a time that disadvantages
MPs (especially from outside London) who have constituency
considerations that don't apply to peers.
11.8 A majority of members appeared to hold views
somewhere between the two ends of the spectrum described above.
i) A majority of members are convinced of
the benefits of continuing to scrutinise published Bills and that
legislative scrutiny should take priority over other work.
One member appeared to speak for many when he observed that "we
gain our authority from examining legislation in detail…Likewise
with our thematic reports. It is because of the level and quality
of evidence that we have authority."
ii) There is widespread agreement that the
JCHR must not "tread on the toes of," or become
indistinguishable from, departmental select committees.
A common concern is that if the Committee were to comment on policy
it is important that it does not become indistinguishable from
any other committee examining the same issues.
iii) A number of members were nevertheless
persuaded, or at least open to persuasion, that the Committee
could be more effective if it were to engage at the pre-legislative
stage on certain key issues, commenting on policy statements
(where sufficiently specific) White Papers and draft Bills (where
available) provided it was possible to do so within a human
rights framework. There was also interest in post-legislative
scrutiny, especially of Orders and Rules passed to regulate
statutes that the Committee determined were 'over-broad[190]'
but also of how legislation operates in practice, and whether
it is compliant with the broad purpose of human rights in general,
and the HRA in particular (para 3.10)[191].
iv) There was also concern by a majority
of members that the Committee does not intervene often
enough in a timely fashion on issues where it could be of most
influence because of public concern on a matter of national
controversy. Lord Judd expressed this by saying "Sometimes
we shut the door after the horse has bolted in the way we approach
our work. If the Committee has real significance in relation to
our work in the Lord and Commons our observations of what is being
said [about issues of national significance, in this case the
HRA] would need to be put on record."[192]
v) Most members thought it important that
the Committee continue to carry out thematic enquiries and/or
[what I would call] scrutiny enquiries like the UNCAT and
counter-terrorism enquiries.
vi) Most members see the JCHR as playing
an important role in the implementation of the HRA and
that scrutinising the work of the Human Rights Minister and
Division are important aspects of this work that could be
formalised. Some members thought it important that the Committee
play a more active role in responding to Declarations of Incompatibility.
12 What kind of human rights scrutiny?
12.1 Underlying a number of the difficulties and
disagreements highlighted by members of the Committee are different
perspectives, explicit or implied, on the nature of human rights
and the role of Parliament in their implementation. I am informed
that the Committee were advised from the outset that questions
of compatibility with the ECHR can only be resolved by the courts
case by case on particular sets of facts, and that it
can only offer an opinion by which the Government may or may not
choose to be guided. The Committee were also advised that even
if the Committee judges rightly that a particular provision is
problematic in ECHR terms, it will have the greatest difficulty
in predicting how the courts may react.
12.2 The accuracy of this is borne out in Table
7. This tracks all the cases where the JCHR or its reports
have been cited in judgments by the higher courts up to March
2006.[193]
There were 14 references altogether and in only two did the courts
explicitly agree with the JCHR report cited. In one case this
was to determine that a breach of ECHR Article 8 would be 'justified'
and in the other to comment upon whether a particular scheme breached
the UN Convention on the Rights of the Child. In four cases the
courts disagreed with the JCHR. In the other 8 cases the references
either did not involve an opinion of the JCHR or they were quoting
an opinion that was not at issue in this case. The disagreements
do not imply that the legal advice to the Committee by the legal
adviser employed during this time-frame was inaccurate, but only
that it is with the greatest difficulty that it is possible
to accurately predict how the courts will react. This is partly
due to the fact that all litigation is fact sensitive, and
that the application and interpretation of legislation is not
always predictable from what is written in a statute.
12.3 There are two even more fundamental factors
that make the goal of accurate court prediction a very inexact
'science.' One is the '"discretionary area of judgement"
given to "the decisions of a representative legislature and
democratic government," as Lord Bingham has put it[194]
(see para 3.16). For some senior judges, like Lord Bingham and
Lord Justice Laws, 'deference' to the legislature is one of the
ways of resolving the 'tension' between 'parliamentary supremacy'
and fundamental rights, both of which are upheld simultaneously
by the HRA . As Justice Laws sees it "in some contexts the
deference is nearly absolute. In others it barely exists at all[195].
The implications of this 'doctrine,' simply put, is that the
JCHR can be trying to 'predict' court judgements which in some
instances may never materialise because the courts consider
that the democratically elected legislature (or decision maker)
is the more appropriate body to make the relevant decision. The
more the right is qualified or limited, and the further the issue
is from the 'judicial sphere of competence' (which would include
sentencing policy and due process issues) the more likely it is
that the courts will 'defer' to the legislature, particularly
if the legislature's view has been arrived at after a careful
consideration and proper testing of all of the justifications
put forward for the measure.
12.4 Regardless of the deference the courts will
show to the executive or the legislature, judges themselves will
disagree over Convention compliance, not just because of variations
in the application of the law that can apply in any given case,
but because of the inherently discretionary nature of a great
deal of rights adjudication which often involves the interpretation
of broad, ethical values, sometimes in tension with each other.
This leads to the second factor which makes 'court prediction'
a difficult, some may say inappropriate, exercise. The White Paper
that heralded the 1990 New Zealand Bill of Rights put it like
this: "In a great many cases where controversial issues
arise for determination, there is no "right" answer"[196].
These factors together suggest that the technical scrutiny
model broadly adopted by the JCHR may be a less appropriate
role for a parliamentary committee than was originally assumed.
12.5 There are, of course, issues that
are relatively clear cut and straightforward which can
appropriately draw on settled ECHR jurisprudence to carry out
scrutiny of a relatively 'technical nature'. Examples might
include the absence of an effective appeals procedure; a reverse
in the presumption of innocence; data sharing without remedies;
retrospective application of legislation; ill defined discretionary
powers in broadly expressed legislation and broadly defined offences
lacking legal certainty. Absolute rights to freedom from torture
or slavery, for example, can also be subject to precise evaluations
of legal compliance[197].
But even these types of compatibility questions can often involve
factual issues which require the consideration of evidence, for
example about the 'mischief' the measure is designed to address,
and its actual impact on people in practice.
12.6 Where rights conflict with other Convention
rights, however, or are limited or qualified within the legitimate,
but broad, terms set down in the Convention and other human rights
treaties, the issue at stake is often not wholly, or even mainly,
a matter of 'technical compliance' as such. It is whether
such limitations meet a "pressing social need"
in a democratic society and whether they have been proportionately
applied, or whether a different policy could have been pursued
with similar effects but with fewer incursions on fundamental
rights. These are questions which members of parliament are,
arguably, particularly well placed to consider, as the courts
frequently suggest (para.3.17). This applies to both experts
and specialists in the House of Lords and representatives of constituencies
in the House of Commons whose knowledge and experience
of the practical application of rights and their limitations in
everyday life can, and should, be effectively used to scrutinise
legislation for compatibility with human rights in such circumstances.
(See Table 8 for an illustration of the factors involved
in assessing the 'necessity' and 'proportionality' of limitations
on rights, which can be used by select committees in New Zealand[198]).
Moreover, the more thorough the job that Parliament does in
conscientiously reaching its own views about compatibility
after carefully considering the issues and evaluating the evidence
and arguments, the more likely it is that its legislative
judgments will earn the deference of courts when they are
subsequently called upon to determine the same compatibility questions
in litigation.[199]
12.7 An illustration of the contortions the Committee
can find itself in by 'second guessing the courts,' rather than
evaluating policy itself within a human rights framework, is contained
within the 23rd Report on the Adoption and Children
Bill in the 2001-2 session which scrutinised an amendment
to the Bill to prevent unmarried couples from adopting children
together[200].
The Committee relied on a split decision of the European Court
of Human Rights, plus a judgement from the South African constitutional
court, to suggest that "it is almost inevitable that
the national courts in the United Kingdom would follow the minority
opinion rather than that of the majority" in Strasbourg
to determine that it is not within 'the margin of appreciation'
of English courts to allow discrimination in the field of adoption
on the grounds of marital status or sexual orientation[201].
The report concluded that the amended Bill "is likely
to be incompatible with the rights of unmarried couples"
to protection from discrimination in their capacity to adopt a
child together, relying, in part, on contested Strasbourg
jurisprudence to support this conclusion[202].
What the report could have done instead was a) examine
available evidence, or summons witnesses, to consider whether
there would be any alleged harm or benefit from such adoptions
to children b) use a human rights framework of law and policy
to consider whether such a ban was either 'necessary' or proportionate
to protect such children and c) suggest to parliament whether
such a ban is a breach of human rights principles with regard
to discrimination or whether such a ban is 'necessary' to protect
children. This approach, in which the Committee could express
its own view based on sound human rights principles, rather
than second guess the courts, might resonate far more with both
government and parliament. If the domestic courts were to have
taken the same position as the Strasbourg court on this, would
the JCHR have felt disempowered from taking a different view?
If so that is clearly outside the scheme of the HRA which
allows parliament to disagree with the courts on how legislation
is interpreted and to pass new legislation which overturns the
consequence of a judicial decision. If the JCHR would have carried
out its own proportionality exercise the conclusion would almost
certainly have been the same, but the report could have assisted
the House of Commons, in particular, to 'find its own voice' on
the human rights implications of the adoption ban, an essential
component of the scheme of the Human Rights Act in which parliament
was intended to have a central role, independent from government
(para 2.1).
12.8 The more recent 6th Report on
the Health Bill suggests the beginnings of an alternative
approach[203].
It involved scrutinising the government's proposed partial ban
on smoking in public places. The Committee report mainly relied
on an 'admissibility decision' by the now defunct European Commission,
decided seven years ago, to determine that the state was not 'required'
to introduce a total ban because it fell within the state's 'margin
of appreciation' to decide how to discharge its 'positive obligation'
to protect the right to life[204];
in other words, that it should be a decision of parliament whether,
and if so how, to proceed. This gave license to the Committee
to advise parliament on the 'necessity' and 'proportionality'
of the ban from a human rights perspective, rather than 'second
guess' what the domestic courts might say should they be asked
to determine whether such a ban breaches Convention rights. Whilst
the Health Committee looked at the health implications;
the JCHR examined the human rights implications, using evidence
from the government's Regulatory Impact Assessment to assist it
in determining the necessity and proportionality of the ban, and
whether it would achieve its stated aim[205].
Even so, the report still 'second guessed' the courts - concluding
that the interference with the private life of smokers through
the ban "is in our view likely to be upheld as being
proportionate.[206]"
12.9 Murray Hunt, the Committee's legal adviser,
has suggested that it is important that the Committee expresses
its own view on compatibility rather than an estimation
of the degree of risk that a court will find legislation incompatible.
He gave three reasons for this, which I reproduce in full, with
his permission.
i) It is central to the whole scheme of the
HRA that parliament has a central role in the protection of human
rights and is entitled to take its own view about compatibility
with Convention rights, subject only to the UK's ultimate
obligation as a State to comply with Strasbourg judgements. The
scheme of the Act does carefully preserve parliament's ability
to reach its own interpretation of the Convention and to disagree
with the interpretation of domestic courts subject to the European
Court of Human Rights being the ultimate arbiter of any such disagreement.
ii) The 'degree of risk' approach presupposes
that courts and lawyers have a monopoly over determining whether
a legislative measure is in fact compatible with human rights.
This sends an unfortunate message. It encourages legislators
to think of human rights questions as being technical, legal questions
to which only trained lawyers have access to the answers.
It therefore discourages democratic debate and deliberation about
human rights compatibility when one of the virtues of the HRA
is that it is premised on the view that questions of compatibility
should be subject to democratic debate.
iii) The 'serious risk of incompatibility'
formulation strikes me as being slightly evasive of the issue
at stake, turning the Committee's task into being one of 'prediction'
rather than taking full responsibility for the expression of a
clear view about compatibility.
12.10 Professor Janet Hiebert has recently
expressed similar views, based on her research on the Committee.
She has written "The JCHR has given priority to scrutinizing
bills from a rights perspective. In so doing, it has interpreted
its role in legalistic terms - applying relevant jurisprudence
and anticipating future court rulings - relying heavily on the
opinion of its legal advisor." However "the HRA was
specifically designed to broaden judgments about rights, so judges
are not the only actors to consider how Convention rights should
guide or constrain legislative and other state actors. The
HRA specifically envisages parliament as a venue for debate about
the justification of legislation from a rights perspective.[207]"
12.11 Professor Hiebert suggested that an alternative
approach to the one currently used by the JCHR could involve "political
actors" who "would take a more active role determining
the scope of rights and how rights should constrain state actions."
This approach "may also consider a positive dimension
to rights; how rights should guide governmental decisions to redress
social problems or inequalities that arise from differing resources,
power, or social prejudices." This path could still
involve politicians taking into account "normative"
values distilled from the relevant jurisprudence as explained
by legal advisors, but what would distinguish this approach
would be "the extent to which political actors were willing
to deliberate about the justification of proposed legislation
from a rights perspective, and not simply equate morally appropriate
judgments with lawyerly assessments of existing or anticipated
judicial opinion.[208]"
12.12 Similarly, legal academic Danny Nicol,
comments in Legal Studies that "the JCHR…tends
to restrict itself to making predictions as to whether legislative
provisions breach the ECHR. It does not initiate a debate about
[what the rights in ] the ECHR ought to mean." This can have
the effect that "legislators argue like judges whilst
courts assume a legislative role…the boundaries between
law and politics disintegrate and the separation of powers ceases
to be a worthwhile concept.[209]"
13. Conclusions
13.1 The expression of sharp differences between
members on the purposes and working practices of the JCHR masks
some significant common ground amongst the majority of members,
once their perspectives are subject to closer examination. There
are undoubtedly strongly held views by two or three members of
the Committee that are probably irreconcilable with each other.
They revolve around two opposing views on the purpose of the
Committee.
i) One set of views considers the prime, or even
sole, purpose of the JCHR as providing 'quasi-judicial' legal
advice to Parliament, thereby both directly and indirectly influencing
government in the process. This is reflected in the 19th
report on the work of the Committee, which states "The perspective
from which the Committee makes [its] analysis of legislation
and policy is a "clearly defined legal perspective of
conformity with human rights law.[210]"
ii) The other set of views perceives the prime
function of the JCHR as advising parliament in a sufficiently
timely and accessible manner to help frame the agenda on issues
of national importance concerning human rights, engaging with,
and responding to, the public in the process. The executive
is 'held to account' through the resonance of JCHR reports
and proposals within parliament and beyond and the
extent to which they address difficult 'human rights dilemmas'
confronting both government and society.
13.2 The majority of members, however,
have expressed the view that the JCHR should strive to accommodate
both of these orientations within its work programme to varying
degrees[211].
The question for them is what priority should be accorded
to each within current, or realistically achievable, resources
and what approach should be used to achieving them?
13.3 Although the JCHR is not mandated
by its terms of reference to scrutinise published legislation
it took the decision, very early on, that this would be the prime
focus of its work. There is no question that some of the Committee's
authority, notably in the House of Lords and amongst key
stake holders, lies in the high quality and thoroughness of its
reports, and in particular their legal analysis. Based
on our analysis of the current session, It is fair to say that
JCHR reports are quoted significantly less often by a smaller
number of members in the Commons (only 27 on the floor of
the house) than in the Lords and the relative impression they
appear to make on the respective houses is reflected in this disparity
(Table 4 and paras 9.6-7). Some MPs on the Committee
are doubtful about the value of Bill scrutiny therefore. The
number of amendments to legislation attributable to JCHR reports
as a proportion of Bills scrutinised would tend to bear out this
scepticism (table 5).
13.4 It would seem an extraordinary decision,
nevertheless, were the Committee to abandon legislative scrutiny
altogether as a significant element of its work. Given
that it is not a departmental select committee and benefits from
the expertise and 'reach' of being a Joint Committee of both Houses,
the scrutiny of legislation for compliance with human rights
principles seems to most people I interviewed a sensible and uncontroversial
element of the Committee's work. The more difficult issues,
which many members have given considerable thought to, are some
of the following:
a) What should be scrutinised?
b) How to scrutinise?
c) Which enquiry functions should the Committee
perform and what priorities should be accorded to them?
d) The relative priority given to legislative
scrutiny over other functions of the Committee ?
13.5 I have suggested above that given the crucial
role of the legislature under the scheme of the HRA, and the broad
and ethical nature of human rights, a primary question
for the JCHR to consider in its examination of its working practices
is as follows: how can the Committee most usefully assist parliament
in determining how legislation should be framed, and policies
developed
i) in a manner that is not technically incompatible
with the settled jurisprudence of the ECHR now incorporated
into our law through the HRA ( which in reality applies to
a relatively narrow band of technical but fundamental principles
if the doctrines of a 'margin of appreciation' and 'discretionary
area of judgement' are taken into account)
ii) but which reflects the purposive
nature of human rights, best understood as a set of fundamental
values associated with liberal democracies, drawn from a range
of recognised domestic and international sources.
What to scrutinise?
13.6 One of the main reasons cited for comprehensive
scrutiny of government bills is the impact this is said to have
on officials drawing up government policy and legal advisors drafting
Bill memoranda on ECHR compliance for the Legislative Procedure
Committee. The commons clerk and legal adviser give as the main
reason for maintaining the comprehensiveness principle in relation
to government bills the knowledge that the JCHR conducts such
comprehensive scrutiny which is said to operate as an important
discipline on departmental policy makers drawing up policy and
drafting legislation.
13.7 The DCA officials I interviewed confirmed
this view to the extent that departmental legal advisers were
likely to consider how the JCHR would respond to their advice,
although the risk of court challenge is the far more significant
factor. However once government ministers have formed a
view, they are mostly unlikely to alter it significantly
as a result of JCHR reports, however authoritative. This observation
was commensurate with the views of government lawyers in a
number of departments interviewed by Professor Janet Hiebert
(paras 8.4-5). They are also consistent with our analysis of
the impact of JCHR scrutiny reports on amendments to government
bills (table 5). Our evaluation suggests that out
of 178 government bills considered by the JCHR since the beginning
of the 2001-2 session, only 11 were amended as a direct consequence
of JCHR 'risk assessments.' (para 9.8).
13.8 The same DCA officials advised that the Committee
could be far more influential if it were to intervene at an earlier
stage in the policy process and scrutinise green or white papers
or draft bills. Provided they are sufficiently robust, policy
statements that have serious human rights implications, like the
'respect agenda' or 'child protection strategies' could also be
scrutinised and evaluated by the Committee within a human rights
framework (para 8.7). The three ministers I spoke to were firmly
of the view that early scrutiny is likely to be a far more effective
approach to influencing government than commenting on draft Bills,
wherever this is possible (paras 8.8-10).
13.9 The Committee has only reported on one White
Paper to date and one policy paper (the Respect Action Plan;
see below). It has never scrutinised more than 45% of draft
bills in any session, with none in the last two (Table
1)
13.10 Other than scrutinising a limited amount of
delegated legislation (para 6.6 (m)) it has done no post-legislative
scrutiny either and none to track the effect of a Bill
in practice. One of the fundamental principles of the European
Court of Human Rights is that rights should be 'real and effective'
and not just 'formal' (para 3.10) There are currently no serious
attempts by the Committee to evaluate the effectiveness of
rights in practice, or the implications of limitations
on rights for their effectiveness. The Law Commission has produced
a consultation paper on Post-legislative Scrutiny.
It distinguishes between a narrow review which might examine such
factors as difficulties of interpretation and unintended consequences
of the legislation and " a broader form of review" which
might examine whether the policy objectives of the legislation
have been achieved and whether steps need to be taken to improve
its effectiveness[212].
13.11 The Safeguarding Vulnerable Groups Bill
which was introduced to the House of Commons on 8 June (a
Bill whose second reading target has not been met by the Committee
because of other pressing priorities) could lend itself very
well to piloting post-legislative scrutiny. It sets up a new
vetting and barring scheme for people who work with children and
vulnerable adults. Post-legislative scrutiny would allow the Committee
to receive and review evidence to determine whether the procedures
are effective in meeting the objectives of the Bill and whether
the rights of employees, or potential employees, are disproportionately
affected by its provisions. One of the disadvantages of limiting
scrutiny to Bill scrutiny is the lack of opportunity to assess
a) how effective legislation is b) how capable it is of fulfilling
government's positive obligations to protect rights, an
obligation that Bill scrutiny on its own is not often well suited
to establishing.
13.12 The Committee also does not systematically
track and comment on Declarations of Incompatibility by the courts,
even though the scheme of the HRA relies on parliament to
determine whether, and if so how, to respond to such Declarations.
If parliament does not do so directly itself, then 'parliamentary
sovereignty' remains 'executive sovereignty' in all but name.
How to scrutinise?
13.13 For some members, a significant deterrent
to pre and post-legislative scrutiny is the concern that the JCHR
will become indistinguishable from departmental select committees
which review policy and it will lose its authority in the process.
13.14 The current approach to scrutiny of published
bills relies primarily on an estimation of the 'degree of risk'
that a court will find legislation incompatible. The focus
is on predicting how the domestic courts are likely to judge the
legislation in question, based mainly on the jurisprudence of
the European Court of Human Rights or case law from the domestic
courts interpreting the ECHR. The Committee only rarely makes
judgements for itself on whether legislation is compatible or
not . This is despite the fact that the courts not infrequently
'defer' to 'elected representatives' in making discretionary human
rights judgements, on the grounds that they have greater legitimacy
and capacity, in particular when rights collide or are limited
on the grounds of meeting an important social purpose (paras
12.3-6).
13.15 This importing of a 'quasi-judicial' approach
into parliament sits uncomfortably with the scheme of the HRA
which was intended to allow Parliament the 'final say' on legislation
(paras 12.10-11). If this is not to translate as allowing government
'the final say' on legislation in practice, parliament needs
to make independent judgements about compatibility, particularly
in circumstances that involve the assessment of evidence and weighing
of values and where the courts themselves can't rely on technical
legal principles alone. This is a view with which the legal advisor
to the committee concurs (para 12.9)
13.16 There are, of course, circumstances where it
is appropriate for the Committee to draw on settled ECHR (or other
human rights) jurisprudence to carry out scrutiny of a relatively
'technical nature' (para 12.5). But if the Committee is to develop
its own human rights assessments, rather than second guess the
courts (which Members and staff of the committee recognised from
the outset are very difficult to predict) it will need to rely
more frequently on written and oral evidence. Currently witnesses
are called in only a handful of bills that are scrutinised.
13.17 Virtually all informed commentators I spoke
to suggested that government policy needs to be scrutinised at
an earlier stage in order for the Committee's advice to be more
effective and timely. This could mean scrutinising policy at various
stages of development (once it is sufficiently formed) as well
as the legislation itself. Vera Baird QC, a former member of
the committee, suggests that the challenge is to keep scrutiny
of policy within a human rights framework and that it is perfectly
possible to do this, provided members, guided by the legal advisor,
are grounded in human rights principles which can be applied to
evaluate the necessity and proportionality of proposed measures
that limit individual rights.
13.18 The government's Respect Agenda
is a case in point. It was originally published as an Action Plan
on 10 January 2006. Its principles were said to be based on:
— a duty and a responsibility on the citizen
to respect the rights of others
— a duty on the state to protect the vulnerable
from significant harm
— a duty to uphold the rule of law in a
system which is efficient and fair.
These are all matters of central concern to a
human rights framework, drawn from any source of human rights,
nationally or internationally. The Action Plan was ripe for
scrutiny from a human rights perspective. Very unusually it was
scrutinised by the Committee in advance of its incorporation into
the Police and Justice Bill. The approach used was primarily a
legal one to scrutinise two aspects of the plan in particular
- conditional cautions and unpaid work and contracting out parenting
orders functions -which were the subject of a letter by the Chair
to the Home Secretary[213].
These were important issues for the Committee to scrutinise, of
course. But pre-legislative scrutiny could also have afforded
an opportunity for the Committee to take and receive
evidence on the three principles (above) on which the Plan
is said to be based in order to suggest what a human rights
framework based on those principles might offer to the policy
objectives of the Plan. The purpose could have been to try
to influence the government before the Bill was published, both
through the usual methods the Committee uses of writing letters
and seeking clarifications on specific points, but also through
seeking to attract public interest (via the media and other channels)
in what might have been an alternative approach to fostering mutual
respect, than the one presented by the government.
Enquiries
13.19 Government Ministers, Directors of Human Rights
NGOs and some members of the Committee all expressed regret
that the Committee only rarely seeks to shape the national agenda
on the major human rights interests of the day (paras 8.9-10,10.5-6,
11.8 (iv)). When the Committee does intervene on issues of current
public interest, like 'extraordinary renditions,' deportations
of suspected terrorists to countries where they may face torture,
indefinite detentions of suspected terrorists and so forth, it
is generally through the lens of Bill or treaty scrutiny. There
is a case for the JCHR to ' free itself up,' like most other
select committees do, to review and comment on major human
rights issues whether or not they are subject of legislation (or
a treaty monitoring body report ) at the time that it is fruitful
for the committee to enquire into them.
13.20 During this session the Committee has carried
out two major 'scrutiny enquiries' on torture and counter-terrorism.
These have involved Bill/treaty scrutiny in a wider context
of policy review, using the techniques of evidence gathering and
witness interrogation generally associated with thematic enquiries
(para 6.10). Some members have felt that this was not a good use
of the Committee's resources, given that the time involved in
conducting 'scrutiny enquiries' of this nature has inevitably
impacted on the capacity of the Committee to maintain a 'comprehensive
bill scrutiny service,' where witnesses would be called, or evidence
examined, in only a handful of bills. However, in the course of
my interviews with them, a majority of members expressed support
for continuing to conduct 'scrutiny reviews' where bill
scrutiny raises significant human rights policy issues
that cannot be resolved through 'paper scrutiny' alone (e.g the
use of intercept evidence in court or the approach to detaining
'terror suspects' in other European states). The implication
of this, it is understood, is that there will need to be greater
flexibility about, and prioritisation of, other work.
13.21 The ongoing nature of the two major scrutiny
enquiries, combined with the continuing focus on bill scrutiny,
has meant that there has been less time to conduct 'thematic
enquiries' than some members would have wished. The current
'thematic enquiry' into human trafficking also involves reviewing
the implications of ratifying the European Convention on Action
against Trafficiking in human beings (para 6.8) and in this sense
is not only a 'thematic enquiry,' like the Deaths in
Custody report. The forthcoming Commission for Equality
and Human Rights, will have the power to conduct
thematic enquiries. It may be that the Committee could be
more effective in 'holding the executive to account', and influencing
debate in parliament and beyond, by prioritising enquiries
into pressing issues of major national concern, or scrutiny enquiries
which combine bill scrutiny with a wider policy context, over
thematic enquiries (para 6.8).
Relative Priorities
13.22 Most members of the committee see a strong
case for combining bill scrutiny with 'agenda setting enquiries'
and 'scrutiny enquiries,' although there are members who see
no case for carrying out any functions besides bill scrutiny and
others who, conversely, are unpersuaded of the merits of bill
scrutiny. The question that most divides members, however,
is whether bill scrutiny should be comprehensive
or not. The strength of the case for maintaining this principle,
on the basis that the knowledge that the JCHR scrutinises bills
is an important discipline on departmental policy makers,[214]
is not borne out by this research to any significant extent, nor
the research of Professor Janet Hiebert (13.5-7). It is anyway
the case that provided a significant number of bills are scrutinised,
whatever 'deterrent effect ' applies is likely to still
operate, as departments will not know which bills will
be selected. The evidence, whether direct testimony from
officials and ministers, or inferred from the proportion of bills
that have been amended as a result of JCHR reports (table 5),
suggests that bill scrutiny is not having the significant impact
on legislative outcomes that is sometimes claimed for it.
It may be that occasional well-timed enquiries on human rights
issues of national significance - from the respect agenda and
child protection to the use of control orders or the removal of
juries in fraud trials -could enhance the reputation of the
committee, and of the human rights framework in general, as providing
effective tools for resolving some of the most difficult dilemmas
we face today. Combined with pre-legislative and post -legislative
scrutiny, where appropriate, this could potentially increase the
'stock' of the JCHR when its bill scrutiny reports are received,
particularly, but importantly, in the House of Commons.
13.23 One implication of a more flexible approach,
in which the committee 'frees itself up' to determine the balance
of its bill scrutiny with other functions, depending on other
pressing concerns, is that the second reading target is more
likely to be met for the smaller number of bills scrutinised.
In the current session 11 government bills have not been considered
before the second reading of the second house, which is of some
concern to a number of members (table 6).
13.24 The reality is that the comprehensive principle
is no longer applied in practice to the degree that it was[215]
in the earlier sessions largely due to the de facto decision
to prioritise 'scrutiny reviews' on torture and counter-terrorism
over the scrutiny of private members bills. The latter have
reduced from 97 in 2001-2 to none in the current year (para 9.3;
table 2). The Committee has maintained comprehensive scrutiny
of Private Bills since 2001-02, but with 6 Private Bills not yet
considered in this session (table 3). The number of
government bills scrutinised has remained steady although there
are 14 'not yet considered' and 11 have not made the second
reading target in this session. In its 19th report
of its work in the last session, the Committee acknowledged the
many "difficulties encountered" in maintaining this
target[216].
The Legal Adviser is of the view that on the current level
of resources it is not possible to reinstate the former approach
to comprehensive bill scrutiny, including PMBs[217].
13.25 There is a case to be made, based on the
pivotal role of parliament under the HRA, for prioritising the
scrutiny and monitoring of Declarations of Incompatibility by
the courts over even comprehensive government bill scrutiny.
If the Committee were to further prioritise the bills they scrutinise
by raising the threshold for determining "significance"
(see below) and producing one clear and accessible report on
each bill, rather than a series tracked in 'progress reports',
it is likely the Committee's reputation might rise due to an
increase in the clarity of its output and purpose . As Professor
Hiebert observed in an interview with me based on her research,
it may be a case of "more is less" in terms of the
influence the Committee can bring to bear within the House of
Commons, at least.
13.26 Before determining any specific changes
to working practices with regard to bill scrutiny, and the relative
priority that should be accorded to the various functions of the
Committee, the most fundamental questions for members
to consider are:
i) the prime purposes of the Committee within
the context of the scheme of the HRA which envisaged a specific
role for parliament in the implementation of the Act (paras 2.4-2.9
; 3.14-3.19).
ii) how the Committee can most be effective in
achieving its goals (para 7.2 ; 13.1)
iii) the kind of scrutiny and reviews it considers
are most appropriate for achieving i) and ii) in the context of
an appreciation of human rights as a set of broad values and fundamental
principles, rather than a set of technical rules.(paras 3.1-3.13).
14 Options and Recommendations
The Constitution Unit, in a well regarded report
on human rights legislation published in 1996, proposed that a
human rights committee be established and that "the decision
as to the balance of priorities" for its work "would
rest with the committee itself and would certainly need adjustment
over time." This is the opportunity, rightly foreseen, for
members to review the Committee's " balance of priorities."[218]
Based on the views of members as expressed to me, and this review
of the aims and purposes of the committee, as well as its current
working practices, there are three potential options members could
consider. Each of these should only be considered in the light
of the research, reflections and comments in the rest of the report.
They will have little meaning or significance outside that context.
The Committee may need to revisit this review when the CEHR
comes on stream towards the end of 2007.
Option A
— Provide a comprehensive 'bill scrutiny
service,' to both Houses of Parliament as the major purpose of
the Committee.
— Ensure that all government and private
bills meet the 2nd reading target as a matter of first
priority.
— Scrutinise all PMBs which a) receive
2nd reading in either house b) elicit considerable
public interest c) at the specific requested of the bill sponsor.
— Only call witnesses or examine wider
evidence in a handful of bills of exceptional significance
— Scrutinise treaty monitoring body reports
and government responses to these.
— Monitor government compliance with European
Court of Human Rights decisions and extend this to Declarations
of Incompatibility issued by domestic courts
— Only occasion call ministers as witnesses
for specific purposes, provided this does not incapacitate the
2nd reading target.
— Scrutinise draft bills where possible
but only scrutinise other pre-legislative policy documents or
White Papers on an exceptional basis and not at the expense of
meeting the 2nd reading target.
— Continue to press Government to provide
a Human Rights Memorandum or more detailed Explanatory Notes on
s19 statements that accompany each bill.
Option B
— Only scrutinise published government
bills and only on an exceptional basis, usually where they are
of major human rights significance. No longer consider that the
purpose of the committee is to provide a 'bill service' on any
kind of bill.
— Conduct regular 'thematic enquiries'
on human rights issues of relevance to the wider public, using
the approach and techniques associated with departmental select
committees.
— Seek to raise the profile of the Committee
by conducting enquiries on significant human rights issues of
national concern. Examples in the current session might have included
reviewing allegations about the UK's role in so-called 'extraordinary
renditions' or the implications of introducing the equivalent
of 'Megan's Law' into the UK.
— Ensure there is sufficient 'slack' to
be able to respond rapidly to major unexpected developments, such
as conducting a review into claims that the Probation Service
or Parole Board are becoming 'distracted' by human rights concerns
or into the operation of the HRA within public services more generally,
in the context of the government's wider review.
— Conduct pre- and post- legislative enquiries
at the time where they are most likely to be of influence, for
example into the implications of extending detention without full
trial beyond 28 days or into the effects of the Government's 'Respect
Agenda' on young people in specific localities, after the Police
and Justice Bill has come into force.
Option C
— Retain the intention to scrutinise and
report on all Government Bills which raise "significant human
rights issues," and all private bills whenever feasible,
in the context of the role allotted to Parliament in the scheme
of the Human Rights Act,
— Only scrutinise PMBs on an exceptional
basis, and only if they have a serious chance of becoming law
or are of major national significance.
— Revisit the definition of "significant"
human rights to elaborate further on the criteria used to decide
significance, which may be expanded to include government obligations
to 'protect' rights as well as refraining from breaching them.
Committee members to engage with this process as an opportunity
to reassess meaning and scope of human rights.
— Delegate to the legal adviser the responsibility
to develop a system for sifting all Government Bills to
determine if a) they reach the new 'significance' threshold b)
they reflect a 'pattern of incompatibility' threshold which the
legal advisor will draw up based on past patterns of repeated
incompatibility.
— Only report on Bills which meet these
two sets of criteria to the Committee and to the House and no
longer spend Committee time on Bills that do not raise a 'significance'
or 'pattern of incompatibility' issue.
— Frontload the timetable so that the legal
adviser and Committee decide whether a Bill is sufficiently 'significant'
(based on criteria above) to be reported to the House within 2-3
weeks of publication.
— Try to ensure that each Bill is reported
in its own freestanding report wherever possible, to increase
accessibility and comprehension for MPs and Peers.
— Consider the case for the Committee carrying
out its own assessment of compatibility, in its own 'less
technical voice' when appropriate -in particular where
proportionality considerations apply - based on the examination
of witnesses and evidence, rather than necessarily determine 'risk
of incompatibility' by 'second guessing' the courts.
— Use the additional time freed from streamlining
bill scrutiny for considering some or all of the following functions
when appropriate
i) reporting on all Declarations of Incompatibility
issued by the domestic courts, advising parliament on whether,
and if so how, the government should respond to them
ii) Conduct pre- and post -legislative enquiries
at the time where they are most likely to be of influence (see
option B).
iii) Continue to carry out 'scrutiny enquiries,'
where appropriate, of the sort that have been piloted this year
on counter terrorism and torture, where Bill scrutiny can be conducted
in a wider policy context.
— Hold regular sessions with the Human
Rights minister and staff on the implementation of the Human Rights
Act and other related human rights issues
— Ensure there is sufficient 'slack' to
be able to respond rapidly to major unexpected developments and
seek to raise the profile of the Committee by conducting enquiries
on significant human rights issues of national concern (see option
B).
— Continue to monitor treaty body reports
and Strasbourg decisions if there is capacity to do so.
— Continue to press Government to provide
a Human Rights Memorandum (see option A).
Should members choose option C, they will need to
consider the case for pressing for further resources, in particular
for an assistant to the legal adviser to carry out an efficient
streamlining and sifting capacity.
Table 1: Draft Bills reported on by the JCHR by
session
Parliamentary Session
|
Total number of draft bills published
|
Number reported on by JCHR
|
Percentage
|
2000-01
|
2
|
0
|
0%
|
2001-02
|
7
|
3
|
43%
|
2002-03
|
9
|
4
|
45%
|
2003-04
|
12
|
4
|
33%
|
2004-05
|
5
|
0
|
0%
|
2005-06
|
2
|
0
|
0%
|
Notes
The JCHR have also
reported on one white paper (Schools White Paper, 9th
report 2005-06) and two draft orders (Draft Prevention of Terrorism
Act 2005 (Continuance in force of sections 1 to 9) Order 2006,
12th report 2005-06; The Draft Criminal Justice Act
2003 (Categories of Offences) Order 2004, 2nd report
2004-05).
In addition to the
Draft Bills on which the JCHR reported, they have informally given
their input at staff level on the human rights implications of
the draft Mental Health Bill (2003-04) and the draft Legal Services
Bill (2005-06).
Table 2: Number of Bills considered by the JCHR
per session
Parliamentary Session[219]
|
Number of Gov Bills published[220]
|
Number of Gov Bills considered by JCHR
|
Number of Gov Bills JCHR commented substantively[221] on
|
Number of Private Members' Bills considered by JCHR
|
Number of Private Bills considered by JCHR
|
Total number of Bills considered by JCHR
|
2001-02
(20.06.01 - 07.11.02)
|
39
|
37
|
11
|
97
|
11
|
145
|
2002-03
(13.11.02 - 20.11.03)
|
36
|
36
|
15
|
74
|
2
|
112
|
2003-04
(26.11.03 - 18.11.04)
|
35
|
35
|
17
|
70
|
4
|
109
|
2004-05
(23.11.04 - 11.04.05)
|
34
|
34
|
24
|
53
|
5
|
92
|
2005-06 (17.05.05 - ) up to 20 June 2006
|
51
|
36
|
23
|
0
|
5
|
41
|
Including Bills listed as 'not yet considered' by the JCHR this session,[222] the figures could rise to the following totals:
|
2005-06 outstanding bills from 20 June 2006
| |
50
(14 listed as 'not yet considered')
| |
14
(14 have received a second reading)
|
11
(6 listed as 'not yet considered')
|
75
|
Table 3: Number of Private Bills published per session
Parliamentary Session
|
Number of Private Bills published
|
Number of Private Bills considered by JCHR
|
2001-02
| 11
| 11
|
2002-03
| 7[223]
| 3
|
2003-04
| 6[224]
| 4
|
2004-05
| 5
| 5
|
2005-06
| 11
| 5[225]
|
Table 4: Analysis of JCHR references in Hansard for session
2005-06[226]
WHO
IS CITING
JCHR - THE JCHR
MEMBERS?
| WHERE CITED
| TOTAL NUMBER OF REFERENCES
| NUMBER BY JCHR MEMBERS
| PERCENTAGE OF TOTAL
|
| Lords
| 118
| 38
| ~33%
|
| Lords Grand Committee
| 24
| 5
| ~20%
|
| Commons
| 59
| 15
| ~25%
|
| Commons Standing Committee
| 24
| 13
| ~50%
|
Overall average
of 32% of references made by JCHR members
WHO
IS CITING
JCHR - WHICH PARTIES?
WHERE CITED
|
TOTAL NUMBER OF REFERENCES
|
TOTAL BY LABOUR
|
TOTAL BY LIB DEM
|
TOTAL BY CONSERVATIVES
|
TOTAL BY OTHERS
| TOTAL NUMBER OF PEER/MPS MAKING THE REFERENCES
|
| Lords
| 118
| 39
| 46
(40% of total)
| 17
| 16
| 43
|
| Lords Grand Committee
| 24
| 8
| 11
(45% of total)
| 4
| 1
| 12
|
| Commons
| 59
| 38
(64% of total)
| 13
| 8
| 0
| 27
|
| Commons Standing Committee
| 24
| 6
| 16
(66% of total)
| 2
| 0
| 7
|
| Percentage of total
| (225)
| ~40%
| ~40%
| ~14%
| ~8%
| |
DID
THE REFERENCES
HAVE A
SIGNIFICANT IMPACT
ON THE
PARLIAMENTARY PROCESS?
| WHERE CITED
| TOTAL NUMBER OF REFERENCES
| NUMBER HAVING A SIGNIFICANT IMPACT[227]
| PERCENTAGE OF TOTAL
|
| Lords
| 118
| 71
| ~60%
|
| Lords Grand Committee
| 24
| 9
| ~40%
|
| Commons
| 59
| 26
| ~45%
|
| Commons Standing Committee
| 24
| 16
| ~66%
|
Overall average
of 50% of references judged to have had a significant impact on
the Parliamentary process.
Source of information: House of Commons Library
Table 5: Amendments made as a result of JCHR reports
Parliamentary Session
|
Total number of bills considered by JCHR
|
Number of bills[228] amended as result of JCHR report
|
Other amendments[229]
| Of these, number where it is not clear JCHR was source of amendment
|
2000-2001
(06.12.00 - 14.05.01)
| 5 |
1
| 0 | 1
|
2001-02
(20.06.01 -
07.11.02)
|
145 |
2
|
1 |
0
|
2002-03
(13.11.02 - 20.11.03)
|
112 |
5
(including one Private bill)
|
1 |
2
|
2003-04
(26.11.03 - 18.11.04)
|
109 |
6
(including one Private bill)
|
1 |
1
|
2004-05
(23.11.04 - 11.04.05)
|
92 |
0
|
0 |
-
|
2005-06
(17.05.05 - ) up to 20 June 2006
| 41 | 4
| 0 | 2
|
See the attached
annex to this table for more information on the amendments.
NOTE
This table is based on evidence we have found suggesting
amendments were brought in response to JCHR reports. It is quite
possible that this table is incomplete as there are no reliable
records kept of this.
SOURCES
1. JCHR, The Work of the Committee in the 2001-2005
Parliament, 19th report 2004-05 and other JCHR
reports
2. Murray Hunt, Legal Adviser, JCHR
3. David Feldman, Parliamentary scrutiny of legislation
and human rights, [2003] P.L. 323
4. Hiebert, Parliament and the Human Rights Act:
Can the JCHR help facilitate a culture of rights?, (2006)
4(1) International Journal of Constitutional Law, 1
Annex
to Table 5: Evidence of amendments made as a result of JCHR reports
All Government bills unless indicated otherwise:
Criminal Justice and Police Bill of session
2000-01
JCHR had serious concerns about Part II of the bill,
on disclosure of information between investigative agencies in
the UK and abroad. Their concerns related to safeguards for privacy-related
rights. This part of the bill was eventually dropped but only
because the government wanted to rush as much of the bill through
its final stages as possible before proroguing Parliament in preparation
for a general election.[230]
[Recorded on table as not clear JCHR was source of
amendment]
Anti-Terrorism, Crime and Security Bill of
session 2001-02
Gov felt compelled to make some amendments that reflected
JCHR concerns:[231]
"We accordingly welcome the amendment to clause
21(1) of the Bill, made in Committee in the Commons, to introduce
a legal requirement for reasonableness relating to a decision
to certify a person as a suspected international terrorist."
(para 8, 5th report 2001-02)
"A further matter which the Home Secretary agreed
to reconsider was the definition of 'international terrorist'
in clause 21(2). In particular, we considered that the category
of people under clause 21(2)(c) who have 'links with' an international
terrorist or international terrorist group was too vague and indeterminate
to satisfy the requirement for certainty which forms part of the
basis for the lawfulness of a detention under Article 5 of the
ECHR. We welcome the amendment, during the Committee Stage
in the House of Lords, to clarify the connection which would justify
bringing someone within the detention provisions. The amended
version of clause 21(2)(c) limits it to people who have links
with international terrorist organisations, while the new sub-clause
explains that a person has links with such an organisation only
if he or she "supports or assists" it. We note that
"supports" will have to be interpreted as meaning "supports
in a material or active way", in order to avoid violating
the right to hold opinions conferred by Article 10(1) of the ECHR
and Article 19(1) of the International Covenant on Civil and Political
Rights. It would be desirable if the wording of the Bill made
this clear." (para 19, 5th report 2001-02)
JCHR also welcomed the insertion, in a new clause
(now clause 28), of provision for an annual review of the operation
of the detention provisions in the Bill. "In addition, in
what is now clause 29(7) of the Bill, there is a 'sunset clause'
under which the detention provisions in the Bill (clauses 21 to
23) will cease to have effect at the end of 10 November 2006,
in addition to the annual renewal requirement already in the Bill.
We intend ourselves to review the working of the Act in relation
to the protection of human rights before the first renewal order
and consider whether its further continuation appears appropriate
in relation to those concerns." (para 20, 5th
report 2001-02)
Mental Health Act 1983 (Remedial) Order 2001
of session 2001-02 (remedial order)
JCHR considered the draft remedial order in 6th
report 2001-02. JCHR wrote to Minister in Department of Health
to express concerns about the draft order. It was subsequently
withdrawn and the Minister instead made an order with immediate
effect using the 'urgent' procedure under the HRA, as the JCHR
had suggested.[232]
Enterprise Bill of session 2001-02
The bill made provision for courts to make interim
enforcement orders to stop allegedly unlawful activities of traders
carrying on business in breach of legal requirements. In certain
circumstances the orders could be made ex parte and without notice
to the trader. JCHR expressed concern that the safeguards in the
Bill did not expressly require the person applying for the an
order to make full disclosure to the judge of all relevant matters
and would be insufficient to ensure respect for Article 1 Protocol
1 rights (26th report, 2001-02). The Department agreed
to amend the Bill and the Act now expressly imposes an obligation
on the applicant to make full disclosure to the judge.
Licensing Bill of session 2002-03
The JCHR raised concerns about the effect of the
proposed licensing requirements on performers, particularly in
pubs and places of worship (4th report, 2002-03). They
highlighted the risk that clause 134 of the Bill, making it a
criminal offence for performers, among others, to carry out a
licensable activity (including many public performances) without
due authorisation, would be disproportionate to the legitimate
aims of the licensing scheme and hence would be incompatible with
the right to freedom of expression under ECHR Article 10. The
Government agreed, in correspondence with the JCHR, to propose
an amendment to clause 134 to exclude from criminal liability
a person whose only involvement in an entertainment is as a performer
or participant. The new provision now forms s136 of the Licensing
Act 2003.
Nottingham City Council Bill of session 2002-03
(Private bill)
This bill proposed a register of those dealing in
second-hand goods in Nottingham city. Clause 14 of the bill conferred
powers on police constables, and authorised officers of the council,
to enter premises, inspect and seize goods, in order to ascertain
whether an offence had been committed. The JCHR wrote to the promoters
of the bill pointing out that this provision might violate the
right to respect for private life and correspondence (Article
8 ECHR) because there was no protection for confidential material
equivalent to that offered by section 9 of the Police and Criminal
Evidence Act 1984. The promoters responded, and agreed to amend
clause 14(7) broadening the protection for any such material.
This now forms s14(7) of the Nottingham City Council Act 2003.
Courts Bill of session 2002-03
Clause 87 of the bill empowered the Lord Chancellor
to prescribe, by statutory instrument, the fees payable in respect
of any case dealt with by the Supreme Court, county courts and
magistrates' courts. The JCHR pointed out that the level of fees
affected people's access to courts, which is an element of the
right to a fair trial (Article 6.1 ECHR), and that consideration
should be given according to people's ability to pay. Clause 87
allowed for wide consultation as to the level of fees, but also
that the enabling order would simply be laid before Parliament,
and would not be subject to negative or affirmative resolution.
Following the JCHR report, and a report from the Select Committee
on Delegated Powers and Regulatory Reform, the Lord Chancellor
agreed to clause 87 being amended so that the relevant order was
subject to negative resolution, and therefore enhanced scrutiny
by Parliament.
[Recorded on table as not clear JCHR was source of
amendment]
Draft Civil Contingencies Bill of session 2002-03
(draft bill)
Clause 25 of the draft bill provided that a regulation
made under Part 2 of the Bill would "be treated as if it
were an Act of Parliament" for the purposes of the Human
Rights Act, thus depriving people of legal remedies for an extensive
range of potential violations of human rights. The regulations
would not have been scrutinised by Parliament in the same detail
as primary legislation, and would not have been able to be struck
down by the courts as secondary legislation can be. The Government
removed clause 25 of the draft bill from the bill subsequently
introduced in Session 2003-04 after criticism from the JCHR and
other committees (15th report, 2002-03 and 4th
report, 2003-04).
[Recorded on table as not clear JCHR was source of
amendment]
Criminal Justice Bill of session 2002-03
Under the bill, some defendants under the age of
17 would not have had the right to see the pre-sentence reports
prepared on them. Their representatives, and or parents/guardians
if present, would have access. The JCHR had concerns as to both
access to the pre-sentence report, and also the courts' responsibilities
to unrepresented children under the age of 17 and the risk the
provisions might violate the defendant's right to a fair hearing
(Article 6 ECHR), right to respect for private life (Article 8
ECHR) and the right to participate in decisions (Article 12 UNCRC).
The Government responded and initially agreed to amend the bill
so as to disclose the reports to defendants over the age of 14.
However, the JCHR remained of the view that problems might remain
in relation to unrepresented children, and suggested the bill
be amended to require the court to appoint legal representatives
for unrepresented child defendants (7th report, 2002-03).
In correspondence with the JCHR the Government agreed to introduce
a general principle that the pre-sentence report should be made
available to all offenders under the age of 18, and to their parents
or guardians, whether or not the defendant was legally represented,
unless the court believed that disclosure would put the defendant
at risk of serious harm (now ss159 and 160 of the Criminal Justice
Act 2003).
Crime (International Co-operation) Bill of
session 2002-03
The JCHR raised concerns about clause 83 of the bill,
which inserted a new section 76A to the Regulation of Investigatory
Powers Act 2000 (7th report, 2002-03). This would have
enabled a foreign police or customs officer to carry out directed
or intrusive surveillance in the UK for up to five hours without
authorisation, whilst investigating a wide range of crimes. Following
an exchange of correspondence, the Government agreed to amend
the bill so that a foreign officer would be required to contact
a designated person on arrival in the UK, and that the surveillance
would be limited to not entering private homes or places inaccessible
to the public (now s83 of the Criminal (International Co-operation)
Act 2003).
Medway Council Bill of session 2003-04
(Private bill)
After concerns were raised by the JCHR (4th
report 2003-04) the bill was amended to propose that an officer
who seizes goods should be required to notify the person from
whom the goods were seized of the right of a person claiming to
be owner of or otherwise interested in the goods to show cause
why the goods should not be forfeited etc., and to invite the
person from whom the goods are seized to give his name and address
to make tracing easier. There would be a certificate of seizure.
This would bring the arrangements more closely into line with
the provisions of the Police and Criminal Evidence Act 1984, Part
I, and the associated Codes of Practice, in relation to notification
to be given when constables seize items from people in the exercise
of the stop and search powers. The JCHR welcomed the proposed
amendment relating to seizure of goods, and considered that it
would provide an acceptable level of safeguard for the rights
of owners and other interested parties to appear before a court
to defend their rights (ECHR Article 6), as well as other Convention
rights (8th report 2003-04).
Children Bill of session 2003-04
The JCHR recommended that the commissioner should
use the principles of the CRC as a guide and measure in considering
delivery of services to children by government and public authorities
(9th report, 2002-03). The scheme of Part 1 of the
Bill originally gave the CRC the status of a permissible relevant
consideration: something to which, under clause 2(7), the Commissioner
might have regard in considering what constituted the interests
of children. The CRC was only to "form the backdrop of the
Commissioner's work if he considers it appropriate".
The Bill was amended in Committee by the Lords to provide that
the Commissioner must have regard to the Convention. Baroness
Ashton said that this change would mean that the CRC "sets
the framework" within which the Commissioner will work (12th
report 2003-04).
[Recorded on table as not clear JCHR was source of
amendment]
Housing Bill of session 2003-04
The JCHR raised three main areas of concern in relation
to the human rights compatibility of the Bill 8th report
2003-04):
First, they were concerned that there was no requirement
to give reasons for the choice of a particular type of enforcement
action by a local housing authority under the Bill, could give
rise to disproportionate interference with property rights under
Article 1 of Protocol 1, and with the right to respect for the
home under Article 8, and might also fail to satisfy the right
to a fair hearing under Article 6.1. The government introduced
amendments which required local housing authorities to give reasons
for their choice of a particular course of enforcement action
(now s8 of the Housing Act 2004).
Secondly, they were concerned that the lack of procedural
safeguards in the exercise of the investigatory powers under the
Bill, including powers to require the production of documents
and to enter premises, were subject to insufficient safeguards
to ensure compliance with the right to respect for private life
under Article 8. Amendments were introduced which required written
authorisation by a senior local authority officer for the exercise
of investigatory powers including powers of entry (s239 Housing
Act 2004).
Thirdly, they considered that additional safeguards
were needed to ensure that the requirement to introduce Home Information
Packs did not intrude unjustifiably on Article 8 rights. In response
to the JCHR report, the Government introduced an amendment to
address their concerns in relation to Home Information Packs.
In the JCHR's 20th report they raised an additional
point on the Bill. Following the decision of the European Court
of Human Rights in Connors v UK they wrote to the Government
suggesting they introduce amendments to the bill regarding security
of tenure on county council gypsy and traveller sites. The Minister
agreed, and the bill was amended at report stage in the Lords,
going some though not all the way towards remedying the incompatibility
identified in Connors.
Civil Partnership Bill of session 2003-04
The JCHR called on the Government to provide justification
for its statement in the Explanatory Notes to the bill that it
intended to use the power contained in the bill to amend pensions
legislation for surviving civil partners in such a way as to calculate
the value of survivor's pensions for civil partners on the basis
of future contributions only (15th report 2003-04).
This would have meant same-sex partners were treated less favourably
than surviving spouses of married heterosexual couples. After
initially maintaining the position which had been set out in the
Explanatory Notes, the Government announced that regulations would
be introduced under the bill to provide for same-sex couples to
accrue survivor pensions in public service schemes from 1988,
treating them in the same way as married couples.
Draft School Transport Bill of session 2003-04
(draft bill)
The bill made provision for local authorities to
develop school travel schemes within a framework approved by the
Secretary of State, or the National Assembly in Wales. The JCHR
were concerned that if an LEA did provide transport for access
to school, it had to do so in a non-discriminatory way (17th
and 20th reports 2003-04 and 4th report
2005-06). This had particular relevance where an LEA provided
transport for children to go to a denominational school, or to
a Welsh-speaking school in Wales, which was not necessarily the
nearest school, but did not provide similar schemes for children
travelling to non-denominational or English-speaking schools.
In its response, the Government agreed to expand the guidance
in its prospectus for LEAs on the application of any scheme so
as to encompass the points raised by the JCHR.
Mental Capacity Bill of sessions 2003-04 and
2004-05
JCHR raised concerns about safeguards to ensure advance
decisions to refuse treatment do not lead to wrong decisions about
existence, validity or applicability of advance decision to refuse
treatment (23rd report 2003-04, para 2.46). Gov responded
by bringing amendments requiring advance decisions concerning
life-sustaining treatment to be in writing and signed by the patient
(or someone else at his direction) in the presence of a witness
who also signs it in P's presence. The Act also states that an
advance decision should be verified by a statement by the patient
that it is to apply to that treatment even if life is at risk.
This was already in Bill but strengthened by amendments that the
statement should also be in writing, witnessed etc. (s25(5) and
(6))
JCHR raised concerns about withholding/withdrawing
ANH where there was no advance directive and that the presumption
in favour of life-sustaining treatment was not sufficiently strong
in the Bill (23rd report 2003-04, para 2.51). In response
the Gov introduced an amendment stating that in relation to life-sustaining
treatment, a person considering whether treatment is in the patient's
best interests must not be motivated by a desire to bring about
his death (s4(5)).
JCHR raised concerns that the Bill could lead to
deprivations of liberty which were not compatible with Art 5(1)
and could lead to the involuntary placement in hospital of a person
lacking capacity and deprive them of the procedural safeguards
which apply when they are compulsorily admitted under the Mental
Health Act (23rd report, para 2.19). The Gov responded
by bringing amendments to confirm that someone does more than
merely restrain P if they deprive them of their liberty under
Art 5(1).
Baroness Ashton stated on bringing amendments:
"[The amendments] respond directly to particular
concerns raised by the Joint Committee on Human Rights. The committee
wanted the Bill to confirm expressly that actions amounting to
the deprivation of liberty do not fall within the definition of
"restraint" used in the Bill. The amendments achieve
that." (HL Deb. Vol.670 Col.1469)
The Bill includes a section on research on people
lacking capacity. JCHR raised concerns that the Bill required
'reasonable grounds for believing' that the research would
not be as effective if carried out only on persons with capacity
which the JCHR saw as a significant dilution of the condition
in the Convention on Human Rights and Biomedicine which stipulates
as a condition of carrying out such research that 'research of
comparable effectiveness cannot be carried out on individuals
capable of giving consent' (23rd report, para 2.57).
The Gov responded by amending the relevant clause (31(3)) to bring
it closer to what the Convention says and "closer to the
view of Joint Committee" (Baroness Andrews, HL Deb. Vol.670
Col.1500-01). There must now be 'reasonable grounds for
believing that research of comparable effectiveness cannot
be carried out if the project has to be confined to, or relate
only to, persons who have capacity to consent to taking part in
it' (s31(4)).
As it retains the reasonable belief requirement this
amendment does not wholly meet the JCHR recommendation as they
say that stating the requirement in terms of reasonable belief
contemplates the possibility of research being authorised where
in fact there is an alternative (4th report 2004-05,
para 4.60).
[All our emphasis added.]
Asylum and Immigration (Treatment of Claimants)
Bill of session 2003-04
The bill altered some aspects of the Nationality,
Immigration and Asylum Act and proposed the removal of judicial
review, referred to as the 'ouster' clause. The clause would have
introduced a new section 108A into the Nationality, Immigration
and Asylum Act 2002 with the effect of cutting off all appeals
to, and judicial review by, the ordinary courts in immigration
matters, and excluding habeas corpus applications in immigration
cases. It would also have made section 7(1) of the Human Rights
Act subordinate to the Nationality, Immigration and Asylum Act
2002, and thereby severely curtailed remedies for violations of
Convention rights through the ordinary courts.
The Government admitted the ouster clause might have
been capable of "being interpreted as restricting access
to the courts to a greater extent than is intended", and
stated that the ouster clause was not intended to "affect
the remedy of habeas corpus nor any right the person has to damages
where he has been unlawfully detained. Nor is it intended to exclude
judicial review where a person has no right of appeal against
a particular immigration decision. The Government will give consideration
to amending this subsection to make its scope clearer". (Gov
response to JCHR, published in the 5th report of 2003-04)
The government gave in to the strong pressure to
abandon its ouster clause:
"… I have brought forward these amendments
to replace the judicial review ouster with a new system allowing
oversight by the Administrative Court and Court of Appeal."
(Lord Falconer, Hansard, 4 May 2004, Column 995)
This came after the reports of the JCHR and the Select
Committee for Constitutional Affairs.[233]
Amendments were brought in response to other JCHR
concerns about the bill. The Minister in charge of amendments
tabled on Report in the Commons indicated that "the Government
amendments respond to concerns raised by the Joint Committee on
Human Rights and other hon. Members". (see 19th
report 2004-05, para 63)
Equality Bill of sessions 2004-05 and 2005-06
The JCHR expressed concern that the breadth of the
exceptions for schools to the duty of non-discrimination on grounds
of religion or belief, could permit pupils to be subject to a
range of detriments which might not be objectively and reasonably
justified in the interests of protecting the rights to freedom
of religion of others, in breach of the Convention rights (4th
report 2005-06). The Government accepted their view in relation
to the exceptions for faith schools and agreed that permitting
faith schools to exclude a pupil or subject a pupil to any other
detriment on the grounds of religion or belief goes beyond what
is needed to protect the freedom of religion of faith schools.
At report stage of the Bill in the House of Commons, the Government
responded to JCHR concerns by tabling an amendment to clause 50
of the Bill. The amendment restricted the faith schools exception
in clause 50(1), so that the exception to the duty of non-discrimination
in clause 49 does not permit religious discrimination in exclusions,
or allow discrimination in subjecting pupils to "any other
detriment". In her response to the JCHR Report the Minister
commented that: "while we have no reason to suppose that
faith schools do or would discriminate in these respects against
children of other faiths or none, we are happy to make it clear
that the exception is intended to be limited only to those areas
which are essential in order to enable faith schools to continue
to operate as such" (5th report 2005-06). Similar
comments were made by Meg Munn MP at Report stage in the House
of Commons: HC Deb., 16 January 2006, col. 647.
The JCHR argued that a power to seek judicial review
under the HRA would be critical to the Commission's effectiveness,
and that the Bill's failure to provide for such a power was a
"significant flaw" (16th report 2004-05).
The Bill was amended in the House of Lords to provide that the
Commission may institute or intervene in judicial review proceedings
relating to breaches of Convention rights and does not itself
need to satisfy the victim test in s.7 HRA in order to do so,
provided that there is or would be one or more victims.
ID Cards Bill of session 2005-06
The JCHR pointed out that the retention of records
of checks against the Register under Schedule 1 Paragraph 9 of
the Bill is likely to build up a comprehensive picture of an individual's
employment, use of public services and private transactions, which
over time, would amount to a considerable intrusion on the individual's
private life. The Government tabled an amendment to clause 1(5)(g)
which would restrict the information retained on the Register
under that subsection concerning identification numbers and related
documents. The JCHR maintained the view that the Bill's provision
for the retention of extensive personal information relating to
all or large sections of the population may be insufficiently
targeted to be justified as proportionate to the statutory aims
and may lead to disproportionate interference with Article 8 rights.
(1st report 2005-06, para 4.11)
[Recorded on table as not clear JCHR was source of
amendment]
Health Bill of session 2005-06
The bill proposes a ban on smoking and the JCHR raised
concerns about the differential treatment under Art 14 for exemptions
for licensed premises not serving food and membership clubs (6th
and 11th reports 2005-06). After correspondence
with JCHR and debate in the House on this issue the government
introduced an amendment and allowed a free vote on a complete
ban on smoking in all enclosed public spaces, which was passed.
During debate in Parliament Patricia Hewitt mentioned the Select
Committee on Health, which she said made a very important contribution
to the debate.
[Recorded on table as not clear JCHR was source of
amendment]
Terrorism Bill of session 2005-06
The JCHR had concerns about the offence of Encouragement
of Terrorism (3rd report 2005-06). They considered
it necessary for this offence either to be restricted to intention
or - if it is to be extended beyond intention—that it should
be extended only to recklessness; and if it is so extended it
should contain a subjective test of recklessness (that is, knowing
or being aware of but indifferent to the likelihood that one's
statement would be understood as an encouragement to terrorism),
rather than the objective test currently contained within it.
The Government responded that it had listened to concerns expressed
in both Houses of Parliament and accepted that the recklessness
test should be subjective rather than objective and the Bill was
amended to provide for this.
Table 6: Number of Government Bills reported on
by the JCHR before the second reading in the second House
Parliamentary Session
|
Total number of Government bills considered by JCHR
|
Number of bills considered before second reading in second House
|
Number of bills not considered before second reading in second House
|
2001-02
|
37
|
26
|
11
|
2002-03
|
36
|
29
|
7
|
2003-04
|
35
|
27
|
8
|
2004-05
|
34
|
21
|
7[234]
|
2005-06[235]
|
36
|
25
|
11
|
| TABLE 7: Courts* referring to JCHR Reports
|
| CASE NAME
| COURT
| DATE
| JUDGE
| ISSUE
| WHAT KIND OF JCHR REFERENCE
| AGREE?
| HOW USED
|
| R (Limbuela et al) v Secretary of State for the Home Department
| HL | 03.11.05
| Hope | Nationality, Immigration and Asylum Act 2002 (23rd report 01-02)
| Opinion given on when leg will threaten to breach Art 3/8
| No | Quote JCHR opinion.
|
| R (R) v Durham Constabulary
| HL | 17.03.05
| Bingham (para 18)
| Sexual Offences Bill (12th report 02-03)
| Concerns about disproportionate registration burdens on children, eased by DC decision in this case on safeguards
| No | Report used by counsel as approving of DC decision, court overrule it.
|
| R (R) v Durham Constabulary
| HL | 17.03.05
| Hale (para 38)
| UNCRC (10th report 02-03)
| Quote stats on children detained to show gov crime prevention strategy not working
| | Used as evidence to show custodial sentences increasing
|
| R (R) v Durham Constabulary
| HL | 17.03.05
| Hale (para 41)
| Sexual Offences Bill (12th report 02-03)
| Concerns about disproportionate registration burdens on children, eased by DC decision in this case on safeguards
| Yes | Use report to argue her doubts about whether scheme breaches CRC but no breach of ECHR
|
| A v Secretary of State for the Home Department
| HL | 16.12.04
| Bingham (para 22-6)
| Review of Counter-Terrorism Powers (18th report 03-04)
| Opinion given that insufficient evidence was given to Parl to make it possible for them to accept derogation is strictly required by exigencies of situation.
| No | Quote fed into arguments on imminence, quotes from academics, UN HRC, ministers etc. But gov entitled to conclude there was public emergency
|
| Re McFarland
| HL | 29.04.04
| Steyn (para 27)
| Meaning of Public Authority (7th report 03-04)
| Concern about restrictive interpretation of 'public authority', considers solutions and concludes courts should adopt clear 'functional' approach
| | "Illuminating" discussion in report fed into argument whether judge, magistrate and jury are public authority. (Pre-HRA facts)
|
| R (Middleton) v West Somerset Coroner
| HL | 11.03.04
| Judgment of court (para 5)
| Deaths in Custody (1st report 03-04)
| Evidence given on number of deaths in custody
| | Report referred to show suicide not rare, important issue.
|
| CASE NAME
| COURT
| DATE
| JUDGE
| ISSUE
| WHAT KIND OF JCHR REFERENCE
| AGREE?
| HOW USED
|
| R (Sacker) v West Yorkshire Coroner
| HL | 11.03.04
| Judgment of court (para 4)
| Deaths in Custody (1st report 03-04)
| Evidence given on number of deaths in custody
| | Evidence in report quoted to show scale of problem
|
| DT v Secretary of State for the Home Department
| QBD | 20.01.04
| Hooper (para 88)
| UNCRC (10th report 02-03)
| Report quotes minister saying UK lead role in drafting CRC
| | Quote minister and cite report
|
| R (M) v Secretary of State for Health
| QBD | 16.04.03
| Kay (para 18)
| Making of Remedial Orders (7th report 01-02)
| Review of remedial order powers, first use etc.
| | Refer to report as interesting review of routes available to achieve compatibility, but is a matter for Parl and Gov, not the courts.
|
| R (Q et al) v Secretary of State for the Home Department
| QBD | 19.02.03
| Collins (para 8)
| Nationality, Immigration and Asylum Act 2002 (23rd report 01-02)
| Concerns about incompatibility with Art 3/8
| | Report mentioned when discussing background and justification for policy
|
| A v Secretary of State for the Home Department
| CA | 25.10.02
| Woolf (para 63)
| Anti-Terrorism, Crime and Security Bill (2nd and 5th reports 01-02)
| Concerns about power of detention etc
| No | Dismisses each of reports concerns and says reports valuable but don't affect these appeals
|
| R (S and Marper) v Chief Constable of South Yorkshire
| CA | 12.09.02
| Woolf (para 38)
| Criminal Justice and Police Bill (1st report 00-01)
| Opinion given that a breach of Art 8 would be justified.
| Yes | Counsel strongly contested correctness of JCHR assessment but court agrees.
|
| Gough v Chief Constable Derbyshire Constabulary
| CA | 20.03.02
| Phillips (para 57)
| Anti-Terrorism, Crime and Security Bill (2nd report 01-02)
| Evidence taken from Secretary of State for the Home Department that suspected terrorists would be free to leave country
| | Court uses this evidence to ask if it is proportionate to ban football hooligan from leaving country
|
| KEY
| | | |
| | | |
| "Agree?"
| If JCHR have expressed an opinion or concerns about possible breach, whether court agrees with their opinion/analysis. Left blank where court is quoting evidence or facts from JCHR report and not their opinion, or quoting their opinion as background information.
|
| *Cases in higher courts, up to 16.03.06
Source: House of Commons Library
| | | |
| |
Table 8: New Zealand Legislation Advisory Committee 'Guidelines
on Process & Content of Legislation'
Appendix 1 to the Klug Report: People interviewed for this
report
JCHR members
Lord Plant (23.06.06)
Douglas Carswell (18.05.06)
Richard Shepherd (24.04.06)
Evan Harris (19.04.06)
Dan Norris (19.04.06)
Lord Bowness (30.03.06)
Lord Lester (30.03.06)
Lord Judd (30.03.06)
Lord Campbell (28.03.06)
Baroness Stern (28.03.06)
Mary Creagh (13.03.06)
Andrew Dismore (09.03.06)
Former JCHR members
Baroness Whitaker (23.03.06)
Baroness Prashar (04.05.06)
Vera Baird (31.05.06)
Jean Corston (28.02.06)
JCHR staff and former staff
Murray Hunt (27.03.06)
Roisin Pillay (23.03.06)
Nick Walker (21.02.06)
Ed Lock
Paul Evans, (former JCHR clerk) Clerk of Delegated Legislation,
House of Commons (09.03.06)
Frances Butler, former specialist adviser (06.03.06)
Ministers/Civil Servants
Mike O'Brien, Solicitor General (16.05.06)
Baroness Ashton, Human Rights Minister (22.03.06)
Two senior DCA officials (05.04.06)
Others (*comment provided only)
Shami Chakrabarti, Director of Liberty*
Roger Smith,
Director of Justice*
Katie Ghose,
Director of BIHR*
Anneliese
Baldaccini, Committee Specialist, House of Lords EU Committee
(04.05.06)
Rhodri Walters, Clerk of Committees in the House of Lords (24.04.06)
Clare Ettinghausen, Hansard Society (14.03.06)
Janet Hiebert (23.02.06)
Other committees visited
House of Lords EU Committee (16.05.06)
Public Administration Committee (16.03.06)
Note
Views are only attributed to named individuals
where they have specifically requested this or given their permission
to do so.
Appendix 2 to the Klug Report: JCHR's Standing
Order (House of Commons) and Orders of Reference (House of Lords)
STANDING
ORDER NO.
152B OF THE
HOUSE OF
COMMONS
152B.—(1) There
shall be a select committee, to consist of six Members, to join
with the committee appointed by the Lords as the Joint Committee
on Human Rights.
(2) The committee shall consider—
(a) matters relating to human rights in the United
Kingdom (but excluding consideration of individual cases);
(b) proposals for remedial orders, draft remedial
orders and remedial orders made under Section 10 of and laid under
Schedule 2 to the Human Rights Act 1998; and
(c) in respect of draft remedial orders and remedial
orders, whether the special attention of the House should be drawn
to them on any of the grounds specified in Standing Order No.
151 (Statutory Instruments (Joint Committee)).
(3) The committee shall report to the House—
(a) in relation to any document containing proposals
laid before the House under paragraph 3 of the said Schedule 2,
its recommendation whether a draft order in the same terms as
the proposals should be laid before the House; or
(b) in relation to any draft order laid under paragraph
2 of the said Schedule 2, its recommendation whether the draft
order should be approved;
and the committee may report to the House on any
matter arising from its consideration of the said proposals or
draft orders.
(4) The committee shall report to the House in respect
of any original order laid under paragraph 4 of the said Schedule
2, its recommendation whether—
(a) the order should be approved in the form in which
it was originally laid before Parliament; or
(b) that the order should be replaced by a new order
modifying the provisions of the original order; or
(c) that the order should not be approved,
and the committee may report to the House on any
matter arising from its consideration of the said order or any
replacement order.
(5) The quorum of the committee shall be two.
(6) Unless the House otherwise orders, each Member
nominated to the committee shall continue to be a member of it
for the remainder of the Parliament.
(7) The committee shall have power—
(a) to send for persons, papers and records, to sit
notwithstanding any adjournment of the House, to adjourn from
place to place, and to report from time to time; and
(b) to appoint specialist advisers either to supply
information which is not readily available or to elucidate matters
of complexity within the committee's order of reference.
HOUSE
OF LORDS
MINUTES OF
PROCEEDINGS, 19
JULY 2005
It was moved by the Chairman of Committees that a
Select Committee of six Lords be appointed to join with the committee
appointed by the Commons as the Joint Committee on Human Rights:
To consider:
(a) matters relating to human rights in the United
Kingdom (but excluding consideration of individual cases);
(b) proposals for remedial orders, draft remedial
orders and remedial orders made under Section 10 of and laid under
Schedule 2 to the Human Rights Act 1998; and
(c) in respect of draft remedial orders and remedial
orders, whether the special attention of the House should be drawn
to them on any of the grounds specified in Standing Order 74 (Joint
Committee on Statutory Instruments);
To report to the House:
(a) in relation to any document containing proposals
laid before the House under paragraph 3 of the said Schedule 2,
its recommendation whether a draft order in the same terms as
the proposals should be laid before the House; or
(b) in relation to any draft order laid under paragraph
2 of the said Schedule 2, its recommendation whether the draft
order should be approved;
and to have power to report to the House on any matter
arising from its consideration of the said proposals or draft
orders; and
To report to the House in respect of any original
order laid under paragraph 4 of the said Schedule 2, its recommendation
whether:
(a) the order should be approved in the form in which
it was originally laid before Parliament; or
(b) that the order should be replaced by a new order
modifying the provisions of the original order; or
(c) that the order should not be approved,
and to have power to report to the House on any matter
arising from its consideration of the said order or any replacement
order;
That, as proposed by the Committee of Selection,
the Lords following be named of the committee:
L. Bowness L. Campbell of Alloway L. Judd L. Lester
of Herne Hill L. Plant of Highfield B. Stern;
That the committee have power to agree with the committee
appointed by the Commons in the appointment of a chairman;
That the quorum of the committee shall be two;
That the committee have power to adjourn from place
to place;
That the committee have leave to report from time
to time;
That the committee have power to appoint specialist
advisers;
That the minutes of evidence taken before the Human
Rights Committee in the last Parliament be referred to the committee;
That the minutes of evidence taken before the committee
from time to time shall, if the committee thinks fit, be printed;
and
That the committee do meet with the committee appointed
by the Commons at four o'clock this day in Committee Room 5.—(The
Chairman of Committees.)
On Question, Motion agreed to; and a message was
ordered to be sent to the Commons to acquaint them therewith.
Appendix 3 to the Klug Report: Core Tasks for
Select Committees
OBJECTIVE A: TO EXAMINE AND COMMENT ON THE POLICY OF THE DEPARTMENT
Task 1
To examine policy proposals from the UK Government and the European Commission in Green Papers, White Papers, draft Guidance etc, and to inquire further where the Committee considers it appropriate.
Task 2
To identify and examine areas of emerging policy, or where existing policy is deficient, and make proposals.
Task 3
To conduct scrutiny of any published draft bill within the Committee's responsibilities.
Task 4
To examine specific output from the department expressed in documents or other decisions.
OBJECTIVE B: TO EXAMINE THE EXPENDITURE OF THE DEPARTMENT
Task 5
To examine the expenditure plans and out-turn of the department, its agencies and principal NDPBs.
OBJECTIVE C: TO EXAMINE THE ADMINISTRATION OF THE DEPARTMENT
Task 6
To examine the department's Public Service Agreements, the associated targets and the statistical measurements employed, and report if appropriate.
Task 7
To monitor the work of the department's Executive Agencies, NDPBs, regulators and other associated public bodies.
Task 8
To scrutinise major appointments made by the department.
Task 9
To examine the implementation of legislation and major policy initiatives.
OBJECTIVE D: TO ASSIST THE HOUSE IN DEBATE AND DECISION
Task 10
To produce reports which are suitable for debate in the House, including Westminster Hall, or debating committees.
|
| Appendix 4: Non-departmental select committees formally charged with scrutinising legislation
|
| COMMITTEE
| HOUSE
| TERMS OF REFERENCE
| LEG SCRUTINISED
| METHOD
| CRITERIA
| VOICE
|
| European Scrutiny Committee
| Commons |
To examine European Union documents and to report its opinion on the legal and political importance of each such document and, where it considers appropriate, to report also on the reasons for its opinion and on any matters of principle, policy or law which may be affected; to make recommendations for the further consideration of any such document pursuant to Standing Order No. 119 (European Standing Committees); and to consider any issue arising upon any such document or group of documents, or related matters. [Standing Order No. 143]
| Rapidly sifts all proposals under consideration in the Council of Ministers (~1000 per year, reports on ~500 per year)
| Gov dept with responsibility for a doc produces an Explanatory Memorandum on it which triggers the scrutiny process. Committee then decides whether it is a politically or legally important doc. If so, will report on it in weekly Report, setting out its progress, any criticisms and whether more info requested from gov. Committee can choose to have doc debated in one of the European Standing Committees or on floor of House. Ministers are constrained by Resolution of the House from agreeing to leg proposals in Council or European Council which the Committee hasn't cleared (with some exceptions).
| Will be considered a politically important doc if has sensitive subject matter, financial implications, likely impact on UK. Will be considered legally important if has doubtful legal base, unsupported assertion by Commission of powers to act, difficulties of drafting, impact on existing law.
| Committee does not make decision of merits of doc but in assessing its importance and whether it should be debated they might identify potential problems/benefits and question Ministers about them.
|
| COMMITTEE
| HOUSE
| TERMS OF REFERENCE
| LEG SCRUTINISED
| METHOD
| CRITERIA
| VOICE
|
| European Union Select Committee
| Lords |
To consider European Union documents and other matters relating to the European Union.
| Sifts docs but reports on much smaller number than Commons Committee and in considerably greater detail in longer inquiries (~40-50 per year)
| Gov dept with responsibility for a doc produces an Explanatory Memorandum which triggers the scrutiny process. The Chairman conducts a 'sift' of these docs and decides which should be referred to the sub-committees for further examination. About a quarter (~250) are referred. Each sub-committee then examines docs and chooses a few each year to conduct substantial inquiry on and make report. Other docs are subject of short inquiry. The committee publishes a report setting out its conclusions and recommendations. By Resolution of House of Lords the gov should not agree an EU law until the Committee has had chance to consider it (with some exceptions).
| Sub-committees look at the policy implications of proposals; whether they are properly matters which the EU (rather than the UK) should be legislating for, whether they have been subject to a proper cost analysis and whether they inappropriately delegate power to EU official committees.
| Sub-Committees also prepare letters for the Chairman of the Committee to send to Ministers to set out its views. This correspondence is designed to influence the detailed formulation of policy.
|
| COMMITTEE
| HOUSE
| TERMS OF REFERENCE
| LEG SCRUTINISED
| METHOD
| CRITERIA
| VOICE
|
| Joint Committee on Statutory Instruments
| Joint |
Responsible for scrutinising all statutory instruments made in exercise of powers granted by Act of Parliament. Instruments not laid before Parliament are included within the Committee's remit; but local instruments and instruments made by devolved administrations do not fall to be scrutinised by JCSI unless they are required to be laid before Parliament.
| All statutory instruments made in exercise of powers granted by Act of Parliament.
| Scrutinises all statutory instruments made in exercise of powers granted by Act of Parliament with a view to determining whether the special attention of the House should be drawn to it on any of the grounds in the next column, set out in House of Commons Standing Order No. 151 and House of Lords Standing Order No. 74.
| (i) it imposes a charge on public revenues or requires payments to the Exchequer or any gov dept or any local/public authority in consideration of any licence/consent/services to be rendered, or prescribes amount of such charge/payment; (ii) it includes provisions excluding it from challenge in the courts, either at all times or after the expiration of a specific period; (iii) it has retrospective effect where the parent statute confers no express authority so to provide; (iv) unjustifiable delay in the publication or laying of it before Parl; (v) unjustifiable delay in sending a notification under the proviso to s4(1) Statutory Instruments Act, where an instrument has come into operation before it has been laid before Parl; (vi) a doubt whether it is intra vires or it appears to make some unusual or unexpected use of powers conferred by statute under which it is made; (vii) for any special reason its form/purport calls for elucidation; (viii) drafting appears to be defective; or any other ground which does not impinge on its merits or the policy behind it.
| House of Commons Standing Order No. 151 and House of Lords Standing Order No. 74 require the committee to report its decision and its reasons.
|
| COMMITTEE
| HOUSE
| TERMS OF REFERENCE
| LEG SCRUTINISED
| METHOD
| CRITERIA
| VOICE
|
| Merits of Statutory Instruments
| Lords |
Consider (a) every instrument (whether or not a statutory instrument), or draft of instrument, laid before each House and upon which proceedings may be, or might have been, taken in either House under an Act of Parliament; (b) every proposal in the form of a draft of such an instrument laid before each House under an Act of Parliament, with a view to determining whether or not the special attention of the House should be drawn to it. The exceptions are (a) Orders in Council (and draft), under para 1 Schedule to the Northern Ireland Act 2000; (b) remedial orders (and draft), under s10 Human Rights Act 1998; (c) draft orders (and draft subordinate provisions orders) under s1 Regulatory Reform Act 2001, subordinate provisions orders and proposals in the form of a draft order under that Act; (d) Measures under the Church of England Assembly (Powers) Act 1919 and instruments made (and drafts), under them. Also consider other general matters relating to the effective scrutiny of the merits of statutory instruments, except matters within the orders of reference of the Joint Committee on Statutory Instruments.
| Consider every instrument and drafts laid before each House. The Committee has had to consider, at times, over 80 instruments a week
| Explanatory Memoranda usually provide sufficient information to enable the Committee to reach a conclusion. In some cases further information is needed and requested by the Committee. It is provided either by correspondence or over the telephone to the secretariat. Where the committee believes the further information would assist the House they publish it in an appendix to their report under the heading "correspondence" or "explanatory information". In researching the policy background of instruments, the Committee's secretariat has developed a range of contacts in the public and private sector, and the committee has, on occasion, received submissions from outside organisations.
| The grounds on which an instrument, draft or proposal may be drawn to the special attention of the House are (a) that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House; (b) that it may be inappropriate in view of changed circumstances since the enactment of the parent Act; (c) that it may inappropriately implement European Union legislation; (d) that it may imperfectly achieve its policy objectives.
| Role is to identify instruments of interest and offer preliminary view on aspect which causes concern. It is for House to decide whether instrument is at fault or of such significance that it should be debated. Committee reported that its TERMS OF REFERENCE do not quite reflect its function as a "sifting" committee but suggest that it should make conclusive findings.
They recommend the TERMS OF REFERENCE should be amended accordingly.
|
| COMMITTEE
| HOUSE
| TERMS OF REFERENCE
| LEG SCRUTINISED
| METHOD
| CRITERIA
| VOICE
|
| Delegated Powers and Regulatory Reform Select Committee
| Lords |
Appointed by the Lords in each session to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate level of parl scrutiny, to report on documents and draft orders laid before Parl under the Regulatory Reform Act 2001 and to perform, in respect of such documents and orders and subordinate provisions orders laid under that Act, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments
| 1) Bills to see if the provisions inappropriately delegate legislative power or if they subject the exercise of legislative power to an inappropriate level of parl scrutiny. 2) Regulatory reform order introduced under the Regulatory Reform Act 2001.
| Committee takes evidence in writing on each Public Bill from gov dept. The written evidence identifies the provisions for delegated legislation, describes their purpose, explains why the matter has been left to delegated legislation and explains the degree of parliamentary control provided for the exercise of each power (affirmative, negative or none at all) and why it is thought appropriate. The committee may also hear oral evidence. The committee issues separate reports on bills and regulatory reform orders.
| In examining a bill the Committee considers i) whether the power to make secondary leg is appropriate, expressing a view on whether the subject matter is so important it should only be regulated by primary leg; ii) always pays special attention to 'Henry VIII' powers; iii) considers what form of parl control is appropriate and whether proposed power calls for affirmative rather than negative resolution procedure. In considering a proposed regulatory reform order the Committee asks i) whether its subject matter is appropriate for the regulatory reform procedure; ii) is it intra vires; iii) if it removes a burden; vi) whether 'necessary protections' are maintained; v) if it would prevent anyone from exercising an existing right or freedom which they might reasonably expect to continue to exercise; vi) whether consultation has been adequate.
| Committee's role is to advise the House of Lords. It is for the Lords to decide whether or not to act on the Committee's recommendations
|
| COMMITTEE
| HOUSE
| TERMS OF REFERENCE
| LEG SCRUTINISED
| METHOD
| CRITERIA
| VOICE
|
| Constitution Committee
| Lords |
To examine the constitutional implications of all public bills coming before the House and to keep under review the operation of the constitution. The Committee has defined 'the constitution' as "the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual".
| Assisted by a Legal Adviser, the Committee considers the constitutional implications of all public bills introduced to the HL.
| The Committee asks whether the bill raises issues of principle affecting a principal part of the constitution. If a bill appears to do so, the Committee may request info/clarification from the Minister or may seek advice more widely. May invite Minister to give evidence or exchange letters. If info/advice is obtained that would assist the House in considering the bill, the Committee reports the evidence to the House as well as publishing any conclusions that it has reached or drawing the attention of the House to specific provisions of the bill.
| Considers whether bill makes a significant change in the system of gov or in the relations between the state and the individual, or is consistent with similar legislation in other areas of gov. If new decision-making powers are conferred on a public authority, Committee considers whether procedure provided for appeals, review and redress of grievances is satisfactory, and whether the bill makes clear division between matters for which ministers are responsible and for which authority is devolved to autonomous office-holders. Attention is most likely to be engaged by significant leg proposals that affect the relationship between the executive and judicial system, system of civil and criminal justice, integrity of the leg process, democratic process, distribution of powers between central executive, devolved institutions and local gov, public accountability and fundamental principles relating to good gov, liberty and rule of law.
| The Committee does not form a view on the merits of a bill. It reports evidence to the House as well as any conclusions it has reached or draws the attention of the House to specific provisions of the bill.
|
| COMMITTEE
| HOUSE
| TERMS OF REFERENCE
| LEG SCRUTINISED
| METHOD
| CRITERIA
| VOICE
|
| Regulatory Reform Committee
| Commons |
The Committee's role is to undertake on behalf of the House of Commons the scrutiny of regulatory reform proposals and draft orders
| Scrutiny of regulatory reform proposals and draft orders
| Receives copies of all consultation documents issued by the Government. Formal duties begin when Gov lays before Parl a proposal for an order. Committee considers proposal and explanatory statement and has access to all non-confidential responses to Gov consultation. Committee may seek further written or oral evidence either from the Gov Dept or other interested parties. Once satisfied it has all information it requires, it makes a substantive report to the House assessing the proposal against all the relevant criteria. Committee also reports formally to the House either that a draft order in the same terms as the proposal should be laid before the House, that the proposal should be amended before a draft order is laid before the House, or that the order-making power should not be used in respect of the proposal.
Committee considers extent to which the Minister has had regard to its report and to any other representations made. It considers whether any further evidence, written or oral, is required before it is able to come to a decision. It is required to report formally to the House within fifteen sitting days its recommendation whether the draft order should be approved. It also makes a further substantive report to the House on the draft order.
| Consider in each case whether the proposal: (a) appears to make an inappropriate use of delegated legislation (b) removes or reduces a burden or the authorisation or requirement of a burden (c) continues any necessary protection (d) has been the subject of, and takes appropriate account of, adequate consultation (e) imposes a charge on the public revenues or contain provisions requiring payments to be made to the Exchequer or any government department or to any local or public authority in consideration of any licence or consent or of any services to be rendered, or prescribes the amount of any such charge or payment (f) purports to have retrospective effect (g) gives rise to doubts whether it is intra vires (h) requires elucidation, is not written in plain English or appears to be defectively drafted (i) appears to be incompatible with any obligation resulting from membership of the European Union (j) prevents any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise (k) satisfies the conditions of proportionality between burdens and benefits set out in sections 1 ["proportionality"] and 3 ["fair balance"] of the Act (l) satisfies the test of desirability set out in section 3(2)(b) of the Act (m) has been the subject of, and takes appropriate account of, estimates of increases or reductions in costs or other benefits which may result from their implementation, and (n) includes provisions to be designated in the draft order as subordinate provisions; and if so, to what Parliamentary procedure any subordinate provisions order should be subject.
| If Committee recommends unanimously that the draft order should be approved, the question is put forthwith, without debate. If Committee's recommendation that the draft order should be approved is made only after a division in Committee, there may be up to an hour and a half's debate on the motion to approve the draft order.
If Committee recommends that the draft order should not be approved, there may be up to three hours' debate on a motion to disagree with the Committee's report, following which, if that motion is agreed to, the motion to approve the draft order is put forthwith, with no further debate.
|
34 Committee formal minute, meeting of 1 February 2006 Back
35
Or more precisely " to give further effect to rights and
freedoms guaranteed under the ECHR." HRA 1998, Preamble. Back
36
Used in speeches and conversations. Back
37
For example, Canada, Germany, USA, South Africa. Back
38
"Parliamentary sovereignty means that Parliament is competent
to make any law on any matter of its choosing and no court may
question the validity of any Act that it passes. In enacting legislation,
Parliament is making decisions about important matters of public
policy. The authority to make those decisions derives from a democratic
mandate. Members of Parliament in the House of Commons possess
such a mandate because they are elected, accountable and representative."
Rights Brought Home, the Human Rights Bill, Cmnd 3782,
October 1997. Back
39
306 HC 771 (February 15 1998). My emphases Back
40
314 HC 1141 (June 24 1998) Back
41
Speech, IPPR, 13 January 2000 Back
42
382 HC (16 Feb 1998) Back
43
"Convention rights," is defined by HRA s1(1) as ECHR
Articles 2-12 and 14 plus Protocol 1, Articles 1-3 and Protocol
6 Articles 1 and 2. Back
44
Either in terms or because it is not 'possible' to interpret the
relevant primary legislation compatibly with Convention rights
and the subordinate legislation reflects this. Back
45
Para 3.6. Back
46
314 HC ( June 24 1988) 1141. Back
47
My emphasis. Hansard, 18 Dec 2002, Volume 642, Column 694. Back
48
HRA s10. All such references to 'Parliament' are made in the context
of the 'British constitution' where most legislation is initiated
by Government, of course. Back
49
See Francesca Klug and Keir Starmer, Standing Back from the
HRA: how effective is it five years on? [2005] P.L. 722; Richard
Clayton, Judicial Deference and Democratic Dialogue, the legitimacy
of judicial intervention under the HRA 1998 [2004] P.L. 33;Danny
Nicol, The Human Rights Act and the Politicians (2004)
24(3) Legal Studies 452; Francesca Klug, The Human Rights Act:
a 'third way' or 'third wave' Bill of Rights? [2001] E.H.R.L.R.
361. Also Janet Hiebert, Parliament and the Human Rights Act:
Can the JCHR facilitate a culture of rights?" (2006)
4(1) International Journal of Constitutional Law 1. Back
50
The HRA has started to be emulated. The Australian Capital Territory
(ACT) passed a Human Rights Act in March 2004 modelled largely
on the British HRA and the state of Victoria has just introduced
a "'Charter of Human Rights and Responsibilities" which
is also based on the British model. Back
51
Even the Prime Minister suggested the courts have the power to
strike down legislation in his email correspondence with the Observer
journalist Henry Porter. See 'Britain's liberties: The great debate',
The Observer, 23 April, 2006. Back
52
Hansard, HC 16 December 2004 col 151. Back
53
See Richard Clayton and Hugh Tomlinson, The law of human rights,
Oxford University Press, 2000, at 4.45. Back
54
Hatton v UK, (2003) 37 EHRR, 611. Back
55
Handyside v UK (1976) 1 EHRR, 737. Back
56
Howard Yourow, The Margin of Appreciation Doctrine in the Dynamics
of European Human Rights Jurisprudence, Kluwer, 1996. Back
57
R (Kebilene) v DPP [1999] 3 WLR 972. Back
58
The Case for a Human Rights Commission, Alternative Draft
Report, 3 March 2003. Back
59
See, for example, Report on Criminal Justice Bill, 2002-3,HL
40, HC 374; Counter terrorism policy and human rights: draft
prevention of Terrorism Act 2005(continuance in force of s1-9)
Order 2006, para 168. Back
60
Soering v UK(1989) 112 EHRR 439; ECHR preamble Back
61
Kjeldsen Busk Madson and Peterson v Belgium (1979-80) 1
EHRR 711, at para 53; ECHR preamble Back
62
Golder v UK (1975) 1 EHRR 524, para 34; ECHR preamble. Back
63
Human Rights in the Private Sphere, Clarendon, 1993. Back
64
Lord Browne-Wilkinson, "The impact on judicial reasoning",
in The Impact of the Human Rights Bill on English Law, Clarendon,
1998, pp21-23. Back
65
Wilson v First Country Trust Ltd (no 2) [2003] UKHL 40,
para 181. Back
66
See note 51. Back
67
Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35 para 69. Back
68
Lord Bingham, Leeds City Council v Price and others, [2006]
UKHL 10. Back
69
Artico v Italy (1980) 2 EHRR 1 (my emphasis). Back
70
E.g in Tryer v UK (1981) 2 EHRR 1 and Marckx
v Belgium (1979-80) 2 EHRR 330. Back
71
Re Parsons, [2003] NICA 20; R (Price) v Carmarthenshire
CC [2003] EWHC (Admin) 42 . Back
72
R (L and others) v Manchester City Council [2001] EWHC
(Admin) 707; R (Price) v Carmarthenshire CC, ibid. Back
73
Platform Arzte fur das Leben v Austria, (1988) 13 EHRR
204, para 32 Back
74
E.g. Handyside v UK (1976) 1 EHRR 737; Chassagnou and
others v France (1999) 29 EHRR 615. Back
75
Chassagnou and others v France (1999) 29 EHRR 615. Back
76
Prof Robert Blackburn, A Human Rights Committee for the UK
Parliament [1998] E.H.R.L.R. 534, pp357-8. Back
77
Lord Williams 582 HL (November 3 1977) 1308. Back
78
See for e.g. Wemhoff v Germany (1968) 1 EHRR 55; Golder
v UK, note 29 above; Kjeldsen Busk Madson and Peterson
v Belgium note 28; Kebeline, note 24. Back
79
See for e.g. Reyes v The Queen [2002] AC 235; "A generous
and purposive interpretation is to be given to constitutional
provisions protecting human rights." Lord Bingham, para 26. Back
80
Defined as "the principles of law which are generally known
and free from doubt or dispute," Legal Dictionary. Back
81
See for e.g. Tom Campbell et al (eds), Sceptical Essays on
Human Rights, OUP, 2001. Back
82
Sixth Report, Session 2002-03, para 12. Back
83
Lord Hoffman R (Prolife Allliance) v BBC [2003] HL 23,
paras 75-6. Back
84
There are different types of restrictions on Convention rights;
a) broad limitations expressly permitted under Articles 8(2),
9(2), 10(2) and 11(2); b) specific qualifications expressly permitted
by Articles 2(2), 4(2), 5,12, Protocol 1, Article 1 and Protocol
6 Article 2; c) implied restrictions on the scope of the rights
in Article 6 and Protocol 1 Articles 2 and 3. Back
85
Other factors are the role of the European Court as a 'supervisory'
body of a system that operates primarily at the national level;
the search for common European standards and the skills and knowledge
of the relevant judges. Back
86
Brown v Procurator Fiscal and Advocate General for Scotland
[2001] 1 AC 681, Privy Council. Back
87
R v Lichniak, [2002] UKHL 47. Back
88
Brown. Note 53 above. Back
89
Popular Housing and Regeneration Community Association Ltd
v Donoghue [2001] EWCA Civ 595. Back
90
R v Lichniak. Note 54 above. Back
91
Bringing Rights Home, Labour's Plan to Incorporate the ECHR
into UK Law, Jack Straw MP and Paul Boateng MP, Labour Party,
December 1996, p12. Back
92
Ibid. Back
93
Ibid p12. Back
94
Rights Brought Home, note 5 above, para 3.6. Back
95
Ibid. Back
96
Hansard, 14 December 1998, Col 604. Back
97
See Francesca Klug, The Human Rights Act 1998, Pepper v. Hart
and all that, [1999] P.L. 246. Back
98
Hansard, 21 October 1998, Col 1366. Back
99
Hansard, 3 November 1997, Col 1234; 29 January 1998, Col 406. Back
100
Hansard, 5 February 1998, Col 826. Back
101
Hansard, 16 Feb 1998, Column 855 Back
102
For example, Michael Ryle, Pre-legislative Scrutiny; A prophylactic
approach to human rights [1994] P.L. 192; Francesca
Klug, A People's Charter, Liberty's Bill of Rights, Civil
Liberties Trust, 1991; David Kinley, The ECHR: Compliance
without Incorporation, Dartmouth, 1993; Professor Robert Blackburn,
Human Rights Incorporation Project, King's College London, note
43 above; Ian Bynoe and Sarah Spencer, Mainstreaming Human
Rights in Whitehall and Westminster, IPPR, 1999; Aisling Reidy,
A Human Rights Committee for Westminster, Constitution
Unit, 1999 and Auditing for Rights, Developing Scrutiny
Systems for Human Rights Compliance, Justice 2001.As Director
of the Civil Liberties Trust, and subsequently as a Senior Research
Fellow at the Human Rights Incorporation Project (HRIP) King's
College Law School, I was personally involved in many of the discussions
which preceded these reports and commented on or contributed to
a number of the papers, including The HRA 1998 and Parliamentary
Scrutiny, published by HRIP, IPPR, Constitution Unit
et al. Back
103
Human Rights Legislation, Constitution Unit, 1996, pp69-74.
My emphases. Back
104
The All-Party Parliamentary Human Rights Group covered only foreign
affairs. Back
105
Note 43 above, p538. Back
106
Aisling Reidy, A Human Rights Committee for Westminster,
note 69 above, p14. Back
107
See note 69 above and in particular A People's Charter, Liberty's
Bill of Rights,1991. Back
108
"The sovereignty of parliament establishes, in practice,
the political supremacy of the government of the day." The
Three Pillars of Liberty; political rights and freedoms in the
UK, Francesca Klug, Keir Starmer and Stuart Weir, Routledge
1996, p47. Back
109
Shifting the Balance: Select Committees and the Executive,
House of Commons Liaison Committee 1st report,
1999-2000, paras 1-4. See also Delivering a Stronger Parliament,
Conservative Party, February 2002. Back
110
An Introduction to Administrative Law, Peter Cane, Clarendon,
1992, p302-3 Back
111
Garner's Administrative Law, B.L. Jones and K. Thompson,
Butterworths, 1996, p125-6. Back
112
P Craig, Administrative Law, Sweet and Maxwell, 1999, p78. Back
113
Select Committees, House of Commons Modernisation Committee,
First Report, Session 2001-02, para 57. Back
114
Shifting the Balance, note 76, paras 1-4. Back
115
JCHR Standing Order no 152B, (2)(a). Back
116
See Issues in Law Making, Pre-Legislative Scrutiny Hansard
Society, Paper 5, July 2004; Post-Legislative Scrutiny, Paper
6, May 2005. Back
117
E.g the House of Commons Public Administration Select Committee
decided to scrutinise the Legislation and Regulatory Reform Bill
in the current session to evaluate the change in balance between
government and parliament. Public Administration Committee, 'Legislative
and Regulatory Reform Bill', Third Report 2005-06. Back
118
The JCHR is required to scrutinise Remedial Orders but no other
legislation. Back
119
In fulfilling its scrutiny role, the Lords EU Scrutiny Committees
often carries out substantial, in-depth enquiries, receiving witnesses
and taking evidence. The Lords Constitution Committee also carries
out enquiries into broad constitutional issues under its remit
"to keep under review the operation of the constitution." Back
120
Others include the Joint Committee on Statutory Instruments, the
Intelligence and Security Committee (technically a statutory committee,
not a select committee), the Joint Committee on Tax Law Rewrite
Bills, the Joint Committee on Consolidation Bills and the Joint
Committee on Conventions. Back
121
E.g. the Joint Committee on Lords Reform established in 2002. Back
122
Note 69 above. Back
123
Issues in Law Making, Joint Committees, Hansard
Society Paper 9, June 2006. Back
124
Which met between 31 January and 30 April 2001. Back
125
Criminal Justice and Police Bill,
First Report, Session 2000-01. Back
126
The Work of the Committee in the 2001-2005 Parliament,
Nineteenth Report, Session 2004-05, HL 112, HC 552.
For an extremely useful summary see "Parliamentary scrutiny
of human rights", in Human Rights Law and Practice, Lord
Lester and David Pannick (eds), LexisNexis, 2004 and "The
Human Rights Act and Westminster's Legislative Process",
in Parliament, Politics and Law Making, Alex Brazier (ed),
Hansard Society, 2004. Back
127
Minutes of Proceedings, 5 Feb 2001. Back
128
Nineteenth Report, note 93 above, para 27. Back
129
Scrutiny of Bills: Private Members Bills and Private Bills,
Fourteenth Report, Session 2001-02, para 1. Back
130
Nineteenth Report, note 93 above, para 46 Back
131
Ibid, para 41. Back
132
Ibid, para 44. Back
133
Fourteenth Report, note 96 above, para 4. Back
134
Nineteenth Report, note 93 above, para 92. Back
135
Mental Health Act 1983 (Remedial) Order 2001, Sixth Report,
Session 2001-02. Back
136
The other was the Naval Discipline Act 1957 (Remedial) Order 2004.
See 9th report of Session 2003-04. Back
137
Deaths in Custody, Third Report, Session 2004-05, HL
15, HC 137. Back
138
Nineteenth Report, note 93 above, para 141. Back
139
Ibid, paras 140 & 143. Back
140
Ibid, para 140. Back
141
Ibid, para 143. Back
142
Including the Children's Commissioner for England and the Northern
Ireland Human Rights Commission. Back
143
Sixth Report, Session 2002-03, HL 67-1,HC 489-1; Commission
for Equality and Human Rights: Structure, Functions and Powers,
Eleventh Report, Session 2003-04, HL 78, HC 536. Back
144
Nineteenth Report, note 93 above, para 95. Back
145
Robert Hazell, "Who is the Guardian of Legal Values in
the Legislative Process: Parliament or the Executive?"
[2004] P.L. 495. Back
146
Comment provided for this report, June 2006. Back
147
Janet Hiebert, "Parliament and the Human Rights Act",
note 16 above, p38. Back
148
Nineteenth Report, note 93 above, para 41. Back
149
Paul Evans quoted in New Politics, New Parliament? A Review
of Parliamentary Modernisation since 1997, Alex Brazier, Mathew
Flinders and Declan McHugh, Hansard Society, 2005. Back
150
Interviews for this report. Back
151
David Feldman, "Parliamentary scrutiny of legislation
and human rights" [2002] P.L. 323, p336. Back
152
Nineteenth Report, note 93 above, p51. Back
153
Ibid, p49. Back
154
Ibid, p19. Back
155
Parliament and the Human Rights Act, note 16 above, p27. Back
156
Ibid, p37. Back
157
Ibid Back
158
Note 118 above, p346. Back
159
Anthony Lester, The Human Rights Act 1998 - five years on [2004]
E.H.R.L.R. 258, p262. Back
160
Note 93 above, para 8.09. Back
161
The Human Rights Act 1998: Guidelines for Departments,
Cabinet Office, 2000. Back
162
Section 19 Statements: Revised Guidance for Departments,
DCA. Back
163
Nineteenth Report, note 93 above, para 78. Back
164
Para 10.28. Back
165
Ibid, para 10.29. Back
166
Discussed in an interview with me in February 2006. Back
167
Letter to the Chair, 6 March 2006. Back
168
Equality Bill, Sixteenth Report 2004-05; Legislative
Scrutiny: Equality Bill, Fourth Report 2005-06. Back
169
Interview. Back
170
There are a number of obvious contrasts between the working practices
of the JCHR and the JCSI. According to two committee clerks with
experience of the committee, approximately 95% of Statutory Instruments
reviewed by the Joint Committee are 'in order' and of those which
are not, in the majority of cases the government accepts the committee's
recommendations. Of the 1500 SIs reviewed in the calendar year
2004, for e.g., there were only three where the committee reported
a dubious vires and in one the provision was revoked as a result.
Members accept the advice of the staff in about 99% of cases and
without discussion. Back
171
Schools White Paper, Ninth
Report, Session 2005-06. Back
172
Letter to Andrew Dismore from Lord Brabazon of Tara, 8
May 2006 Back
173
Letter to Andrew Dismore from Lord Brabazon of Tara, 9
May 2006 Back
174
Janet Hiebert, 'Governing under a Bill of Rights: What does
a compliance culture entail?', Legislatures and the Protection
of Human Rights Conference, Melbourne, July 20-22 2006, p18. Back
175
Email correspondence, 30.6.06. Back
176
Nineteenth Report, note 93 above, para 133. Back
177
Ibid, para 38. Back
178
Shifting the Balance: Select Committees and the Executive,
note 76, paras 1-4. Back
179
Note 93 above. Back
180
The Meaning of Public Authority under the Human Rights Act,
Seventh Report, Session 2003-04. Katie Ghose, Director of BIHR,
comments that the reports "remains a powerful influencing
tool today". Back
181
Hansard, HL, 19 October 2005. Back
182
R (Johnson and others) v London Borough of Havering
[2006] EWHC 1714. Back
183
Implementation of Strasbourg Judgments: First Progress Report,
Thirteenth Report of 2005-06. Back
184
2 WLR [2002] 754 at para 52. Back
185
Interviews with members and staff of the JCHR, May 2004, recorded
in Parliament and the Human Rights Act, note 16 above,
p23. Back
186
One member suggested PMBs should only be scrutinised if they reach
Report stage. Back
187
One member who has also had experience of the EU Select Committee
made the point that the scrutiny work of the JCHR is more technical
than that of the EU Committee in that the latter look at the merits
of the proposal but that is not appropriate for the JCHR. Back
188
Nineteenth Report, note 93 above, para 78. Back
189
Some member are strongly of the view that there needs to be a
more consensual approach to discussing and amending reports, as
was characteristic of the Committee in the previous parliaments,
but it is beyond the scope of this review to comment on this process.
Back
190
Although such scrutiny is within the terms of reference of the
JCSI, the Clerk of the Committee could only suggest about 6 reported
instances in the past 5 years where the JCSI has taken up ECHR
compatibility issues with Departments, and in some cases reported
instruments, "for reasons connected with compatibility."
Email correspondence, 20 June 2006. Back
191
One of the fundamental principles of interpretation applied by
the European Court of Human Rights, is that Convention rights
"are practical and effective" not "theoretical
or illusory". Note 36 above. Back
192
Private meeting Back
193
There have been at least three cases since March where the courts
have quoted JCHR reports approvingly or cited Committee reports
extensively: e.g. Re MB [2006] EWHC 1000 (Admin), R
(Baiai and others) v Secretary of State for the Home Department
[2006] EWHC 823 (Admin) and Secretary of State for the Home
Department v JJ and others [2006] EWHC 1623 (Admin). Back
194
Brown. Note 53 above. Back
195
International Transport Roth GMBH v Secretary of State for
the Home Department [2002] 1 CMLR 52. See also Francesca Klug,
Judicial Deference under the Human Rights Act 1998 [2003]
E.H.R.L.R. 125. Back
196
A Bill of Rights for New Zealand: A White Paper, 1985 [1984-85]
I AJHR A 6 6. Presented to the House of Representatives by the
Hon. Geoffrey Palmer, Minister of Justice. Back
197
See note 51 above. Back
198
Produced by the New Zealand Legislation Advisory Committee, serviced
by the Ministry of Justice. There is no parliamentary equivalent
to the JCHR in New Zealand or any other jurisdiction, but NZ select
committees take account of the legal advice provided by the LAC.
The rights, and limitations, in the New Zealand Bill of rights
are similar, but not identical, to those in the ECHR so this is
produced for illustrative purposes only. Back
199
The European Court of Human Rights effectively made this point
in Hirst v UK [October 2005]. Back
200
Adoption and Children Bill :as amended by the House of Lord
on Report, Twenty-Fourth Report, Session 2001-02. HL 177;HC
979. Back
201
Ibid, para 15. Back
202
Ibid, para 35. Back
203
Sixth Report, Session 2005-06. Back
204
Ibid, para 1.28. Back
205
Effectiveness is a significant factor in proportionality and in
the human rights framework more generally - it is not necessarily
to limit freedoms, like the right to smoke in pubic places, if
it won't protect people anyway. Back
206
Note 170above, para, 1.37. Back
207
Governing Under a Bill of Rights: What does a compliance culture
entail? Conference speech, July 2006, note 141 above. Back
208
Ibid. Back
209
The Human Rights Act and the Politicians, note 16 above,
pp 453-475. Back
210
Nineteenth Report, note 93 above, para 34. Back
211
There are parallels here with the House of Lords Constitution
Committee and European Union Select Committee which combine both
functions. Back
212
Law Commission Consultation Paper no 178, December 2005. Back
213
13 February 2006. Back
214
See section 13.6 above. Back
215
Recognised, for example, in Lord Brabazon's letter of 8 May, notes
139 and 140. Back
216
Nineteenth Report, note 93 above, para 73. Back
217
Interview Back
218
Note 70 above. Back
219
This table excludes the session 2000-01 Back
220
Listed in the House of Commons Sessional Information Digests Back
221
Generally the JCHR list a bill as commented substantively on if
it is "drawn to the attention of both Houses" Back
222
These are; Armed Forces, Company Law Reform, Safeguarding Vulnerable
Groups, Animal Welfare, Childcare, European Union, Finance (no
2), Housing Corporation (Delegation), National Health Service,
National Health Service (Consequential Provisions), National Health
Service (Wales), Northern Ireland (Miscellaneous Provisions),
Parliamentary Costs and Wireless Telegraphy Back
223
Four of these bills were reported on in the 2001-02 session. There
was a motion to suspend them and they were re-introduced in the
2002-03 session Back
224
As above, two of these bills were reported on in the 2001-02 session.
There was a motion to suspend them and they were re-introduced
in the 2003-04 session Back
225
Figure correct at 20 June 2006. Six bills listed by JCHR as 'not
yet considered' Back
226
From 17.05.05 to 14.03.06 Back
227
Significant impact is defined to mean 'relying on JCHR reports
to 1) scrutinise a bill; 2) ask questions or; 3) engage substantively
in debate' Back
228
All Government bills unless indicated otherwise. Back
229
One remedial order and two draft bills. Back
230
David Feldman, 'Parliamentary scrutiny of legislation and human
rights', [2003] P.L. 323 at 346. Back
231
Hiebert, 'Parliament and the Human Rights Act: Can the JCHR help
facilitate a culture of rights?', 4(1) International Journal of
Constitutional Law, 2006 at 29 Back
232
Above, note 1 at 333. Back
233
Hiebert, note 2 above at 35. Back
234
6 bills did not proceed to second reading in second House in this
session. 5 of these were re-introduced in the next session. Back
235
Figures correct to 2 June 2006. Back
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