Legislative scrutiny: Constitutional Reform and Governance Bill; Video Recordings Bill - Human Rights Joint Committee Contents


Bills drawn to the special attention of each House


1  Constitutional Reform and Governance Bill
Date introduced to first House

Date introduced to second House

Current Bill Number

Previous Reports

20 July 2009

HC Bill 4

None

Background

1.1 This is a Government carry-over bill first introduced in the House of Commons in the 2008-09 session on 20 July 2009. The Bill received its Second Reading on 20 October 2009 and progressed as far as the Committee of the Whole House stage which was not completed. It was reintroduced to the House of Commons on 19 November 2009 and is currently awaiting a date for continuation of the Committee of the Whole House. The Lord Chancellor and Secretary of State for Justice, the Rt Hon Jack Straw MP, has made a statement of compatibility under s. 19(1)(a) of the Human Rights Act 1998.

1.2 We wrote to the Secretary of State on 26 October 2009 asking a number of questions about certain aspects of the Bill with human rights implications or implications for the way in which we conduct our scrutiny of laws and policies for human rights compatibility. We received a full response, for which we are grateful, from Michael Wills MP, Minister of State, Ministry of Justice, dated 17 November 2009. That correspondence is published with this Report.

Purposes and effect of the Bill

1.3 The main purpose of the Bill is to give effect to some of the Government's proposals for constitutional reform contained in The Governance of Britain Green Paper[1] published on 3 July 2007 and outlined by the Prime Minister in his first statement to the House of Commons as Prime Minister on the same day.[2]

1.4 An early draft of this Bill was published as the Draft Constitutional Renewal Bill in March 2008. That draft Bill was subject to pre-legislative scrutiny by a Joint Committee chaired by Michael Jabez Foster MP.[3] The scope of the Bill is much more modest than the Government's stated intentions in its Green Paper, the Prime Minister's statement to the House and the draft Bill scrutinised by the Joint Committee. The Bill makes no provision for reforming the role of the Attorney General, for example, nor for improving the transparency and effectiveness of the Intelligence and Security Committee.[4] The Bill's provisions in relation to judicial appointments are also considerably pared down from the Government's earlier proposals. The only prerogative powers affected by the Bill are the powers to manage the Civil Service and to ratify international treaties.

1.5 The Bill does, however, contain some provisions which were not anticipated in the Government's earlier constitutional reform proposals, including measures concerning the conduct and discipline of members of the House of Lords and the time limits for human rights actions against devolved administrations. It also includes measures designed to increase the transparency of Government financial reporting to Parliament, which have been discussed for some time, although not as part of the Governance of Britain reforms.

1.6 We welcome a number of aspects of the Bill as human rights enhancing measures, in particular the repeal of the provisions concerning protest around Parliament in the Serious Organised Crime and Police Act 2005, or as measures enhancing opportunities for effective human rights scrutiny in Parliament, such as the provisions in the Bill concerning the ratification of international treaties. However, from a human rights perspective we are disappointed that the Bill does not reflect the much more ambitious scope of the Prime Minister's original statement about constitutional reform to the House of Commons in July 2007, which included a commitment to exploring the possibility of a new UK Bill of Rights, building on the Human Rights Act, as part of a wider programme of constitutional reform: a subject which we enquired into and reported favourably on in 2008 in our Report A Bill of Rights for the UK? We are also disappointed that the Bill does not take the opportunity to address a number of longstanding issues of human rights concern, such as the restrictive judicial interpretation of the meaning of "public function" in the Human Rights Act 1998 which continues to deprive significant numbers of vulnerable users of public services of the protection of that Act.

Explanatory Notes

1.7 The Explanatory Notes to the Bill provide a reasonably detailed explanation of the Government's view that the Bill is compatible with the ECHR, including helpful references to relevant case-law which has been taken into account in reaching that view.[5]

Significant human rights issues

(1) PROTEST AROUND PARLIAMENT

The effect of the Bill

1.8 Part 4 of the Bill deals with public order. Clause 35 proposes to omit sections 132 to 138 of the Serious Organised Crime and Police Act 2005 (SOCPA) which deal with protest around Parliament and to insert, by Schedule 5, new powers into the Public Order Act 1986. The Bill proposes to reduce the area within which specific provisions operate to within 250 metres of the area where Parliament is sitting.[6]

1.9 The Government announced in July 2007 that it would review the current law on protest around Parliament and proposed to repeal section 132 to 138 SOCPA.[7] It invited Parliament to consider whether specific provisions, over and above those contained in the Public Order Act, were required to manage protest around Parliament.[8] The Joint Committee on the draft Constitutional Renewal Bill agreed that the provisions should be repealed and endorsed the presumption that protest must not be subject to unnecessary restrictions. It noted, however, that "the right to protest must be balanced against ensuring that the police and other authorities have adequate powers to safeguard the proper functioning of Parliament and to protect the enduring amenity value of Parliament Square …".[9] Its recommendations included that:

  • As a general rule there should be unrestricted access to the Houses of Parliament
  • for Members, staff and the public, subject to some disruption during large scale
  • protests, with a minimum of one point of vehicular and pedestrian entry.[10]
  • Regulation of protest around Parliament should apply equally to sitting and non-
  • sitting days.[11]
  • The legal requirement to obtain prior authorisation from the Metropolitan Police
  • Commissioner before protesting in the vicinity of Parliament should be removed.[12]

1.10 In our recent Report on Policing and Protest, we welcomed the proposal to repeal sections 132 to 138 SOCPA, broadly endorsed most of the recommendations of the Joint Committee on the draft Bill and recommended that the Public Order Act 1986 should be amended to enable conditions to be placed on static protests which seriously impede, or are likely seriously to impede, access to Parliament.[13]

1.11 During the Second Reading debate, the Secretary of State for Justice, the Rt Hon Jack Straw MP, set out the Government's intention behind the public order provisions of the Bill:

Our starting point has been to remove unnecessary restrictions on the right of protest, with a presumption in favour of freedom of expression, balancing that with the requirement that Members should be able to gain access to the House freely, that their work should not be disrupted, and that the general public, who may not necessarily be taking part in demonstrations, should not have their rights disrupted.[14]

1.12 We welcome the Government's decision to legislate to repeal sections 132 to 138 SOCPA and, in particular, to amend the Public Order Act to deal with protest around Parliament. This is consistent with much of the evidence we received during our policing and protest inquiry and gives effect to the recommendations which we made in our Reports on this issue. As we have previously stated, sections 132 to 138 have proved too heavy-handed in practice, are difficult to police, and lack widespread acceptance by the public. We also welcome the Government's decision to reduce the area around Parliament in which special requirements will apply to 250 metres as this constitutes a more proportionate response which is less intrusive on individual rights to freedom of association and expression. However, some details of the proposed replacement provisions give us cause for concern, as they are, in parts, widely drafted and may result in legal uncertainty. We deal with these provisions in more detail below.

Police power to give directions imposing conditions

1.13 Schedule 5 allows a senior police officer to give directions where a public procession or public assembly takes place within 250 metres of Parliament or a specified building. These directions impose conditions on those organising or taking part in a procession or assembly which "in the officer's reasonable opinion, are necessary" for ensuring that certain specified requirements are met.[15]

1.14 We wrote to the Secretary of State for Justice to ask him to provide examples of the types of conditions which the Government considers will be reasonable and necessary for a senior police officer to impose.[16] The Rt Hon Michael Wills MP, Minister of State, Ministry of Justice, replied noting that the drafting of the Schedule in relation to the conditions which may be imposed is "the same as that which appears concerning conditions on public processions and assemblies in Part 2 of the Public Order Act". He stated that the Government therefore "envisages that the types of conditions that will be reasonable and necessary will be the same types of conditions that can be imposed on processions and assemblies in the rest of the country under the Public Order Act. These conditions would have to be necessary for ensuring that the specified requirements in relation to access are met". He provided the example of the police requiring demonstrators to keep a path clear to allow pedestrians or vehicles access to entrances to Parliament and suggested that a procession might be re-routed or an assembly repositioned if the number of protesters was large enough to obstruct access to Parliament.[17]

1.15 We also asked what Codes of Practice, training, policy and guidance will be issued to senior police officers about the operation of their discretion.[18] The Minister replied that the Government intended to issue a Home Office Circular to the Metropolitan Police and others containing guidance stating "it is important that the police, Parliamentarians and those wishing to demonstrate around Parliament are clear about what maintaining access to and from the Palace of Westminster means". The Minister explained that the guidance will contain the considerations which the police will need to take into account before giving directions which are reasonably believed to be necessary to maintain access to the Palace of Westminster, but that the Metropolitan Police is ultimately responsible for training its officers about the new powers.[19]

1.16 We asked the Minister whether it was proposed that the ACPO manual on Keeping the Peace would be updated to provide guidance to police officers in advance of the powers coming into force. In reply, the Minister told us that the ACPO manual was currently being revised but would be unlikely to be published until later in 2010. However, "given that the exercise of the new powers will be undertaken primarily by officers from the Metropolitan Police, we intend to provide separate specific guidance for the Metropolitan Police on the new powers by way of the Home Office Circular mentioned above. We will consult ACPO on the need to flag the new provisions in the current revision of the manual on Keeping the Peace".[20]

1.17 We agree with the Minister that it is vitally important that the police, parliamentarians and protesters are clear about the level of access to Parliament which is envisaged. This accords with the evidence we heard and the recommendations we made in our Policing and Protest Report. We note that conditions may be imposed which are necessary "in the [senior police] officer's reasonable opinion". However, we are concerned that the "reasonable" opinion of an officer is a subjective test which raises the risk of uncertainty as to what an individual officer will or will not deem to be "reasonable" in the circumstances. This may lead to confusion for protesters, police officers and those seeking access to the Parliamentary estate.

1.18 We have previously recommended that any officer who is involved, in whatever way, with policing protests, should have access to accurate and helpful guidance on how to police compatibly with human rights standards. In his recent Report on Adapting to Protest - Nurturing the British Model of Policing, Her Majesty's Chief Inspector of Constabulary referred to the police having out of date training and guidance on policing protest. He stated:

The current tactics training manual was written in 2004 and has not been revised since. ACPO has recognised the need for revision of the manual. Work started over a year ago but is currently incomplete. Knowledge transfer in today's world needs to be rapid and accessible. More practical mechanisms of disseminating accurate up-to-date knowledge need to be developed.[21]

1.19 We welcome the Minister's commitment to publishing guidance to the Metropolitan Police in a Home Office Circular on the operation of the new powers. Such guidance should make clear the kinds of conditions which it is reasonable for an officer to impose. The new legislation on protest around Parliament will also apply to locations away from Westminster where Parliament or a parliamentary committee meets and consequently guidance should be available to police officers across the UK. We reiterate our recommendation that clear, up to date and accurate guidance on policing protest, in a variety of circumstances, is needed for police officers throughout the country and urge ACPO and the Home Office to ensure that the various manuals on policing protest are rapidly updated to take account of the proposed new powers in this Bill. We share Her Majesty's Inspector's view that practical methods of disseminating information to officers in a timely manner need to be developed to avoid a repetition of the time lag which has occurred in relation to the revision of the current ACPO manuals.

Secretary of State's order-making powers

1.20 The Secretary of State is granted a wide order-making power to specify requirements that must be met to maintain access to and from the Palace of Westminster or a specified building, such as the number or location of entrances to be kept open or access routes around Parliament.[22] We asked why the Government has chosen to set out the requirements which may be specified by the Secretary of State for the purposes of maintaining access to and from Parliament or a specified building in a non-exhaustive rather than an exhaustive list and why the Bill enables the Secretary of State to do so by regulation, rather than on the face of the Bill, to ensure legal certainty. The Minister explained that "the Government has adopted this approach to ensure that we retain the flexibility necessary to ensure that the regime we put in place can adapt to the reality of changing circumstances". He suggested that this approach enhanced legal certainty as "the order-making power will enable clear and specific requirements to be set out in legislation".[23] He stated:

Although the list of matters that may be included in the order specifying requirements for access is a non-exhaustive list, the Government considers that this is reasonable given that the requirements to be specified are subject to the limitation that they must relate to maintaining access to and from the Palace of Westminster (or specified building in new section 14ZC).[24]

He also committed the Government to making the draft text of the order available to the House when the provisions are reached in Committee.[25]

1.21 In its Memorandum to the Delegated Powers and Regulatory Reform Committee, the Government stated that:

Rather than the requirements being left as a matter solely for the senior police officer at the scene, it was considered that the order-making power invested in the Secretary of State provides more transparency for the police, Parliament and protesters in terms of maintaining access to and from the Palace of Westminster.[26]

The Government reiterated its view that this had an advantage over primary legislation as requirements may change from time to time and there is a need to be flexible[27] and contended that the negative resolution procedure was appropriate.[28]

1.22 We welcome the Government's commitment to making available the draft text of the order specifying the requirements for access to Parliament in time for the Committee stage debate. This facilitates Parliament's ability to scrutinise the provisions for human rights compliance. We accept that there may be some need for flexibility, and we look forward to seeing the exact terms of the draft order to see if our concerns about legal certainty are met.

1.23 The Bill also vaguely states that "an order under this section may confer discretions on the senior police officer".[29] We therefore asked the Minister precisely what discretions the Government envisages will or may be conferred on senior police officers by paragraphs 14ZA(5) and 14ZC(8). The Minister replied:

The Government envisages that the requirements may be to keep at least one entrance open for pedestrian and vehicle access to the Palace of Westminster at all times. It is not necessarily practical to say that one particular entrance is the "open entrance" at all times and it may be necessary for the senior police officer to consider which entrance, in all the circumstances of the moment, is the most practical one to keep open. It is this type of discretion that the Government envisages will or may be conferred on senior police officers.

Additionally, each demonstration will throw up a range of different factors in terms of the vulnerability of individuals or character of the demonstration. Clearly police officers need to use discretion in enforcing legislation in order to strike the appropriate balance between securing access, facilitating protest, protecting life and keeping the peace.

The discretion that could be conferred on the senior police officer would be exercised in the context of the other limitations on the order-making power. In particular, the Order would have to relate to the maintaining of access to and from the Palace of Westminster.[30]

1.24 We welcome the fact that the purpose of the order making power is clearly defined in terms of maintaining access to and from the Palace of Westminster (or a specified building being used by Parliament) and that the scope of any discretions conferred by the order on the police must also be limited by that overriding purpose of maintaining access. However, we are concerned about the vagueness of the language used in paragraphs 14ZA(5) and 14ZC(8) of Schedule 5 and the possibility of open-ended and broadly drafted discretions being conferred on police officers by these provisions. We agree that officers policing an event will have to exercise their discretion as to how the specified requirements for maintaining access should be met. The exercise of that discretion could relate, for example, to the precise entrances to Parliament which should be kept open, but only insofar as it is necessary in order to maintain access to and from the Palace of Westminster or a specified building. We recommend that the Bill be amended to reduce the scope for any possible uncertainty about the discretions which may be conferred on the police by the order specifying the requirements for maintaining access. The following amendments are suggested in order to give effect to this recommendation.

Schedule 5, page 55, line 7, at end insert 'in relation to how the specified requirements for maintaining access to and from the Palace of Westminster shall be met'

Schedule 5, page 56, line 27, at end insert 'in relation to how the specified requirements for maintaining access to and from the specified building shall be met'

Public procession or public assembly?

1.25 Although all conditions which may be imposed are limited to those which maintain access to and from the Palace of Westminster or a specified building, a distinction is drawn in the Bill between public processions and public assemblies:

  • In relation to public processions, a non-exhaustive list of conditions which may be imposed is set out in the Bill. These include conditions regarding the route of procession or prohibiting it from entering a public place.[31]
  • In relation to public assemblies, the Bill sets out an exhaustive list of conditions which may be imposed, namely, the place, maximum duration and maximum number of persons at the assembly.[32]

1.26 The human rights section of the Explanatory Notes states that "insofar as the conditions may only pertain to the place of the demonstration, its maximum duration and the maximum number of persons who may constitute it, they are proportionate in respect of legitimate aims".[33] However, these conditions only relate to public assemblies (i.e. static demonstrations), not to public processions, where no limit on the conditions which may be imposed is set out in the Bill, save that they must meet the aim of maintaining access to and from Parliament or a specified building. The Explanatory Notes suggest that the directions which may be made under section 14ZA are much more limited than those under the SOCPA regime as they only relate to one aim and therefore:

… the Government considers that this is a legitimate aim, namely the proper and secure functioning of Parliament. Since directions are limited in scope and in geographical effect (section 14ZB), the Government's view is that they are a proportionate interference with individual rights.[34]

1.27 We asked the Minister to explain why the Bill does not set out the conditions which may be imposed on a public procession in an exhaustive list. He replied that this mirrored the current Public Order Act 1986 which set out an exhaustive list of conditions which may be imposed on public assemblies, but did not exhaustively set out the conditions which may be imposed on a public procession.[35] He continued:

The Government considers that processions do raise different issues compared to static assemblies and therefore that it is harder to come up with a definitive list of conditions which will cover all eventualities with a moving group. The difference in treatment also reflects the desirability of having tighter controls on the conditions that can be placed on public assemblies compared to public processions… The Government decided to mirror the approach in the rest of the country as we could see no reason in this context to make the regime around Parliament different from the regime elsewhere in the country.[36]

1.28 We agree with the Government's view that it is desirable, in terms of legal certainty and clarity for police and protesters alike, for the same or similar provisions to apply throughout the country in relation to protest and that as few distinctions between different protests should be created as possible. However, in view of the particular significance of Parliament as a venue for protest and the historic problems which have arisen in policing protest in this area, we consider that it is appropriate for a more precise list of conditions to be set out in relation to public processions around Parliament. We recommend that the Bill be amended to include an exhaustive list of conditions which may be applied to public processions around Parliament. The following amendment is suggested to give effect to this recommendation:

Schedule 5, page 55, line 12, leave out 'include' and insert 'are limited to'

1.29 Alternatively, in the interests of legal certainty, we recommend that the Government publish in the relevant guidance a comprehensive list of the sorts of conditions that may be imposed on processions under this section.

(2) RATIFICATION OF TREATIES

The effect of the Bill

1.30 The Bill gives effect to the Government's proposal that Parliament should have an opportunity to scrutinise treaties before they are ratified by the Executive, by putting parliamentary scrutiny of international treaties prior to ratification on a statutory footing.[37]

1.31 The new statutory procedure for the ratification of treaties is based on the convention known as the Ponsonby Rule. A treaty is to be laid before Parliament for a period of 21 sitting days, during which time both Houses have the opportunity to resolve that the treaty should not be ratified.[38] If the 21 sitting days expire with no such resolution being passed by either House, the Government can proceed to ratification. If during the 21 day period the House of Commons resolves that the treaty should not be ratified, the Government cannot at that stage proceed to ratification. If it still wishes to ratify the treaty, the Government must lay a statement explaining why it believes the treaty should be ratified and then wait a further 21 sitting days before it can proceed to ratification. If, during this second 21 day period, the House of Commons resolves against ratification again, the Government remains blocked from ratifying the treaty: if it still wishes to ratify, it must re-lay its statement and start the 21 day period running again. The Bill therefore gives legal effect to a resolution of the House of Commons that a treaty should not be ratified.

1.32 The House of Lords, however, does not have the power to block ratification. If it resolves that a treaty should not be ratified, the Government must lay a statement explaining why it believes that the treaty should nevertheless be ratified, but is not required to provide the House of Lords with a further 21 sitting days to consider its statement: the Government can proceed to ratify the treaty as soon as the statement is laid, if the House of Commons has not resolved against ratification.

1.33 The Bill also provides a mechanism for Parliament to request extensions to the 21 day sitting period.[39] Extensions are at the discretion of the relevant Minister and can be granted in blocks of up to 21 sitting days. Extensions can be granted more than once.

1.34 The new procedure may, however, be disapplied if a Minister is of the view that for exceptional reasons a treaty should be ratified without having to meet the specified conditions.[40] Where this exceptional power is relied upon, and a treaty ratified without meeting the necessary conditions, the Minister must either before or as soon as practicable after the treaty is ratified lay before Parliament a statement explaining why the Minister was of the opinion that the treaty should be ratified without meeting the prescribed conditions.

The JCHR's particular interest

1.35 As a human rights committee, we have a particular interest in the opportunities which exist for effective parliamentary scrutiny of international treaties prior to their ratification. As our predecessor Committee explained in 2004,[41] the problem of lack of effective parliamentary scrutiny of international treaties is particularly pressing in relation to human rights treaties, because it is now well established that UK courts will have regard to such treaties in a wide range of circumstances, whether or not they have been incorporated into UK law,[42] and the Executive and administration also routinely have regard to such treaties in both policy-making and decision-making. Given the significant status which international human rights treaties have attained in our domestic legal system, it is particularly important that Parliament be more involved in scrutinising treaties which incur human rights obligations on behalf of the UK, before their ratification by the Executive, in order to enhance their democratic legitimacy.

1.36 Both we and our predecessor Committee have therefore long been committed to increasing opportunities for Parliament's involvement in the scrutiny of human rights treaties, or treaties with human rights implications, prior to their ratification. Our predecessor Committee decided to report to Parliament in relation to all human rights treaties, or amendments to such treaties, in respect of which there is a need to ensure that Parliament is fully informed about the background, content and implications, to enable parliamentarians to decide whether it is appropriate to call for a debate on the treaty concerned before it is ratified and to ensure that any such debate is properly informed.[43] The Government welcomed the Committee's intention to report to Parliament on future human rights treaties, agreeing that this will facilitate informed parliamentary debate and so enhance the democratic legitimacy of any new human rights obligations, and promised that the Government "will bear this in mind in future as a predictable procedural step in the timetable for parliamentary approval of human rights treaties and amendments."[44] When we reviewed our working practices at the beginning of this Parliament, we decided to continue with this practice, agreeing with our predecessor about the importance of increasing parliamentary understanding and involvement in the process of ratifying human rights treaties in order to enhance to some degree the democratic legitimacy of such treaties and the Government's accountability in respect of them.[45]

1.37 To this end, our predecessor Committee reported prior to ratification of the Fourteenth Protocol to the European Convention on Human Rights (the treaty designed to introduce important reforms to the European Court of Human Rights in order to enable it to deal with its ever-growing caseload). During the current Parliament we have reported, prior to ratification, on one major human rights treaty, the UN Convention on the Rights of Persons with Disabilities.[46] We have also reported on treaties which, while not strictly speaking human rights treaties themselves, have human rights implications: the Council of Europe Convention on the Prevention of Terrorism,[47] and (briefly) the UK-Libya Prisoner Transfer Agreement (to which we return below).[48] In the case of the UN Convention on the Rights of Persons with Disabilities (a major UN human rights treaty), we conducted a detailed inquiry into the reservations and interpretative declarations that the UK Government was considering entering when it ratified the treaty, considering a significant number of submissions from interested individuals and organisations and oral evidence from the Minister. In our Report, which scrutinises the Government's justifications for its proposed reservations and interpretative declarations, we expressed the hope that our inquiry had demonstrated the importance of parliamentary scrutiny in ensuring that the process leading to ratification of treaties by the Government is transparent, accountable and informed by the views of those who will be most directly affected.[49] Our report was subsequently the subject of a House of Lords debate.[50]

1.38 We therefore welcome in principle the implementation of the Government's proposal to try to increase parliamentary involvement in the ratification of treaties.

1.39 However, in view of our particular interest, as a human rights committee, in the opportunities for parliamentary scrutiny of international treaties, we have considered carefully the detail of the proposed statutory regime in the light of our experience of scrutinising international treaties.

Facilitating parliamentary scrutiny by the provision of information and reasons

1.40 Under the new statutory regime for the ratification of treaties set out in the Bill, one of the requirements which must be met before a treaty can be ratified is that a copy of the treaty must have been laid before Parliament.[51] The Government's current practice, since 1997, is to lay an Explanatory Memorandum with each treaty laid under the Ponsonby Rule at the same time as laying a copy of the treaty. In our experience the key to effective parliamentary scrutiny is the timely provision of fully reasoned explanations and justifications by the Government. We were surprised that the Bill does not reflect the current practice under the Ponsonby Rule by requiring the Minister to lay an Explanatory Memorandum before Parliament at the same time as the copy of the treaty is laid, in order to facilitate scrutiny of the treaty within the 21 day period. When we asked the Government whether it would turn this practice into a requirement it replied that it does not consider it necessary to do so: it is in the Government's interests to explain to Parliament its reasons for proposing to ratify a treaty and this will even more be the case in future under the new statutory regime in view of the legal effect it will give to a resolution of either House against ratification. The Government intends to continue its practice of laying such an Explanatory Memorandum and prefers not to "set in stone" this particular way of providing information to Parliament in a way that might inhibit the evolution of new and better ways of doing so in future.

1.41 We welcome the Government's unequivocal statement of its intention to continue the practice of laying an Explanatory Memorandum at the same time as the treaty. However, we recommend that the laying of an Explanatory Memorandum at the same time as the treaty be an express requirement in the Bill which must be met before a treaty can be ratified. The following amendment to the Bill is designed to give effect to this recommendation:

Page 12, line 38, clause 24(1)(a), leave out 'a copy of the treaty' and insert:

i.   a copy of the treaty and, at the same time,

ii.  an explanatory memorandum explaining the background to the treaty, the Minister's reasons for proposing to ratify it, and the reasons for any reservations or interpretative declarations that the Minister intends to enter on ratification.

1.42 We also asked the Government whether it would undertake to notify relevant select committees when a treaty has been laid, and in response the Government reiterated its undertaking given in 2000 to the House of Commons Procedure Committee, that copies of all treaties laid before Parliament will be sent to the relevant select committee at the same time. This is important because committees do not necessarily have the resources systematically to monitor the laying of treaties before Parliament, and when the period for scrutiny is as short as 21 days any time lost might prevent the treaty from being scrutinised at all. We have appreciated the Government's particular commitment to facilitate the involvement of our Committee where a treaty raises significant human rights issues. Even with that arrangement, however, there has sometimes been a delay between the laying of a treaty with human rights implications and it being drawn to our attention. This was recently the case, for example, in relation to the Prisoner Transfer Agreement with Libya: we did not learn of the fact that this treaty had been laid until some way into the 21 day period for scrutiny. We recommend that the Government undertake to send copies of all treaties with human rights implications to the JCHR, along with their Explanatory Memoranda, as soon as they are laid under clause 24(1).

Extension of time for parliamentary scrutiny of treaties

1.43 The Bill provides that a Minister may extend the 21 sitting day period for scrutiny of a treaty for up to a further 21 days, and may do so more than once. The period is extended by the Minister laying before Parliament a statement to that effect and setting out the length of the extension.

1.44 We asked the Government whether the Minister should also be required to lay a statement explaining why any request for an extension of the 21 sitting day period has been refused, but the Government did not consider this necessary. It said that, in practice, requests for an extension of time come from a select committee, and if the Minister refused the select committee's request for an extension of time it would be open to the select committee to bring the correspondence to Parliament's attention.

1.45 We regret that we do not find this to be a satisfactory answer in light of our experience of scrutinising treaties. We requested an extension of the 21 sitting days period under the Ponsonby Rule in relation to the Prisoner Transfer Agreement with Libya, to enable us to scrutinise properly the possible human rights implications of the treaty and to report to Parliament prior to ratification, to give parliamentarians the opportunity to consider whether to debate the treaty. The Secretary of State agreed to a small extension, but refused our request to extend the period for scrutiny of the treaty for long enough to enable us to publish a substantive report on the treaty before its ratification. The reasons he gave in his letter for refusing to extend the time further were that delay in ratifying the treaty would be damaging to the UK's judicial and wider bilateral relations with Libya. He said that any further delay in ratification of the treaty would be likely to lead to serious questions on the part of Libya about the UK's willingness to conclude these agreements. As a result, as our Report records, we were unable to publish a substantive report on the treaty before ratification. We published the correspondence setting out the minister's reason for refusing our request for an extension, but this was only possible after ratification (a ministerial statement explaining why the request for an extension had been refused, by contrast, could be required to be laid before Parliament before ratification). With the benefit of hindsight, in view of the subsequent controversy over the release of Abdel-bassett Al-Megrahi (the Libyan man convicted of the Lockerbie bombing),[52] this was a treaty which should have been subjected to much more detailed parliamentary scrutiny prior to ratification.

1.46 We remain of the view we expressed in our report on the Prisoner Transfer Treaty with Libya, that when a select committee states that it intends to scrutinise a treaty, ratification should be delayed until the committee's inquiry has concluded. We recommend that the Bill be amended to require the Minister to lay a statement explaining why any request for an extension of the 21 day sitting period has been refused.

Ministerial power to disapply in exceptional cases

1.47 We asked the Government to explain its justification for including in the Bill a power for the Minister to disapply the new statutory regime in exceptional cases and to indicate the sort of exception that the Government has in mind. The Government refused to be drawn on the type of exceptional cases it has in mind: "it is impossible to predict in advance what those [exceptional] circumstances might be since by their very nature they tend to arise through exceptional combinations of a range of factors." What the Government appears to have in mind are cases of urgency, where it is not possible in the time available to complete the usual laying procedure.

1.48 Our experience of attempting to scrutinise the Prisoner Transfer Agreement with Libya leads us to be very wary of granting to ministers a very widely worded power to proceed to ratification of a treaty after bypassing Parliament altogether. The Secretary of State's invocation in that case of considerations of urgency and relations with a foreign state are precisely the sort of "exceptional cases" that could be relied upon if this provision remains in the Bill. We agree with the Public Administration Committee, that "it does not seem right that it should be for the Government alone to decide whether to circumvent its obligations to Parliament", and that "a safeguard that can be ignored at will is no safeguard at all".[53] We recommend that the ministerial power to disapply the new regime in exceptional cases be removed from the bill.

(3) THE RIGHT TO A FAIR HEARING AND ACCESS TO COURT IN THE DETERMINATION OF CIVIL RIGHTS

1.49 The Bill contains a number of different provisions which engage, or may engage, the right of an individual under Article 6(1) ECHR to a fair hearing in the determination of civil rights, a right which has been interpreted by the European Court of Human Rights as including a right of access to a court.[54]

(a) Removal of Civil Service Commissioners

1.50 The Bill provides[55] for the removal from office of the Civil Service Commissioners, including the First Commissioner, by HM the Queen on the recommendation of the Minister for the Civil Service if one of four specified conditions is met.[56] One of those conditions is that person is "unfit or unable to carry out the functions of the office."[57] The Bill does not specify the procedure to be adopted in removing the First Commissioner or Commissioner from office. The Explanatory Notes to the Bill, however, state that "it is envisaged that the procedure will be specified in the terms of appointment."[58]

1.51 We note that the power to remove the First Commissioner and the Civil Service Commissioners is exercisable by HM the Queen on the recommendation of the Minister for the Civil Service. The Comptroller and Auditor-General, on the other hand, is removable by HM the Queen only on an address of each House of Parliament. Given the importance of the independence of the civil service, we do not see any justification for providing any less rigorous protection to Civil Service Commissioners. We therefore recommend that the Bill be amended to provide that the First Commissioner and other Civil Service Commissioners may only be removed by HM the Queen on an Address by each House of Parliament.

1.52 Alternatively, we recommend that the procedural safeguards against improper exercise of the power of removal be spelt out in more detail. The Government accepts, rightly, that the removal from office of the First Commissioner or Commissioner is likely to engage Article 6(1) ECHR as it is likely to constitute the determination of a civil right within the meaning of that Article.[59] However, it considers that the combination of the procedure which will be set out in the terms of appointment, and the fact that the decision of the Minister recommending removal would be amenable to judicial review, is sufficient to satisfy the requirements of Article 6(1) ECHR.

1.53 In view of the Bill's silence on the procedure to be followed prior to removal, we asked the Government whether it would agree to amend the Bill so as to specify the detail of the procedure to be used in removing the First Commissioner or Commissioners from office; or at the very least publish the detail of the procedure which it intends to set out in the Commissioners' terms of appointment. The Government replied that it is not considered necessary to determine the procedure to be used in removing the First Commissioner or Commissioners from office on the face of the Bill. "The process that is adopted must be fair in the context of the conditions that must be met."

1.54 We find the Government's response disappointing. As we have repeatedly pointed out to Government departments, where the Government argues that a provision in a Bill is compatible with Article 6(1) ECHR because of the combination of the availability of judicial review and the procedures before the original decision-maker, we cannot assess the provision's compatibility with Article 6(1) ECHR unless we know exactly what those procedures are going to be. In the absence of this information we cannot advise Parliament about the degree of risk that the Bill may lead to the removal of Commissioners in breach of Article 6(1) ECHR.

1.55 We note that under the Constitutional Reform Act 2005 the Lord Chancellor's power to remove a judicial office-holder is expressly made "exercisable only after the Lord Chancellor has complied with prescribed procedures."[60] The Lord Chief Justice, with the agreement of the Lord Chancellor, has the power to make regulations providing for the procedures that are to be followed,[61] and has made the Judicial Discipline (Prescribed Procedure) Regulations 2006.[62] We consider the provisions in the Constitutional Reform Act 2005 concerning the removal of judicial office holders to be a good model for the protection both of the Article 6(1) rights of the office holders and for the constitutional principle of civil service independence. We recommend that the Bill be amended to require that the Minister's power to remove Civil Service Commissioners and the First Commissioner from office be exercisable only after the Minister has complied with prescribed procedures and to provide a power to make regulations prescribing the procedure to be followed. We also recommend that the Government publish at least the outline of the procedure that it envisages should be followed before removal of Civil Service Commissioners and the First Commissioner.

(b) Complaints about breaches of the Codes of Conduct by civil servants

1.56 The Bill provides for civil servants to complain to the Civil Service Commission about breaches of the codes of conduct for the civil service and for the diplomatic service.[63] The procedures for the making of such complaints and for the investigation and consideration of them by the Commission are not specified by the Bill, but are left to the Commission itself to determine.[64] After considering a complaint, the Commission may make recommendations about how the matter should be resolved.[65]

1.57 The Government's view is that the consideration of breaches of the codes of conduct by the Commission does not engage the right to a fair hearing and access to a court in Article 6(1) ECHR for two reasons. First, it does not involve the determination of a "civil right" within the meaning of that Article, because "the Codes will set out the standards of behaviour expected of civil servants based on the core values of the Civil Service rather than create any civil rights."[66] Second, the Commission's role after consideration of a complaint is limited to making recommendations, which in practice are likely to be made confidentially to the department and civil servants concerned, so there will be no effect on the civil servant's reputation. In the Government's view, the Commission's role is therefore not likely to be considered as being "determinative" of any civil rights even if such rights were in play.[67] It says that the position under the Bill is the same as in Fayed v UK, in which the European Court of Human Rights held that a report by two Government inspectors appointed to investigate the affairs of a company did not engage Article 6(1) even though it made findings that certain individuals had misrepresented their origins, wealth and business resources, because the report did not determine the individuals' civil right to a good reputation.[68]

1.58 Even if the Commission's consideration of breaches of the codes constituted the determination of a civil right within Article 6(1) ECHR, in the Government's view the requirements of that Article would be satisfied anyway, because of the combination of the procedures which the Commission will determine for the investigation and consideration of complaints, and the fact that the act of the Commission in making a recommendation would be amenable to judicial review.[69]

1.59 We have carefully scrutinised the Government's analysis of the Article 6(1) compatibility of the provisions in the Bill concerning complaints about breaches of the codes of conduct, as set out in both the Explanatory Notes to the Bill and the Minister's answers to our questions, but we do not find it entirely convincing, for three reasons.

1.60 First, while the Government is probably correct to say that the codes of conduct themselves do not create any civil rights, this does not mean to say that the investigation and consideration of a complaint about a breach of the codes is not capable of determining a civil right. A complaint about a breach of the code by a civil servant may involve an allegation of such serious misconduct that an adverse determination by the Commission will have serious consequences for that individual's reputation with his civil service employer and inevitably affect their employment status or future prospects, together with the financial consequences that this entails. In our view it is artificial to suppose that in such a case an adverse determination of a complaint by the Commission does not affect the individual's civil rights. We think that the better view is that the Commission's investigation and consideration of at least some complaints are capable of affecting the civil servant's civil rights.

1.61 Second, we consider that the Government's argument that there is no "determination" of any civil rights by the Commission, because the Commission can only make recommendations, is somewhat unrealistic in its appreciation of the serious detriment that could be suffered by the individual concerned. It is true that the Commission may only make recommendations "about how the matter should be resolved."[70] Prior to making any such recommendation, however, the Commission must "determine" the complaint: it must decide, in the light of its investigation, whether the individual complained against has acted in breach of the code of conduct. It is this decision, about whether the complaint that there has been a breach of the code has been made out, which in our view may well be, at least in some cases, determinative of the civil servant's civil rights. In the Fayed case, on which the Government relies, the object of the Inspectors' report was essentially investigative: the purpose of their inquiry was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities, e.g prosecuting, regulatory or disciplinary. The Commission's role under the Bill in relation to complaints about breaches of the codes, on the other hand, is not merely investigative: it is to investigate and consider whether there has been a breach of the code. In our view, the Commission's role is therefore to determine whether the code of conduct has been breached as alleged, and, at least in the case of serious breaches of the code, that would in practice be determinative of the civil servant's civil rights, whether or not the Commission's recommendation about how the matter should be resolved is followed. Indeed, the Government's acknowledgment of the fact that the Commission's recommendations would be amenable to judicial review could be said implicitly to concede this: it certainly sits uneasily with the argument that the Commission's role is not "determinative" of civil rights.[71]

1.62 Third, the Government's reliance on the combination of the procedures before the Commission and the possibility of judicial review is not in our view a satisfactory response for the same reason we have given above in relation to the removal of Commissioners from office: in the absence of any information about what those procedures will be, it is impossible for us to assess whether the combination of the two is sufficient to satisfy the requirements of Article 6(1) ECHR. The Government asserts that it does not consider it necessary for the procedures to be prescribed on the face of the Bill, but where it seeks to argue that Article 6(1) is satisfied by the combination of procedures before the Commission and the possibility of judicial review, it must be prepared at the very least to make public what those procedures are intended to be in order for its Article 6(1) claim to be assessed.

1.63 We acknowledge that there is not a clear cut answer to whether the Commission's consideration of breaches of the codes engages Article 6(1) ECHR. It may be that Article 6 applies in some cases but not in others, depending on the seriousness of the alleged breach. However, we note that the Government accepts that the procedures for the investigation and consideration of complaints by the Commission "must be fair".[72] As we have pointed out in previous reports, UK courts now accept that there is no substantive difference in content between the protection afforded by the common law of procedural fairness and that provided by Article 6(1) ECHR. We are puzzled therefore, in this as in other contexts, as to why the Government goes to such lengths to argue that Article 6(1) ECHR does not apply to decisions which it accepts must be taken in accordance with a procedure which is "fair." We recommend that the Government amend the Bill, either to prescribe the minimum content of the procedures for the investigation and consideration of complaints by the Commission, or to provide a power to make regulations prescribing such minimum procedural protections, in order to ensure that the civil servant who is the subject of a complaint about a breach of the code receives a fair hearing, including access to an independent and impartial court or tribunal.

(c) Complaints about selections for appointment to the Civil Service

1.64 The Bill also provides[73] for a person to complain to the Civil Service Commission if they have reason to believe that a selection for an appointment to the civil service breached the requirement[74] that selections be made on merit on the basis of a fair and open competition. As with the provision concerning complaints to the Commission about breaches of the codes, the Bill does not specify the procedures for the investigation and consideration of such complaints by the Commission: this is left to the Commission itself to determine.[75] After considering a complaint, the Commission may make recommendations about how the matter should be resolved.[76]

1.65 These provisions in the Bill also raise questions concerning their compatibility with the fundamental right to a fair hearing, whether at common law or under Article 6(1) ECHR. As far as Article 6(1) ECHR is concerned, the Government makes essentially the same arguments here as in relation to complaints about breaches of the codes. First, there is no "civil right" in play because "selections for appointment do not amount to a 'civil right'." Second, even if such rights were in play, there is no "determination" of them because the Commission's role is limited to making recommendations after considering the complaint.[77] And third, the requirements of Article 6(1) would be satisfied in any event by the combination of the procedures before the Commission and the possibility of judicial review of the Commission's decisions.[78]

1.66 We note that until fairly recently disputes relating to the recruitment, careers and termination of civil servants were as a general rule held to be outside the scope of Article 6(1) ECHR by the European Court of Human Rights. In the case of Vilho Eskelinen v Finland,[79] however, the Court departed from that approach, so that now the Strasbourg Court clearly starts from a presumption that Article 6(1) applies to the employment of civil servants. We asked the Government what account it had taken of the Vilho Eskelinen case and it replied that its argument that Article 6(1) ECHR does not apply to complaints about selection competitions is not based on the status of civil servants as such but on its view that the Commission does not determine any civil rights because it only has the power to make recommendations.

1.67 We accept that the Government's view about the applicability of Article 6(1) is not an argument that civil servants are excluded from the protection of Article 6(1) ECHR because of their status as civil servants, but is an argument about whether the Commission determines any civil rights when it considers complaints about the fairness and openness of competitions for appointments. However, we have difficulty seeing why, in the light of the Court's approach in Vilho Eskelinen, the presumption that Article 6(1) applies to disputes concerning the employment of civil servants does not apply to the mechanisms in the Bill for resolving disputes about selections through the Civil Service Commission. While we again acknowledge that the question of the applicability or otherwise of Article 6(1) ECHR is not straightforward, we are not entirely persuaded by the Government's reasons for it not applying. While there is clearly no "civil right" to be selected for appointment to the civil service, that does not mean to say that a decision that a selection for appointment has not been made on merit is not capable of affecting other civil rights, such as the job of the person who was appointed, or, in the case of the person not appointed, the right of access to employment or promotion through a fair and open competition. The effect of the Commission's decision on those other rights might be seriously detrimental, for example if the Commission considers that a particular appointment was not made on merit on the basis of a fair and open competition. It seems to us that, whether or not the Commission's recommendation about how the matter should be resolved is followed, its prior decision on the complaint is likely to be determinative of civil rights. It is certainly the kind of decision which engages the common law right to procedural fairness. We therefore recommend that the Government amend the Bill, either to prescribe the minimum content of the procedures for the investigation and consideration by the Commission of complaints about selection competitions, or to provide a power to make regulations prescribing such minimum procedural protections, in order to ensure that those involved in a dispute about the fairness and openness of a selection receive a fair hearing, including access to an independent and impartial court or tribunal.

(d) Removal, expulsion and suspension of members of the House of Lords

1.68 The Bill provides for the removal of members of the House of Lords if any of a number of specified conditions are met,[80] and enables the House of Lords to discipline its members through either expulsion or suspension.[81]

1.69 The Explanatory Notes to the Bill state that Article 6(1) ECHR does not apply because membership of the House of Lords does not constitute a civil right or obligation for the purposes of that Article.[82] The Government acknowledges that there may be financial loss associated with being removed from the House, such as no longer being able to claim expenses and allowances available to peers,[83] but the fact that a dispute has pecuniary consequences is not always sufficient to bring it within the scope of Article 6(1). In any event, the Government argues, even if expulsion or suspension of members engaged Article 6(1), the provisions would be compatible, because of the robust procedural safeguards which are accorded to members faced with such an extreme sanction:[84] investigation by a sub-committee of the Committee for Privileges, carried out under a Code of Conduct which expressly provides that "Members of the House have the right to safeguards as rigorous as those applied in the courts and professional disciplinary bodies", followed by a right of appeal to the Committee for Privileges, which includes four Lords of Appeal.

1.70 The Government's position that Article 6(1) ECHR does not apply to the removal, expulsion or suspension of a member of the House of Lords is probably correct as a matter of Convention case-law, which does not regard the right to engage in political activities as a "civil right".[85] However, members of the House of Lords have the common law right to be treated fairly. This was recently explicitly recognised and put into practice in the investigation by the Sub-Committee on Members' Interests into the allegations against four members alleged to have agreed to accept money in exchange for moving amendments to legislation.[86] There is nothing in the Bill to require such fair procedures, however. During the recent passage of the Parliamentary Standards Bill, the Government agreed to an amendment tabled in the House of Lords designed to ensure that the procedures to be laid down for the conduct of investigations by the Independent Parliamentary Standards Authority ("IPSA") must be "fair".[87]

1.71 We asked the Government what would be its view of an amendment to the Bill to make clear that the procedures for investigating allegations of misconduct must be fair to those being investigated. The Government replied that the procedures put in place by the House of Lords concerning the disciplining of its members is properly a matter for that House, and that specifying the procedure to be followed on the face of the legislation would interfere with the privilege of both Houses to set their own procedures. The Government pointed out that the provision in the Parliamentary Standards Bill requiring that procedures laid down for the conduct of investigations into MPs must be fair, concerned the procedures to be used by the Independent Parliamentary Standards Authority ("IPSA"), which is a statutory body, and therefore does not impinge on or affect the internal procedures of the Houses of Parliament. We accept this distinction and we note that the new House of Lords Code of Conduct expressly provides that "in investigating and adjudicating allegations of non-compliance with this Code, the Commissioner, the Sub-Committee on Lords' Interests and the Committee for Privileges shall act in accordance with the principles of natural justice and fairness."[88]

1.72 The provisions in the Bill concerning the removal, expulsion and suspension of members of the House of Lords raise a difficult issue about the relationship between common law fairness and parliamentary privilege. Members are entitled to be treated fairly, but the House of Lords is entitled to set its own procedure. We accept that the procedures adopted by the House of Lords in its new Code of Conduct satisfy the common law requirements of fairness.

(e) Removal of Comptroller and Auditor General and of Chair of National Audit Office

1.73 The Bill provides for the removal from office of both the Comptroller and Auditor General[89] and the chair of the National Audit Office[90] by HM the Queen on an Address of each House of Parliament.

1.74 In both cases the Government appears to accept that the right to a fair hearing in Article 6(1) ECHR, as well as the common law right to procedural fairness, would apply.[91] However, the Bill is silent on the procedure which should be used prior to such removal, and the Government says that in the event of either provision being used, Parliament would need to devise a procedure which offers appropriate safeguards to ensure that the removal from office is carried out fairly and in accordance with Article 6(1). Establishing the details of such a fair procedure, the Government argues, is properly a matter for Parliament.

1.75 We asked the Government why the Bill does not prescribe at least a minimum of procedural safeguards to ensure that the office holders receive a fair hearing and why there is no provision for a right of access to a court following removal. The Government replied that specifying what procedure the Houses should follow in making an address to Her Majesty risks breaching the privilege of Parliament to devise its own procedures. It accepts that "events preliminary to the giving of an address, whether in Parliament or outside it, might be covered by the protections of Article 6 and the common law right of procedural fairness", but it does not believe that it would be appropriate to prescribe a more detailed mechanism in the Bill. To the extent that these rights are engaged, the Government believes that they are sufficiently protected by the obligation for Parliament to adopt a procedure that is fair in the circumstances.

1.76 We accept that these provisions raise a difficult issue about the relationship between Article 6(1) ECHR and parliamentary privilege. The Government accepts that the power to remove these office holders engages Article 6(1) ECHR and that Parliament is under an obligation to adopt a procedure that is fair in the circumstances, but parliamentary privilege demands that it is for Parliament itself to devise those procedures. Where Article 6 applies there must also be a right of access to a court or tribunal to challenge removal, but this is also in tension with the traditionally recognised privileges of Parliament. There is nothing in the Human Rights Act to require Parliament to address these issues, but parliamentary privilege will not provide a sufficient defence to a challenge brought before the European Court of Human Rights in Strasbourg and we therefore recommend that the Leader of the House of Commons bring forward proposals which are Article 6(1) compliant and make provision for a right of access to a court or tribunal.

(4) TIME LIMITS FOR HUMAN RIGHTS ACTIONS AGAINST DEVOLVED ADMINISTRATIONS

1.77 The Bill inserts a one year time limit for bringing claims involving Convention rights against actions of Ministers in Wales and Departments or Ministers in Northern Ireland.[92] The Bill does not at present deal with Scotland because the Convention Rights Proceedings (Amendment) (Scotland) Bill has been passed by the Scottish Parliament and is awaiting Royal Assent, but the Government intends to re-enact those amendments to the Scotland Act when Royal Assent is given.

1.78 These provisions fill a gap in the devolution legislation as a result of which human rights claims could be brought against the devolved administrations without being subject to the one year time limit contained in the Human Rights Act, even though the grounds for the claim were identical to those which would have been time-barred under the Human Rights Act.[93] The time limit introduced is identical to that which already exists in the Human Rights Act.

1.79 The Explanatory Notes to the Bill state that the new time limit serves the legitimate aims of preventing stale claims, promoting legal certainty and providing consistency with the Human Rights Act, and is proportionate in view of the identical time limit that already exists under the Human Rights Act and the fact that courts and tribunals have the power to extend the one year period for such period as is equitable in all the circumstances.[94]

1.80 We accept the analysis of the compatibility of these provisions in the Explanatory Notes.

(5) NATIONALITY DISCRIMINATION IN CROWN EMPLOYMENT

1.81 The provisions in Part 1 of the Bill have been preceded by a long period of public and parliamentary debate about the desirability of comprehensive legislation for the Civil Service,[95] and are intended to implement the Government's proposal to "enshrine the core principles and values of the Civil Service in law."[96] As introduced, however, the Bill made no provision to deal with the widely recognised problem of nationality discrimination in the civil service, which derive from 300 year old restrictions on the employment of non-UK nationals in civil capacities under the Crown.

1.82 As the law currently stands, 95% of civil service posts in the UK are available to Commonwealth, Irish or EEA nationals but other non-UK nationals are almost entirely excluded from those posts, even if there is no good operational reason for that. As a result, many members of long-standing minority communities in the UK are entirely banned from Government employment, no matter how well qualified they are, and even if they are married to a UK national. The issue was recently the subject of a Private Members Bill, the Crown Employment (Nationality) Bill,[97] promoted by our Chair, designed to remove this nationality discrimination to the extent that it cannot be justified by the nature of the post, but the bill failed to complete report stage on 19 October 2009. A bill to similar effect has failed to reach the statute book on six previous occasions.

1.83 Such nationality discrimination in access to government employment engages a number of the UK's human rights obligations. By Article 6 of the International Covenant on Economic, Social and Cultural Rights, for example, the UK recognises the right to work, including the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and by Article 2 the UK has undertaken to guarantee the rights in the Covenant without discrimination of any kind as to national origin. The UN Committee on Economic and Social Rights[98] and the UN Committee for the Elimination of Racial Discrimination[99] have both commented on the continuing discrimination faced by ethnic minorities in employment in the UK.

1.84 The UK is also a party to an ILO Convention, the Discrimination (Employment and Occupation) Convention 1958,[100] which defines discrimination to include exclusion based on nationality,[101] and by which the UK has undertaken to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof,[102] and in particular has undertaken to pursue that policy in respect of employment under the direct control of a national authority.[103] On the face of it, it is difficult to see how the continuation of such a wide restriction on the employment of non-UK nationals in the civil service can be compatible with those binding undertakings.

1.85 On 3 November 2009, during the Bill's committee stage, the Government supported amendments to the Bill tabled by our Chair in terms similar to his Private Member's Bill. The Bill now therefore makes provision for the removal of existing nationality restrictions on Crown employment.[104] We welcome the Government's willingness to amend the Bill to address the longstanding problem of nationality discrimination in Crown employment, which enhances the protection of the human rights of non-nationals in the UK.

(6)THE MEANING OF "PUBLIC FUNCTION" IN THE HUMAN RIGHTS ACT

1.86 As we have pointed out in previous reports, the Government has committed itself to bringing forward legislation to fill the gap in the legal protection for human rights as a result of the decision of the House of Lords in the YL case, which adopts a very restrictive interpretation of when a private sector entity is performing a "public function". As a result of that decision, significant numbers of vulnerable users of public services do not enjoy the protections of the Human Rights Act when their service is provided by a private entity. When we have pressed Ministers about the Government's inaction on this important issue, they have told us that the Government intends to consult on the issue as part of its wider consultation on a "Bill of Rights and Responsibilities". However, the issue barely features in the Government's Green Paper on that subject, nor is it part of the Government's ongoing consultation on a Bill of Rights, nor is there any provision in this Bill. When we asked the Government about when it proposes to fulfil its commitment to fill the gap in the legal protection of human rights left by YL if the opportunity is not taken to do so in this Bill, the Government's response, yet again, was that it "remains firmly committed to consulting on this issue."

1.87 In our recent report Any of our business? Human Rights and the UK private sector we took stock of this issue and concluded that the Government's delay in addressing this important gap in protection is unacceptable.[105] We were not persuaded that any further public consultation was necessary and we called on the Government to bring forward a legislative solution as soon as possible, pointing out that an interpretative provision could still be inserted into this Bill.[106]

1.88 In view of the Government's seeming paralysis on this issue, we recommend an amendment to this Bill which would close the gap in human rights protection for the users of public services delivered by private providers, by inserting an interpretative provision clarifying the meaning of "public function" in s. 6 of the Human Right Act 1998. We emphasise that the purpose of this amendment is purely to restore the broader scope of the Act's protections which we believe was originally intended by Parliament when it enacted the Human Rights Act in 1998. The following amendment is designed to give effect to this recommendation:

Page 20, line 19, insert new clause:

Factors to be taken into account when determining whether a body is a public authority

(1) For the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (c.42) (acts of public authorities), the factors which may be taken into account in determining whether a function is a function of a public nature include:

  the extent to which the state has assumed responsibility for the function in question

b)  the role and responsibility of the State in relation to the subject matter in question

c)  the nature and extent of the public interest in the function in question

d)   the nature and extent of any statutory power or duty in relation to the function in question

e)   the extent to which the state, directly or indirectly, regulates, supervises and inspects the performance of the function in question

f)  the extent to which the state makes payment for the function in question

g)  whether the function involves or may involve the use of statutory coercive powers

h)  the extent of the risk that improper performance of the function might violate an individual's Convention right.

(2) For the avoidance of doubt, for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998, a function of a public nature includes a function which is required or enabled to be performed wholly or partially at public expense, irrespective of -

a)  the legal status of the person who performs the function, or

b)  whether the person performs the function by reasons of a contractual or other agreement or arrangement.

(7) THE INTELLIGENCE AND SECURITY COMMITTEE

1.89 In The Governance of Britain Green Paper, the Government acknowledged that there are concerns about the transparency of the process by which the Intelligence and Security Committee is appointed, operates and reports. The Government committed to considering how the ISC's arrangements could be amended to bring it as far as possible into line with select committees, while maintaining the confidentiality of information where genuinely necessary in the interests of national security.

1.90 In the Government's White Paper, The Governance of Britain - Constitutional Renewal, the Government said that it had concluded that it can make significant changes immediately to improve the transparency and effectiveness of the Committee's operation "in advance of any future legislation the Government brings forward."[107]

1.91 We note the changes that have been made to the way in which the members of the ISC are appointed but further proposals to improve the transparency of the ISC are absent from the Bill. We have recently expressed our concern about the adequacy of the parliamentary mechanisms for oversight of the intelligence and security services in the context of current allegations about the UK's complicity in torture.[108] The House of Commons Reform Committee has now recommended that the Chair of the ISC be elected by the House of Commons.[109]

1.92 In view of continuing serious concerns about the adequacy of the ISC as a parliamentary mechanism for ensuring the accountability of the intelligence and security services, we recommend that the Intelligence Services Act 1994 be amended to change the formal system of nomination to the ISC and the method of appointment of its Chair, in accordance with the reforms recommended by the House of Commons Reform Committee to the system of election of members and Chairs of House of Commons Select Committees. The following new clause is suggested to give effect to this recommendation:

Intelligence and Security Committee

The Intelligence Services Act 1994 (c.13) is amended as follows:

In section 10 omit subsection (3) and insert '(3) The members and Chairman of the Committee shall be elected in accordance with the system of election of members and Chairmen of the select committees of the House of Commons.'

(8) ROYAL MARRIAGES AND SUCCESSION TO THE CROWN

1.93 Two amendments to the Bill tabled by a member of this Committee, Dr. Evan Harris MP, would remove religious discrimination against Catholics in relation to royal marriages[110] and discrimination against women in relation to the succession to the throne.[111]

1.94 During the second reading debate on Dr. Harris's Private Member's Bill, the Royal Marriages and Succession to the Crown (Prevention of Discrimination) Bill, on 27 March 2009, the Secretary of State for Justice accepted that the current law is unjustifiably discriminatory against women and Catholics and indicated that the matter would now be given "a higher priority" as a result of the Private Member's Bill. However, the Government opposed the Bill on the basis that the matter was complex, would require consultation with Commonwealth Governments and requires more careful thinking about the implications for the position of the Church of England as the established church. The Prime Minister subsequently gave a similar indication.[112]

1.95 We asked the Government what it had done since 27 March 2009 to fulfil its commitment that it would now give "a higher priority" to ending the current discrimination against Catholics in royal marriages and against women in succession to the throne, and to indicate its proposed timetable for removing that discrimination. In response the Government said that it has continued to explore the issues which would be raised by such a change in the law, but it is not possible to specify a precise timetable because resolution of this issue does not depend on the UK Government alone: the other Commonwealth Governments have an equal right of consideration. Discussions with those other Governments are said to be continuing.

1.96 We note that the amendments provide for the changes only to be brought into force when consultations with Commonwealth Governments have been carried out.

1.97 We consider the amendments concerning royal marriages and succession to the Crown to be human rights enhancing measures. Discrimination against Catholics in the law of marriage is contrary to Article 14 ECHR in conjunction with Article 12 and also arguably contrary to the freedom of religion of Catholics protected by Article 9 ECHR. Male primogeniture in the law of inheritance generally is in our view arguably contrary to Article 14 ECHR in conjunction with Article 1 Protocol 1.[113] On the basis of human rights principles, we recommend that the Government agree to the amendments tabled by Dr. Harris on these issues.


1   Cm 7170. Back

2   HC Deb 3 July 2007. Back

3   Joint Committee on the Draft Constitutional Renewal Bill: Report 2007-08, HL Paper 166, HC 551. Back

4   Some changes to the way in which the Intelligence and Security Committee is appointed have been made by Standing Order, but the Government's proposals originally envisaged more far-reaching reforms. Back

5   Bill 4-EN, paras 460-509. Back

6   Schedule 5, inserting Sections 14ZB(3) and 14ZC1)(b) into the Public Order Act 1986.Schedule 5 includes a new provision which effectively applies the provisions on public assemblies and processions around Parliament to any building outside of the Palace of Westminster which is used to hold meetings of the House or any of its Committees ("a specified building"). Back

7   The Governance of Britain: Constitutional Renewal, March 2008, CM 7342-I, Clause 1. Back

8   Ibid, para. 29. Back

9   Paras. 23-24. Back

10   Para. 35. Back

11   Para. 37. Back

12   Para. 72. Back

13   Seventh Report of Session 2008-09, Demonstrating Respect for Rights? A Human Rights Approach to policing Protest, HL Paper 47-I, HC 320-I; Twenty-Second Report of Session 2008-09, Demonstrating Respect for Rights? Follow Up, HL Paper 141, HC 522; Tenth Report of Session 2008-09, Legislative Scrutiny: Policing and Crime Bill, HL Paper 68, HC 395. Back

14   HC, 20 October 2009, col 809. Back

15   Schedule 5, inserting Sections 14ZA(2) and 14ZC(4) into the Public Order Act 1986. Back

16   Letter from the Chair of the Committee to Rt Hon Jack Straw MP, Secretary of State for Justice and Lord Chancellor, dated 27 October 2009. Back

17   Letter to the Chair of the Committee from Rt Hon Michael Wills MP, dated 17 November 2009 Back

18   See footnote 16. Back

19   See footnote 17. Back

20   See footnote 17. Back

21   Adapting to Protest - Nurturing the British Model of Policing, November 2009, p. 6. Back

22   Schedule 5, inserting Sections 14ZA(3) and 14ZC(5) into the Public Order Act 1986. Back

23   See footnote 17. Back

24   See footnote 17. Back

25   See footnote 17. Back

26   Ministry of Justice, Memorandum Concerning the Delegated Powers in the Bill for the Delegated Powers and Regulatory Reform Committee, July 2009, para. 26. Back

27   Ibid., para. 26. Back

28   Ibid., para. 27. Back

29   Schedule 5, inserting Sections 14ZA(5) and 14ZC(8) into the Public Order Act 1986. Back

30   See footnote 17. Back

31   Schedule 5, inserting Section 14ZA(7) into the Public Order Act 1986. Back

32   Schedule 5, inserting Section 14ZA(8) into the Public Order Act 1986. Back

33   EN, para. 483. Back

34   EN, para. 486. Back

35   See footnote 17. Back

36   See footnote 17. Back

37   Clauses 24-28. Back

38   Clause 24. Back

39   Clause 25. Back

40   Clause 26. Back

41   First Report of 2004-05, The Fourteenth Protocol to the European Convention on Human Rights, paras 5-7. Back

42   For the various ways in which international human rights treaties may become relevant in legal proceedings even before they are incorporated into domestic law by statute, see Lord Bingham's maiden speech in the House of Lords HL Deb 3 July 1996 col 1465. Back

43   First Report of 2004-05 (above); Nineteenth Report of 2005-06, The Work of the Committee in the 2001-2005 Parliament, HL 112/HC552. Back

44   Eighth Report of 2005-06, Government Responses to Reports from the Committee in the last Parliament, HL 104/HC 850, Appendix 2 - Government Response to the Committee's First Report of 2004-05, on Protocol No. 14 to the European Convention on Human Rights, para. 5. Back

45   Twenty-third Report of 2005-06, The Committee's Future Working Practices, HL 239/HC 1575, at para. 68. Back

46   First Report of 2008-09, The UN Convention on the Rights of Persons with Disabilities, HL 9/HC 93; Twelfth Report of 2008-09, The UN Convention on the Rights of Persons with Disabilities: Reservations and Interpretative Declaration, HL 70/HC 397. Back

47   First Report of 2006-07, The Council of Europe Convention on the Prevention of Terrorism, HL 26/HC 247. Back

48   Thirteenth Report of 2008-09, Prisoner Transfer Treaty with Libya, HL 71/HC 398. Back

49   First Report of 2008-09 (above) at para. 11. Back

50   House of Lords debate, 28 April 2009 Back

51   Clause 24(1)(a). Back

52   Al-Megrahi's case was the first to be considered under the terms of the Prisoner Transfer Treaty, but in the event he was transferred to Libya by the Scottish Executive not under the treaty but pursuant to the Justice Minster's powers of compassionate release. Back

53   Public Administration Select Committee, Tenth Report of Session 2007-08, Constitutional Renewal: Draft Bill and White Paper, (HC 499) , para 87. Back

54   Golder v UK (1975) 1 EHRR 524 (a right of access to a court is inherent in the object and purpose of Article 6(1) ECHR). Back

55   Schedule 1, para. 5(3). Back

56   Ibid., para. 5(4)(a)-(d). Back

57   Ibid., para. 5(4)(d). Back

58   EN para. 463. Back

59   Ibid.. Back

60   Constitutional Reform Act 2005 s. 108(1). Back

61   Ibid., s. 115. Back

62   SI 2006/676. Back

63   Clause 9(2) and (3).A civil servant may complain to the Commission if they have reason to believe that they are being, or have been, required to act in a way that conflicts with the relevant code of conduct, or that another civil servant is acting, or has acted, in a way that conflicts with the code. Back

64   Clause 9(5)(a). Back

65   Clause 9(5)(b). Back

66   EN para. 466. Back

67   EN para. 467. Back

68   Fayed v UK (1994) 18 EHRR 393 at paras 61-62. Back

69   EN para. 468. Back

70   Clause 9(5)(b). Back

71   In the Fayed case the UK Government argued that the applicants had failed to exhaust their domestic remedies because they had not applied for judicial review of the inspectors' report, but the Court rejected this argument on the basis that judicial review would not have ensured access to a court for determination of the truth of the statements made about the applicants' in the Inspectors' Report: (1994) 18 EHRR 393 at para. 53. Back

72   Letter from Michael Wills MP dated 17 November 2009, p. 48 Back

73   Clause 13(2) and (3). Back

74   In clause 10(2). Back

75   Clause 13(3)(b). Back

76   Clause 13(3)(c). Back

77   EN para. 469. Back

78   EN para. 470. Back

79   (2007) 45 EHRR 43. Back

80   Clause 30 and Schedule 4, Part 1. Back

81   Clause 31. Back

82   EN paras 476 and 479. Back

83   EN para. 477. Back

84   EN para. 480. Back

85   See e.g. Pierre-Bloch v France (1997) 26 EHRR 202 (Article 6(1) held not to apply to a member of the National Assembly who had been made to forfeit his seat and disqualified from standing for election for a year for having exceeded election expenses limit). Back

86   See Second Report from the Committee for Privileges 2008-09, Annex at paras 11-27 (describing the procedural safeguards accorded to those being investigated). Back

87   HL Deb 20 July 2009 cols 1439-41. Back

88   Leader's Group on the Code of Conduct, Report, HL 171, Part 2, para. 19. Back

89   Clause 46(2). Back

90   Schedule 7, para. 10(1). Back

91   EN paras 504 and 508. Back

92   Clauses 33 and 34. Back

93   The gap arises as a result of the decision of the House of Lords in Somerville v Scottish Ministers [2007] UKHL 44. Back

94   EN para. 464. Back

95   See e.g. the draft Civil Service Bill published by the House of Commons Public Administration Select Committee in 2003; the Government's consultation paper on a draft Civil Service Bill in 2004 (Cm 6373); and the report of the Public Administration Committee on the draft Constitutional Renewal Bill (Tenth Report of 2007-08, HC 499). Back

96   As stated in The Governance of Britain Green Paper. Back

97   HC Bill 141 08-09. Back

98   See e.g. UNCESCR Concluding Observations 2002 at para. 14. Back

99   See e.g. UNCERD Concluding Observations 2003 at para. 23 (CERD/63/CO/11). Back

100   ILO Convention C111, 363 UNTS 31. Back

101   Article 1(1)(a). Back

102   Article 2. Back

103   Article 3. Back

104   Clauses 21-23. Back

105   First Report of 2009-10, HL 5-I/HC 64-I, at paras 132-150. Back

106   Ibid at paras 149-50. Back

107   Cm 7342-I (March 2008) at para. 236. Back

108   Twenty-third Report of Session 2008-09, Allegations of UK Complicity in Torture, HL Paper 152/HC 230, paras 57-66. Back

109   First Report of Session 2008-09, Rebuilding the House, HC1117 paras 57-59. Back

110   NC48. Back

111   NC49. Back

112   HC Deb 25 November 2009 col 532 ("The Act of Settlement is outdated, and I think that most people recognise the need for change"). Back

113   In 2004 the Constitutional Court of South Africa declared the customary law rule of male primogeniture to be in breach of the South African Constitution, because it discriminated unfairly against women and illegitimate children on grounds of gender and birth: Bhe v Magistrate Khayelitsha and others (2005) 1 BCLR 1 (CC). Back


 
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