JOINT COMMITTEE ON HUMAN RIGHTS
Memorandum to the Liaison Committee
1. The terms of reference given to the Joint
Committee on Human Rights (JCHR) by Standing Order 152B are wide.
They are to consider "matters relating to human rights in
the United Kingdom (but excluding consideration of individual
cases)" and to examine proposals for "remedial orders"
to be made under the Human Rights Act.
2. The JCHR has a number of special characteristics
which distinguish it from the majority of committees represented
on the Liaison Committee. First, and most obviously, it is a permanent
Joint Committee of the two Houses. Although there are plentiful
precedents for joint committees, the JCHR is the first to have
such wide-ranging terms of reference. It has a cross-cutting remit,
not tied to a specific area of government activity nor to a specific
set of ministerial responsibilities nor, as yet, to any specific
extra-parliamentary institutions or associated public bodies.
It is unusual for a Joint Committee in having a Commons Chairman.
Second, it is relatively new. It was established only in the last
Parliament, and had its first meeting on 31st January 2001. It
was therefore less than a year old at the time this memorandum
was composed, and that year saw a hiatus caused by a general election.
On the Commons side, all but one of the members (the Chairman,
Jean Corston) changed after the election. Third, it was set up
in the specific circumstances of the Human Rights Act, with a
set of specific expectations attached to its rôle by outside
3. These factors combine to mean that the Committee's
method of working and approach to its remit are still evolving,
and are likely to develop further over the coming year. However,
we have made some key decisions on our objectives and priorities
which are set out below, and we have already produced a significant
number of reports.
4. The analysis of our work is divided into the
- Scrutiny of Bills
- Scrutiny of delegated legislation
- Scrutiny of remedial orders
- Policy-based or "thematic" inquiries
Scrutiny of Bills
5. Under section 19 of the Human Rights Act (HRA),
every Government Bill is required, on publication, to be prefaced
by a statement from the responsible Minister as to whether, in
his or her opinion, the provisions of the Bill are compatible
with Convention rights, as defined in the Act. The JCHR considers
itself to be responsible to Parliament for assessing whether these
"section 19 statements" have been properly made (a question
much discussed during the passage of the Human Rights Bill), and
believes this to be is its key duty. Accordingly, the Committee
in the last Parliament announced that it would make scrutiny of
primary legislation for its compatibility with Convention rights
its first priority. The present Committee has reaffirmed this
decision, and this work has formed the bulk of our published output
so far. In this Session we have produced seven reports
on Government Bills before both Houses, giving our assessment
of their compliance with Convention rights within the meaning
of the Human Rights Act 1998 and in relation to other human rights
instruments. The methodology of our approach has begun to take
definite shape. The general principles are
(a) We have decided that every Government
Bill will be examined at as early a stage as possible to establish
whether significant questions of human rights appear to be raised
by any of its provisions.
(b) Where such questions appear to arise,
written ministerial responses to specific enquiries from the Committee
will be sought.
(c) Where it seems appropriate, written commentary
from non-governmental sources on these questions will be sought
at the same time (this is an area of our work which we are keen
(d) Ministerial and other responses will
be considered, pursued and published alongside any report of the
Committee's opinion. On occasions, it will appear to us that the
urgency of the matter may require us to report before ministerial
responses have been received.
(e) Oral evidence will only be taken in exceptional
6. The most significant Bill considered by us
so far was, of course, the Anti-terrorism, Crime and Security
Bill. This was presented in the Commons on 14 November 2001 and
published the following day. We took oral evidence from the Home
Secretary on the evening of 16 November, and published our report
on 18 November, in time for the Bill's second reading in the Commons
on Monday 21 November. After it had completed its stages in the
Commons (at great speed), we considered how the Government had
responded to our criticisms and suggestions and published a further
report in time for the Report Stage of the Bill in the Lords.
7. Our reports were, we think it is safe to say,
influential on the course of debate, and the Government responded
to a number of our comments by proposing amendments to the Bill
in both Houses. We intend to return to the Act itself well before
the sunset clause relating to its most controversial provisions,
contained in Part 4, has effect. More generally, we hope to include
regular post-legislative reviews of all the Acts on which we raised
human rights questions during their passage through Parliament.
8. The Anti-terrorism, Crime and Security Bill
involved derogating from Convention rights in respect of certain
of the provisions of Part 4. We are concerned that the procedure
for such derogations may be in need of refinement, and we intend
to examine it at an early opportunity. We also consider it our
duty to hold the Government to account for the need to examine
very carefully whether the emergency which it believed gave rise
to the need for a derogation still persists. If it did not, the
continuance of the derogation would be contrary to the UK's international
Private Members' Bills
9. Our approach to this type of scrutiny has
been slightly modified for Private Members' Bills, which do not
have a section 19 statement, and whose sponsors are anyway likely
in most circumstances to be hard-pressed to answer questions from
this Committee about compatibility. The other factor we have to
take into account is how small a proportion of such Bills make
any significant progress, never mind reach the statute book. We
consider it appropriate that the resources devoted to them by
the JCHR should be proportionate to this reality.
10. Each Private Member's Bill will therefore
be examined by the Committee for compatibility questions, but
in allocating resources to this scrutiny, the staff have due regard
to the priority that needs to be accorded to government legislation.
However, the Committee has decided that ballot Bills in the Commons
should reasonably have a higher priority than other Private Members'
Bills in that House.
11. Where questions of compatibility do arise
in relation to a Private Member's Bill, the Committee intends,
in general, simply to report these matters for the attention of
each House, rather than expecting the Member in charge to provide
written responses. Of course, should they choose to do so, we
will receive them gratefully.
12. In fact, the only Private Member's Bill on
which we have so far reported on was the Tobacco Advertising and
Promotion Bill [Lords], which was identical to a Government
Bill of the same title which was lost at the dissolution and not
reintroduced by the Government. In these special circumstances,
we did seek written responses from the Department of Health and
the DTI, and they were given.
We consider that this sets a useful precedent.
13. The Standing Orders relating to Private Bills
were amended with effect from 27 November 2001 so that S.O. 38(3)
of the House of Commons now requires the memorandum attached to
each Bill by the promoter to include a statement of opinion as
to compatibility with Convention rights. S.O. 169A requires a
Minister to report on each such statement (by depositing a statement
in the Private Bill Office) immediately after First Reading.
14. Given the introduction of these procedures,
the JCHR has decided that the comprehensive nature of its approach
to legislative scrutiny should include commenting on these opinions/statements.
The Committee will consider Private Bills in much the same manner
as it does Government Bills. So far, none has raised significant
human rights questions.
Reports of Committee's Conclusions
15. In this Session we have published separate
reports on each Bill we have examined in depth (and in some cases
more than one). We recognise a need to systematise the presentation
of the conclusions of our scrutiny, so that it is made readily
available to each House in a recognised and standardised format.
This is the policy adopted by the other 'scrutiny' committees
of the two Houses.
16. Alongside efficient communication, the other
factor driving the demand for a more systematic approach to publishing
the conclusions of scrutiny is the need for timeliness. The Committee
needs to make its conclusions (whether neutral or critical) available
at a stage which is plausibly early enough to influence a Bill's
17. Additionally, we hope that by reporting the
progress of its inquiries regularly, the Committee will increase
the pressure on Departments to respond promptly to its inquiries.
18. We therefore propose in due course (perhaps
not before the start of the next Session) to publish a regular
report on our scrutiny of Bills. This would take a standard format,
which might be broadly along the lines of
(a) A short introductory general report,
setting out what the remainder of the report includes and making
any special or general observations as needed.
(b) A series of Annexes, each devoted to
a singe Bill, setting out standard information and giving the
Committee's opinion on each Bill. Where questions had been raised
by the Committee, these would be reported even if a response had
not yet been received from a Minister. Where there was an exchange
of letters (and occasionally oral evidence), a Bill might appear
in a number of successive reports.
(c) Post-legislative reviews of previously
19. We also intend to publish an annual report
summarising key issues which have arisen in the course of our
legislative scrutiny work, and following through general themes
Section 19 Statements
20. We have continued an a correspondence begun
by our predecessors with the Government about the nature of section
19 statements. In particular, we have been pressing for more information
to be given to Parliament than the bald statement that a Bill,
in the opinion of a Minister, is compatible with Convention rights;
and have sought for some explanation of the questions that were
looked at in coming to such conclusions to be given as a matter
of course. We are pleased to be able to report that there has
been positive movement on this issue, and that the Lord Chancellor
has informed Parliament that the Explanatory Notes relating to
each Government Bill will now include more such material.
Scrutiny of Delegated Legislation
21. Statutory instruments are normally "subordinate
legislation" for the purposes of the Human Rights Act 1998.
Under the terms of the Act, subordinate legislation is invalid
to the extent of any incompatibility with a Convention right,
unless the effect of the enabling legislation is such that the
subordinate legislation could not have been made in a manner compatible
with the Convention right. The Joint/Select Committee on Statutory
Instruments (JCSI) is required to consider whether statutory instruments
are intra vires. Under that heading, the JCSI examines
the compatibility of instruments with Convention rights, on the
basis of appropriate legal advice. We concluded that for the JCHR
also to examine such instruments would unnecessarily duplicate
the work of the JCSI. We consider, however, that it would nevertheless
be desirable for the JCHR to examine such an instrument if its
purpose was to amend the law to make it compatible with a Convention
right (or if a Member of either House has requested that it should
be considered by the JCHR). The JCHR will therefore examine, and
if necessary report to each House on, statutory instruments which
count as subordinate legislation for the purposes of the Human
Rights Act 1998 only if it considers it appropriate to do so because
the instrument is either expressly concerned with Convention rights
or where a Member of either House has asked the Committee to do
22. Some statutory instruments count as primary
legislation for the purpose of the Human Rights Act 1998. Examples
are statutory instruments which amend or repeal primary legislation
by virtue of a 'Henry VIII clause' (including most remedial orders
and deregulation and regulatory reform orders), commencement orders
for Acts of Parliament, Orders in Council made under section 84(1)
of the Northern Ireland Act 1998, and Orders in Council made under
the Royal Prerogative.
Subordinate legislation of this kind remains valid notwithstanding
any incompatibility with a Convention right.
23. The JCHR's terms of reference require it
to consider and report on all remedial orders (for which see below).
Other statutory instruments which count as primary legislation
for the purposes of the Human Rights Act 1998 will be examined
by the JCSI. Although that Committee will not be able to treat
compatibility with Convention rights as a matter of vires,
normally there will be little to be gained from further examination
by the JCHR. However, we have concluded that the JCHR should consider
subordinate legislation which counts as primary legislation under
the terms of the Human Rights Act if: it is referred to the Committee
by the JCSI; or the instrument in question is intended to amend
the law to remove an incompatibility with a Convention right;
or if a Member of either House draws human-rights implications
of the instrument to the attention of the Committee.
24. The JCHR will consider local instruments
only if they are referred to the Committee at the request of Members
of either House.
25. We hope to include reports on delegated legislation
in our rolling scrutiny report referred to in paragraph 18 above.
We have as yet made no reports on statutory instruments other
than remedial orders.
26. Under the Human Rights Act a Minister has
power, in specified circumstances, to make a remedial order in
order to remove an incompatibility between domestic law and a
Convention right. Such orders may amend primary (or subordinate)
legislation, even where there was no express provision in the
relevant Act for it (or delegated legislation made under it) to
be amended other than by primary legislation.
27. The trigger for the making of such an order
is, briefly, either a declaration of incompatibility made by a
United Kingdom court,
or where it appears that a decision of the European Court of Human
Rights in a case brought against the United Kingdom has highlighted
an incompatibility in statutory law in the United Kingdom.
A full account of the conditions and procedures for making remedial
orders can be found in our report on Making of Remedial Orders.
28. The Act sets out the procedure for making
such remedial orders. There are essentially two routes: the non-urgent,
which requires a Minister first to make a proposal for an order
and consult upon it, before laying an order in draft before Parliament
which is then subject to affirmative resolution procedure; and
the urgent procedure, under which the order may be made
and laid but ceases to have effect if not approved by both Houses
within a specified period.
29. Under S.O. No. 152B, the Joint Committee
on Human Rights is required to report to each House, within the
various statutory periods set out in the Act, on each proposal
for a remedial order, draft remedial order or urgent procedure
remedial order laid before Parliament. The procedures are modelled
on those adopted for Deregulation Orders (and now for Regulatory
Reform Orders), and the JCHR has a similar role in the process
of approving remedial orders as the Deregulation and Regulatory
Reform Committee has in relation to those.
30. The first proposal for such a remedial order
was laid before Parliament on 19 July 2001. It was to amend the
sections 72 and 73 of the Mental Health Act 1983 in respect of
the nature of the burden of proof required to be demonstrated
in the finding of a Mental Health Review Tribunal as to whether
a person compulsorily detained under the Act should continue to
be detained. The incompatibility had been identified by the Court
of Appeal in a declaration made in April 2001. In response to
our urgings, the proposal for a draft remedial order was withdrawn
on 9 November and replaced by an urgent procedure order on 19
November. We reported on that order in December.
31. Following our experience of considering the
first remedial order to be made under the Human Rights Act, we
published a further report, setting out the procedures as we interpreted
them, for the sake of clarity. We also made a number of recommendations
about how Departments should act on their duty to keep us informed
of the progress of the Government's responses to such findings
of incompatibility. We also commented on some minor anomalies
in the legislation and in the standing orders of the House of
Commons which we felt had been highlighted by our experience.
Of particular relevance to the Liaison Committee are the shortcomings
we identified in that report in the safeguards applied by the
standing orders to the process of approval of remedial orders
(whether draft or made) in the Commons.
We hope the Liaison Committee will lend its support to our recommendations
in its own annual report.
32. At present, it is impossible to predict how
many remedial orders are likely to be made each year. If the rate
of flow were to accelerate, and the orders were to be more complicated
and controversial than the first, this could have significant
Policy-based or "Thematic" Inquiries
33. So far we have described the legislative
scrutiny work of the Committee. As we said above, the remit of
the Committee is wide, covering all matters relating to human
rights in the United Kingdom with the exception of the consideration
of individual cases. We intend to make use of these wide terms
of reference, although so far the demands of legislative scrutiny
work have prevented us from making as much progress in other areas
as we would have liked to.
The Case for a Human Rights Commission for the
34. During the passage of the Human Rights Bill
through Parliament, much reference was made to the desirability
of establishing a Human Rights Commission. The Government's response
was generally to suggest that the JCHR, once established, would
be the best body to consider this question and come forward with
recommendations. Our predecessors in the last Parliament enthusiastically
took up this suggestion, and launched an inquiry into the case
for a Human Rights Commission for the United Kingdom. We intend
to continue it. The key questions we hope to address are
- what the possible functions of a Commission
- what its relationship with the JCHR should
- what priority should be assigned to its different
- what its geographical extent should be (in
particular whether there should be separate Commissions in Northern
Ireland, Scotland and Wales);
- what its relationship with the Information
Commissioner, the Commission for Racial Equality, the Equal Opportunities
Commission, the Disability Rights Commission, the Equality Commission
for Northern Ireland and the Children's Commissioner for Wales
- how its independence should be assured, how
it should be appointed and to whom it should report;
- what resources would be required;
- what its formal powers should be (for example
to issue notices of incompatibility, to initiate or participate
in legal proceedings, to issue Codes of Practice, etc.).
35. We will be holding a seminar at the end of
February to launch the next phase of this inquiry. We hope to
report before the beginning of the next Session.
Monitoring Human Rights and the Implementation
of the Act
36. Our predecessors conducted an inquiry, on
which they did not have time to make a full report, into the implementation
of the Human Rights Act.
We intend to continue this work in a number of ways.
37. First, we will take regular evidence from
Ministers responsible for human rights policy throughout Government.
Principal responsibility was transferred after the general election
from the Home Office to the Lord Chancellor's Department. We have
already sought written evidence from the Department, and intend
to follow this up with oral evidence shortly. We hope to monitor
closely how the culture of human rights is being encouraged throughout
government and other public authorities. We do not consider that
it is sufficient only to look at legislation once it is proposedthe
culture of human rights should be informing policy making at every
stage and every level.
38. Second, we will monitor the decisions of
the various courts (including Strasbourg) which raise issues of
human rights relating to the UK. Where these seem to us to require
it, we will seek evidence from the Government as to how it is
proposing to respond to these findings. We also hope to demonstrate
that some of the more apocalyptic predictions about the impact
of incorporation are not being realised.
39. Third, we hope to monitor, and indeed participate
in, the process by which the Government reports to various international
bodies on the discharge of the UK's obligations under a number
of international human rights instruments. The reports which we
have already identified are
UN Human Rights Committee
International Convention on Civil and Political Rights
UN Committee against Torture
UN Convention against Torture
UN Committee on Elimination of Discrimination against Women
UN Convention on Elimination of all forms of Discrimination against Women
UN Committee on Rights of the Child
UN Convention on Rights of the Child
The Committee's remit is not confined to the terms of the Human
Rights Act. We may also wish to examine issues of race discrimination
in relation to International Convention on the Elimination of
Racial Discrimination, matters relating to the provisions of the
European Social Charter, and rights established under the International
Covenant on Economic, Social and Cultural Rights. By giving greater
parliamentary and public visibility to the preparation, contents
and conclusions of the reports from the UK Government relating
to some of these instruments, and the Government's actions in
response to recommendations of the different international organs
involved in monitoring their implementation, we hope to raise
the profile of this work.
40. Fourth, we intend to produce an annual report on implementation
of the Act and other questions relating to human rights in the
UK. We hope that in due course, time might be found for an annual
debate in each House on these matters.
41. We also wish to undertake, when time and resources allow,
a series of inquiries into human rights issues in practice, as
embodied in the behaviour of public authorities in relation to
citizens in their care or to whom they provide services. Amongst
the potential topics we have identified are
- Deaths in custody
- The characterisation of a person or body as a 'public authority'
subject to the Convention rights under the Human Rights Act 1998
- The development of privacy related rights against the press
- Immigration and deportation, including the treatment of
unaccompanied child asylum seekers in the UK
- Social security provision
- Social housing provision
Issues for the Attention of the Liaison Committee
42. At this relatively early stage in the JCHR's development,
we have not identified any pressing matters which we feel need
to be drawn to the special attention of the Liaison Committee.
Clearly, given the ambitious programme outlined above, resources
will be an issue for this Committee, as for other select committees
of the House.
43. So far, our experience of the level of co-operation from
Departments in our work has been a positive one. We have no matters
to raise in this connection.
44. Our principal objectives for the next year are to
- examine all legislative instruments introduced into
Parliament for their compliance with Convention rights and other
human rights instruments;
- establish an effective system for involving outside groups
in the scrutiny of Bills and delegated legislation, and for reporting
our findings to the House;
- report on a Human Rights Commission;
- report on our continuous monitoring of human rights issues
raised by decisions of the courts, etc.;
- report on the findings of UN agencies and other international
organs on the UK's discharge of its obligations under various
human rights instruments;
- initiate a long-term programme of inquiries into the impact
of human rights considerations on the behaviour of public authorities
towards those in their care or to whom they provide services.
First Report, Session 2001-02, Homelessness Bill, HL Paper
30/HC 314; Second Report, Session 2001-02, Anti-terrorism,
Crime and Security Bill, HL Paper 37/HC 372; Third Report,
Session 2001-02, Proceeds of Crime Bill, HL Paper 43/HC
405; Fourth Report, Session 2001-02, Sex Discrimination (Election
Candidates) Bill, HL Paper 44/HC 406; Fifth Report, Session
2001-02, Anti-terrorism, Crime and Security Bill: Further Report,
HL Paper 52/HC 420; Ninth Report, Scrutiny of Bills: Progress
Report, HL Paper 60/HC 475; Tenth Report, Session 2001-02,
Animal Health Bill, HL Paper 67/HC 542 Back
See Eighth Report, Session 2001-02, Tobacco Advertising and
Promotion Bill [Lords], HL Paper 59/HC 474 Back
See the definition in s. 21(1) of the Human Rights Act 1998. Back
See Human Rights Act, s. 21(1) (definition of subordinate legislation). Back
See Human Rights Act 1998, ss. 3 and 4. Back
And where no appeal is outstanding Back
Human Rights Act 1998, Section 10(1)(b). Back
Seventh Report, Session 2001-02, Making of Remedial Orders,
HL Paper 58/HC 473 Back
Sixth Report, Session 2001-02, Mental Health Act 1983 (Remedial)
Order 2001, HL Paper 57/HC 472 Back
Seventh Report, op cit Back
ibid, Annex B Back
See Second Special Report, Session 2000-01, Implementation
of the Human Rights Act 1998, HL Paper 66- I and II/ HC 332-I
and II Back