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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