Select Committee on Delegated Powers and Deregulation Sixth Report


HUMAN RIGHTS BILL [HL]

Memorandum by the Home Office, Lord Chancellor's Department,
Northern Ireland Office and Scottish Office


1.    This memorandum is provided jointly by the Home Office, Lord Chancellor's Department, Northern Ireland Office and Scottish Office. It identifies those provisions of the Human Rights Bill which confer power to make delegated legislation and explains the purpose of the power, the reason why the matter is to be dealt with by delegated legislation, and the nature of and reason for the procedure selected.

Clause 1: Power to amend the Act to reflect the effect of a protocol

2.    The Bill gives further effect to those Articles of the European Convention on Human Rights and of the First Protocol to the Convention which confer substantive rights. The relevant Articles, referred to in the Bill as "the Convention rights", are specified in clause 1(1) and are set out in Schedule 1.

3.    In the event that the United Kingdom ratifies any other Protocol to the Convention for which further effect in domestic law is appropriate, section 1 and Schedule 1 will require amendment in order for the rights set out in the new Protocol to be given the same status in United Kingdom law as the articles of the Convention and of the First Protocol specified in subsection (1).

4.    Subsection (4) therefore confers power on the Secretary of State to make such amendments to section 1 or to Schedule 1 as he considers appropriate to reflect the effect of a protocol. The order-making power, like all such powers conferred by the Act, is exercisable by statutory instrument (clause 20(1)). "Protocol" is defined in subsection (5) as a protocol which the United Kingdom has ratified, or one which the United Kingdom has signed with a view to ratification. Subsection (6) provides that any amendment made under such an order may not come into force before the relevant protocol is itself in force in relation to the United Kingdom. But the effect of subsections (5) and (6) will be to enable UK law to be amended with effect from when the United Kingdom's obligations under international law are enlarged.

5.    Given the significance of adding new substantive rights to the Convention rights given effect in United Kingdom law, any order made under subsection (4) is to be subject to the draft affirmative resolution procedure and clause 20(3) provides accordingly.

Clauses 10 and 11: Power to make a remedial order to remove an incompatibility with the Convention rights

6.    The Bill requires legislation to be interpreted so far as possible in a way which is compatible with the Convention rights (clause 3(1)). Where a consistent interpretation is not possible, clause 4 allows the higher courts to declare that the provision in question is incompatible with the Convention rights. Such a declaration is referred to as a declaration of incompatibility (clause 21(1)).

7.    Where such a declaration is made by a court in the United Kingdom, or where domestic legislation is considered incompatible in the light a finding of the European Court of Human Rights, it is important that the Government of the day and Parliament should be able to respond quickly in order to remove the incompatibility. Pressure on the legislative programme may mean that there would be an excessive delay before an opportunity could be found to bring forward primary legislation to remedy the defect.

8.    Accordingly power to amend incompatible legislation by way of order is available in these circumstances under clause 10. Such an order is to be known as a remedial order (clause 11(1)). Subsection (2) of clause 10 confers power on a Minister of the Crown to amend legislation in order to remove an incompatibility with one or more of the Convention rights. If the legislation concerned is an Order in Council, the power is exercisable by Her Majesty in Council (subsection (3)). Where the incompatibility with the Convention rights arises in respect of a provision of subordinate legislation, subsection (4) confers power to amend the primary legislation under which the instrument was made. The Minister concerned must consider that it is necessary to do so in order to enable the incompatibility to be removed and that it is appropriate to do so using the power conferred by the subsection. Primary and subordinate legislation have the meaning set out in clause 21.

9.    Clause 11 makes further provision with regard to remedial orders. The power to amend primary legislation will extend to the provisions which contravene the Convention, or appear to do so, together with any consequential, supplemental or transitional amendments. Although a remedial order may have retrospective effect, the Bill provides that no one shall be guilty of an offence as a result of the retrospective effect of such an order (subsection (3)).

10.  The power to make a remedial order will not apply so as to allow Ministers to fill gaps in the law should an absence of provision be considered incompatible with the Convention rights.

Clause 12: Procedure in respect of remedial orders

11.  Clause 12 makes provision for the Parliamentary procedure to be followed with regard to remedial orders.

12.  In "non-urgent" cases, a remedial order will be subject to the draft affirmative resolution procedure (clause 12(1)(a)), in keeping with the significance of making amendments to primary legislation by way of a subordinate instrument.

13.  In some cases, however, there may be an urgent need to remove the incompatibility, which would be frustrated if the draft affirmative resolution procedure were invariably to apply (for example, if the need to make the amendment arose in a Parliamentary recess). The Bill therefore provides that in urgent cases the order may be made without first being approved in draft. It must appear to the Minister making the order or to Her Majesty in Council that because of the urgency of the matter it is necessary to make the order without a draft first being approved (subsection (1)(b)).

14.  Where a remedial order is made without first being approved in draft, it must be laid before Parliament after it is made (subsection (2)(a)). The order will cease to have effect if it has not been approved by resolution of each House by the end of the period of forty days starting with the day on which it was made (subsection (2)(b)). In calculating the forty day period, no account is to be taken of any time when Parliament is dissolved or prorogued, or when both Houses are adjourned for more than four days (subsection (4)). If an order ceases to have effect because it is not approved within the period for consideration, that does not affect anything done under it or the power to make another remedial order.

15.  Sections 60(2) and (3) of the Northern Ireland (Emergency Provisions) Act 1996 (c.22) offer a precedent for the procedure proposed in urgent cases.

Clause 14: Power to designate a derogation for the purposes of the Act

16.  Article 15 of the Convention allows a state to derogate from certain Articles of the Convention in time of war or other public emergency threatening the life of the nation. The Bill provides in clause 1(2) that the Convention rights are to have effect subject to any designated derogation.

17.  The United Kingdom currently has one derogation in place, in respect of Article 5(3). The derogation, the text of which is set out in Schedule 2, is a "designated derogation" by virtue of clause 14(1)(a). The Bill also needs to cater for the possibility that the United Kingdom will enter a new derogation and so clause 14(1)(b) gives the Secretary of State power to designate for the purposes of the Act any derogation made by the United Kingdom from an Article of the Convention or of any protocol.

Procedure in respect of designation orders made under clause 14(1)(b)

18.  The Parliamentary procedure applied to an order made under subsection (1)(b) is set out in subsections (3) to (6) of clause 16. Any order under subsection (1)(b) of clause 14 will cease to have effect if not approved by each House of Parliament before the end of the period for consideration. The period for consideration is calculated in the same manner as in the case of the procedure applied to urgent remedial orders (subsections (5) and (6) of clause 16). In view of the urgent need to make a derogation, it would not be practicable to provide for Parliamentary approval before the derogation order can be made. Derogations, because of a combination of their significance and of the circumstances in which they arise, are to be time-limited under the Bill. A designated derogation will accordingly expire five years after it takes effect in domestic law (if not withdrawn before then) unless both Houses agree that that period should be extended for a further five years by order (see further paragraphs 21-22 below).

Clause 14: Power to amend Schedule 2 to reflect the effect of a designation order or of a designated derogation ceasing to be such by virtue of clause 14(3)

19.  Where the Secretary of State exercises his power to designate a derogation under clause 14(1)(b), consequential amendments will be needed to Schedule 2. Amendments to that Schedule will also be needed should a designated derogation be amended or replaced, since in those circumstances it will cease to be a designated derogation for the purposes of the Act (clause 14(3)).

20.  Accordingly subsection (5) of clause 14 requires the Secretary of State to make such amendments to Schedule 2 as he considers appropriate to reflect any order under subsection (1)(b) or the effect of subsection (3). Where a new derogation is designated, Parliamentary scrutiny will focus on the designation order itself as explained at paragraph 18 above. Given that close scrutiny, it is considered adequate that the essentially consequential provision which would be contained in an order under subsection (5) should simply be laid before Parliament (clause 20(2)).

Clause 16: Power to extend period for which designated derogations have effect

21.  As noted above, the underlying policy with regard to the effect derogations are to have in domestic law is that, given the essentially temporary nature of any derogation, it should be time-limited in effect and should not remain in force without good reason. Clause 16 therefore provides that a designated derogation will, if not withdrawn before then, cease to have effect five years after it takes effect for the purposes of the Bill unless extended by order for a further five years before the end of that period.

22.  Clause 16(2) gives the Secretary of State power to extend by order the period for which a designated derogation has effect for a further period of five years. Any order made under subsection (2)(b) will be subject to the draft affirmative resolution procedure (clause 20(3)).

23.  Where a designated derogation is withdrawn, consequential amendments will be needed to the Act to reflect that withdrawal. Clause 16(7) therefore requires the Secretary of State to make such amendments to the Act as are required to reflect the withdrawal of a designated derogation. An order under subsection (7) of clause 16 is required to be laid before Parliament (clause 20(2)). This is considered an appropriate degree of Parliamentary control for an order making such consequential changes.

Clause 15: Reservations

24.  Article 64 of the Convention allows a state, when ratifying the Convention, to enter a reservation to a provision of the Convention modifying its legal obligations to the extent provided for in the reservation. The United Kingdom currently has a reservation in place in respect of Article 2 of the First Protocol and clause 15(1)(a) makes that reservation a "designated reservation" for the purposes of the Bill. Under clause 1, Article 2 of the First Protocol has effect under the Bill subject to any designated reservation. There is power for the Secretary of State to designate by order any other reservation which may be entered by the United Kingdom (clause 15(1)(b)).

25.  An order under clause 15(1)(b) designating a reservation is to be laid before Parliament (clause 20(2)). Since any new reservation would go hand in hand with ratification of a protocol, Parliament would be asked to approve under the draft affirmative resolution procedure the addition of any new Article in relation to which a reservation had been entered. If approval was forthcoming it would be given in the knowledge of the reservation itself and of the order designating it for the purposes of the Act.

26.  As where a designated derogation is amended or replaced, the addition or removal of a designated reservation will necessitate amendments to Schedule 2. Accordingly subsection (5) requires the Secretary of State to make such amendments to Schedule 2 as he considers appropriate to reflect any order under subsection (1)(b) or the effect of subsection (3).

27.  As with an order made under clause 14(5) or clause 16(7), a requirement to lay any such order before Parliament is considered adequate for an order making such consequential changes (clause 20(2)).

Clause 18: Appointment of judges to the European Court of Human Rights

28.  Clause 18 makes provision so as to allow a holder of one of the judicial offices set out in subsection (1) to become a judge of the European Court of Human Rights without relinquishing his office.

29.  Should a holder of a relevant judicial office serve as a judge of the Court, special provision will need to be made with respect to his UK judicial pension rights. (The Council of Europe will not be making any specific provision for occupational pension rights of judges of the Court of Human Rights). It is considered that matters of detail in relation to the pension of the individual concerned can appropriately be dealt with by way of subordinate legislation. Accordingly subsection (6)(a) of clause 18 provides power for the Lord Chancellor or Secretary of State to make such provision as he considers appropriate with respect to pensions payable to any holder of a judicial office who serves as a judge of the European Court of Human Rights.

30.  By virtue of subsection (4) of clause 18, a holder of a UK judicial office who serves as a judge of the Court does not, during his period of service, count towards any statutory maximum number there may be of such judges. However, on completion of his service as a judge of the Court, transitional provision may need to be made, among other things to allow a statutory maximum to be temporarily exceeded. Subsection (6)(b) therefore provides power to make such transitional provision as is considered appropriate in relation to any holder of judicial office who has completed his service as a judge of the Court.

31.  Detailed provision of this kind seems suitable for inclusion in secondary legislation, subject to the negative resolution procedure (clause 20(4[3])).

Rules of court and other procedural rules

32.  A number of provisions in the Bill make clear that provision may be made in rules of court for various procedural and/or evidential matters relating to the effect of allowing Convention rights to be enforced in the domestic courts, or provide that rules may be made for the purposes of the relevant section itself. These provisions are set out below. Where the provision simply makes clear that provision may be included in rules of court (that term having the meaning set out in Schedule 1 to the Interpretation Act 1978 (c.30)), the exercise of the power to make such rules will be subject to the procedure prescribed by the relevant enabling legislation. It is not considered that the matters which this Bill makes clear may be dealt with by way of rules of court necessitate any alteration to those existing procedures.

Clause 2: Power to make provision in rules as to the manner in which evidence is to be given in court or tribunal proceedings of judgments and decisions required to be taken into account by subsection (1)

33.  Subsection (1) of clause 2 requires any court or tribunal interpreting a Convention right to take into account, so far as relevant, judgments and decisions of the European Court and Commission of Human Rights, and of the Committee of Ministers, as detailed in paragraphs (a) to (d) of that subsection.

34.  Subsection (2) provides that evidence of those judgments and decisions is to be given in such manner as may be provided in rules. The subsection, when read with subsection (3), makes clear that existing powers to make rules of court may be used so as to make provision of this nature.

35.  Subsection (3) also confers power to make rules for the purposes of section 2 in respect of proceedings before tribunals. The power to make such rules is to be exercisable by the Lord Advocate or the Secretary of State in relation to tribunal proceedings in Scotland, and by the Lord Chancellor or Secretary of State in relation to tribunal proceedings elsewhere in the United Kingdom. Where it is proposed to make any such rules affecting a tribunal specified in Schedule 1 to the Tribunals and Inquiries Act 1992, section 8 of that Act will operate so as to require prior consultation with the Council on Tribunals. Where the tribunal is one specified in Part II of that Schedule the Council will be required to consult the Scottish Committee.

36.  It is the Government's intention to bring forward an amendment to provide that any rules made for the purposes of section 2 in respect of proceedings before tribunals should be made by statutory instrument and should be subject to the negative resolution procedure.

Clause 5: Power to make provision in rules of court regarding the Crown's right to intervene under clause 5(1)

37.  Clause 5 makes clear that provision may be made in rules of court as to various matters of procedural detail relating to the Crown's right to intervene in cases where a court is considering whether to make a declaration of incompatibility.

38.  Subsection (1) makes clear that rules of court may make provision as to the giving of notice to the Crown, and subsection (2) makes clear that such rules may deal with the making of an application by the Crown to be joined as a party to the proceedings.

Clause 7(2): Power to make provision in rules as to the appropriate court or tribunal in which proceedings may be brought under clause 7(1)(a)

39.  Clause 7(1) provides that a victim of an act made unlawful by section 6(1) may bring proceedings under the Act against the public authority concerned in the appropriate court or tribunal, meaning such court or tribunal as is determined in accordance with rules.

40.  Subsection (8) makes clear that such provision may be made by way of rules of court, or by way of rules made for the purposes of the section itself by the Lord Advocate, the Lord Chancellor or the Secretary of State as set out in paragraphs (a) to (c). Where rules are made for the purposes of the section in relation to proceedings before a tribunal, section 8 of the Tribunals and Inquiries Act will apply as discussed at paragraph 35 above.

41.  Subsection (8) further provides that "rules" for the purposes of the section includes provision made by order under section 1 of the Courts and Legal Services Act 1990 (c.41). That section gives the Lord Chancellor power to make provision by order allocating jurisdiction between the High Court and county courts, following consultation as required by section 1(9) of that Act. Such an order is subject to the negative resolution procedure (section 120 of the 1990 Act as amended by the Civil Procedure Act 1997 (section 10 and Schedule 2, paragraph 4)).

42.  The Government intends to bring forward an amendment, in line with that indicated at paragraph 36 above, to require any rules made for the purposes of section 7 in relation to proceedings before a court or tribunal to be made by way of statutory instrument, subject to the negative resolution procedure.

31 October 1997


3   Clause 20(4) should refer to "section 18(6)" rather than to "section 18(5)". The Government will bring forward an amendment in Committee to correct this error. Back


 
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