Legislative Scrutiny Update - Human Rights Joint Committee

Legislative Scrutiny Update - Human Rights Joint Committee Contents

4 Bills not properly scrutinised

Obstacles to effective scrutiny for human rights compatibility

24. In this session there has been a significant number of Bills which it has not been possible for us to subject to proper scrutiny for human rights compatibility. Often this has been due to the way in which the Government has timetabled the stages of the Bill concerned or the short notice with which it has tabled significant numbers of amendments which raise major human rights issues. In this chapter of our Report we identify the Bills concerned and explain how effective scrutiny of them was made practically impossible. We also make some recommendations about how these too frequent obstacles to effective scrutiny can be overcome in future.

Emergency legislation

25. The most serious obstacle to effective scrutiny by this Committee is the use of emergency, or "fast-track", legislation. We share the growing concern expressed by the House of Lords Constitution Committee about the frequency of such legislation.[18] In this Session alone, we have been unable to scrutinise properly or report substantively on four Bills with significant human rights implications because they have been taken through Parliament as emergency legislation.

POLICE (COMPLAINTS AND CONDUCT) BILL

26. The Police (Complaints and Conduct) Bill was introduced as emergency legislation on 22 November 2012. At paragraph 29 of the Explanatory Notes to the Bill, it was said that the Government's assessment of the compatibility of the Bill's provisions with the European Convention on Human Rights had been sent to the Joint Committee on Human Rights. Regrettably, we were not sent any such assessment, nor were we given any advance notification of the likely timetable for the introduction of the Bill.

27. As we pointed out in our letter to the Home Secretary dated 28 November 2012,[19] this makes it extremely difficult for this Committee to perform its task of scrutinising Government bills for human rights compatibility. Draft clauses had been sent to the Home Affairs Committee on 16 November 2012, but were not shared with us, nor were we informed about the proposed timetable for introducing the Bill until the eve of its introduction. This is a Bill which clearly raises significant human rights issues, concerning the extent of the State's obligation to conduct an effective investigation into deaths and, potentially, the right of individuals against self-incrimination, yet no opportunity was afforded to us to scrutinise it properly for compatibility with human rights and to report in time to inform parliamentary debate on the Bill.

28. We asked the Home Secretary for her assurance that in future every effort would be made to ensure that this Committee is afforded a proper opportunity to scrutinise any fast-track legislation, if necessary by sharing draft clauses in advance and by keeping it informed of the proposed timetable for introduction.

29. We did however in the limited time available ask the Home Secretary by correspondence a number of substantive questions about the human rights implications of the Bill in our letter dated 28 November 2012. She replied in a letter dated 4 December 2012. The Bill completed its passage through the Commons on 5 December and through the Lords on 11 December 2012, before we had the opportunity to consider the Home Secretary's response to our substantive questions or report our views to Parliament.

SUCCESSION TO THE CROWN BILL

30. The Succession to the Crown Bill was introduced in the House of Commons on 13 December 2012, with all Commons stages taking place on 21 and 28 January.

31. The Bill is in principle a significant human rights enhancing measure. It removes discrimination against women in relation to the succession to the Crown. Our predecessor Committee reported on the human rights implications of the existing discrimination in relation to a Private Member's Bill, the Royal Marriages and Succession to the Crown (Prevention of Discrimination) Bill.[20] It concluded:

"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."[21]

32. We welcome the Succession to the Crown Bill in principle as a human rights enhancing measure because it removes from our law a form of overt discrimination against Catholics and women. However, we are concerned about the unnecessary use of fast-track legislation. As the House of Lords Constitution Committee has pointed out, the Bill concerns significant constitutional matters, which require full debate in Parliament.[22] These significant matters include human rights and equality questions: as the debates on the Bill have shown, there are questions about whether the Bill goes far enough to remove all unjustifiable discrimination, such as the continued ineligibility of women to succeed to the majority of hereditary peerages.[23] These are matters which we would have liked the opportunity to scrutinise in more depth. We regret the limited opportunity provided by the Government for detailed parliamentary scrutiny of the Bill, including whether it goes far enough to remove unjustifiable discrimination.

JOBSEEKERS (BACK TO WORK SCHEMES) BILL

33. The Jobseekers (Back to Work Schemes) Bill was introduced in the House of Commons on 14 March and all Commons stages took place on 19 March. The Bill received its Second Reading in the Lords on 21 March and all remaining stages in the Lords took place on 25 March.

34. The purpose of the Bill is to reverse a judgment of the Court of Appeal which quashed certain "Back to Work Schemes" Regulations on the ground that they were ultra vires (that is, outside the scope of the statutory regulation-making power), because they failed to make provision for schemes of a "prescribed" description, as required by the statute.[24] Because the central purpose of the Regulations was to impose "requirements" on claimants for Jobseekers' Allowance, with sanctions for failure to comply, the Court of Appeal held that it had no choice but to quash the Regulations as being ultra vires. As one judge put it: "[t]here is a constitutional issue involved. The loss of jobseekers' allowance may result in considerable personal hardship, and it is not surprising that Parliament should have been careful in making provision for the circumstances in which the sanction may be imposed."[25]

35. We have not been provided with a human rights memorandum in relation to this Bill. The Explanatory Notes correctly acknowledge that the Bill's provision for retrospectively taking away the entitlement to benefit gives rise to two human rights compatibility issues: first, whether the Bill is compatible with the right to peaceful enjoyment of possessions in Article 1 Protocol 1 ECHR; and, secondly, whether by taking away the benefit of the Court of Appeal's judgment the Bill is incompatible with the right of access to court in Article 6(1) ECHR.[26]

36. Although we have not had the opportunity to test the Government's assertions about the Bill's human rights compatibility, we have grave reservations about the Bill's compatibility with the right to peaceful enjoyment of possessions in Article 1 Protocol 1 and the right of access to court in Article 6 ECHR. Neither of these issues is satisfactorily dealt with in the Explanatory Notes. The Government's argument is that any interference with either right is justified, primarily by the saving of £130 million of public money. The Notes do not address two important issues which go to the heart of the Bill's human rights compatibility.

37. The first issue is whether the Bill's interference with the Article 1 Protocol 1 rights of claimants is "subject to the conditions provided for by law", which is a freestanding requirement of that Article. In ECHR terms, it is not enough that the retrospective provision is authorised by statute: to be "subject to the conditions provided for by law", that law must have certain substantive qualities, including accessibility, foreseeability and predictability. There is a question as to whether retrospective reversal of a court judgment which was based on lack of legal certainty in the regulations can ever satisfy the substantive requirement of legality in Article 1 Protocol 1.

38. The second question demanding scrutiny is whether it is a justifiable interference with the right of access to court for the legislature to enact a law which determines the very issue which is pending in an appeal before the Supreme Court, in circumstances where there is no good reason not to await the outcome of that appeal before deciding whether and how to respond.[27]

39. We would have liked the opportunity to scrutinise these two significant human rights issues in much more detail, with a view to informing the debate in both Houses as to whether the Bill is compatible with the UK's obligations under the ECHR. The unnecessary fast-tracking of the Bill, however, has deprived us of this opportunity. We will be writing to the Minister and to the Attorney-General to take up this issue.

MENTAL HEALTH (APPROVAL FUNCTIONS) BILL

40. One emergency Bill, the Mental Health (Approval Functions) Bill, was not drawn to our attention. The Bill concerned emergency and retrospective legislation in relation to approvals of medical practitioners given under the Mental Health Act 1983. Approved medical practitioners make medical recommendations about admitting mentally ill patients to hospital and detaining them for their own health or safety or for the protection of the public under the Mental Health Act 1983. The Explanatory Notes to the Bill identified that the rights to liberty and security (Article 5 ECHR), respect for private and family life (Article 8 ECHR) and property rights (Article 1 Protocol 1 ECHR) may be engaged by provisions of the Bill.

41. The Bill was introduced on 30 October 2012, completed its passage through both Houses and received Royal Assent on 31 October 2012. Despite its obvious human rights implications, we received no communication whatsoever about this Bill from the Department of Health: we were not notified about the Government's intentions to introduce it, or its proposed timetable, and we did not receive a human rights memorandum. The Bill therefore passed into law without any scrutiny whatsoever by this Committee of its human rights implications.

42. The mischief which particularly concerns us about the growing resort to fast-track legislation is not merely that it curtails parliamentary debate, but that it prevents the crucial scrutiny work by committees such as ours which seeks to ensure that debate is as fully informed as possible about important matters such as the implications of the fast-track measure for human rights, equality and the rule of law.

43. We welcome the Government's acceptance of the recommendation of the House of Lords Constitution Committee that, when it introduces fast-track legislation, it should provide Parliament with information about the efforts that have been made to ensure the amount of time made available for parliamentary scrutiny has been maximised. However, we recommend that the Government go further and bring forward practical proposals which would ensure, so far as possible, that parliamentary committees with a legislative scrutiny function have a proper opportunity to scrutinise fast-track legislation, and at a sufficiently early point in the passage of the legislation to make it possible for committees' recommendations fully to inform members of both Houses. Such proposals could include, for example, a commitment to share draft clauses with all relevant scrutiny committees in advance of introduction, and keeping those committees closely informed about the proposed timetable for introduction.

Timetabling of Bills

44. Even in relation to Bills which are not fast-tracked by the Government, the timetabling of a Bill can have the same damaging effect on the opportunities for effective scrutiny.

WELFARE BENEFITS UP-RATING BILL

45. The Welfare Benefits Up-rating Bill was introduced in the House of Commons on 20 December 2012,[28] received its Second Reading in the House of Commons on 8 January and completed all its remaining stages on 21 January.

46. The purpose of the Bill is to give effect to the Government's decision, announced in the Chancellor's Autumn Statement in December, to limit to 1% for the next three years the annual up-rating of certain working-age social security benefits and payments and certain elements of tax credits. The decision to limit up-rating of the relevant benefits to 1% for 2013-14 will be implemented by statutory instrument under the existing legislation. The Bill gives effect to the 1% limit on up-rating for 2014-15 and 2015-16.

47. The Government's rationale for the change is to save money by reducing in real terms public spending on welfare, in light of the national economic situation. The limit on up-rating is expected to deliver savings of £1.1 billion in 2014-15 and £1.9 billion in 2015-16. Those figures also describe the effect of the Bill on those in receipt of the relevant benefits: the affected households will be worse off by the same amount.

48. The limit on up-rating does not affect all welfare benefits. The Government has selected certain benefits to be subject to the limit, whilst up-rating other benefits in line with the rise in prices (as measured by the Consumer Prices Index ("CPI")). The Government says that it has chosen to protect key vulnerable groups by not subjecting certain benefits to the 1% limit. In particular, it has sought to protect pensioners and disabled people from the 1% limit on up-rating.

49. The Department for Work and Pensions did not provide us with a human rights memorandum. The Explanatory Notes to the Bill, however, set out the Government's view of the Bill's compatibility with the European Convention on Human Rights at paras 45-62.[29] An Impact Assessment was also promised in the Explanatory Notes to the Bill[30] and was published the day before the Bill's Second Reading.

50. There was nothing in the information provided by the Government to indicate that it had considered the compatibility of the Bill with other relevant human rights standards, including the UN Convention on the Rights of the Child ("UNCRC"), or the International Covenant on Economic, Social and Cultural Rights ("ICESCR"). We therefore wrote to the Secretary of State[31] asking to be provided with the Government's assessment of the compatibility of the Bill with (1) the duty of progressive realisation of children's right to an adequate standard of living under Article 27 UNCRC and Article 11 ICESCR and (2) the statutory duty on the Secretary of State in s. 2(1) of the Child Poverty Act 2010 to ensure that the statutory child poverty targets are met by the end of the financial year 2020-21. The Government responded on 29 January.[32] We would have liked to scrutinise the Bill properly in light of the Government's response to those questions, in order to inform the debate about the Bill in the Commons, but this was not possible because the Bill's timetable had been set by the Government as if it were emergency legislation.

51. We also wrote to the Secretary of State on 16 January pointing out that the Government's timetabling of the Bill, to complete all of its remaining stages in the Commons in one day, did not provide any opportunity for proper human rights scrutiny of the Bill's provisions. There was no justification for treating legislation such as this as if it were emergency legislation, especially since it relates not to the financial year beginning in April 2013 but rather to that beginning in April 2014. On account of the seriousness of the matter, we copied our letter to the Chair of the Liaison Committee and to the Leader of the House.

52. The recommendation we have made above concerning fast-track legislation applies with equal force to the timetabling of Bills which are not fast-tracked. When timetabling Bills the Government should always ensure that there is sufficient time for parliamentary committees with a legislative scrutiny function to have a proper opportunity to scrutinise legislation, and at a sufficiently early point in the passage of the legislation to make it possible for committees' recommendations to influence the Bill's content.

Late introduction of significant Government amendments

53. Another frequent obstacle to effective human rights scrutiny is the introduction of Government amendments with significant human rights implications very late in a Bill's passage. During this session this has happened on more than one occasion in relation to the Crime and Courts Bill.

THE CRIME AND COURTS BILL

54. The Crime and Courts Bill was introduced in the House of Lords on 10 May 2012. We subjected the Bill to detailed scrutiny and reported on it in November 2012 in time for the Bill's Report Stage in the Lords. As we pointed out in our Report, the Government's amendments to the Bill on community sentencing and other matters, which were made at the end of the Bill's Committee stage in the Lords, came too late for us to scrutinise in time for that Report.

55. In late January 2013, during the Bill's Committee Stage in the Commons, the Government tabled further amendments to the Bill concerning bailiffs, which also had human rights implications. We considered these amendments and wrote to the Minister on 5 February 2012 asking some questions about the Government's amendments to the Bill concerning both community sentencing and bailiff reform. The Minister replied to our questions on 19 February.[33]

56. In the meantime, on 5 February, at a very late stage in the Bill's passage through the second House (after 8 sittings of the Public Bill Committee and just two to go before the Committee was required to report), the Government introduced another extensive tranche of amendments to the Bill, relating to extradition, proceeds of crime and national security deportations: all matters with potentially very significant human rights implications and in respect of which, the Government is aware, this Committee has both a strong interest and some expertise. We were provided with an ECHR memorandum in respect of the amendments, for which we are grateful, but what we were not provided with was any opportunity to carry out any meaningful human rights scrutiny of the amendments before they were considered by the House in Committee or on Report.

57. We wrote to both the Justice Secretary and the Home Secretary on 6 February 2013 expressing our dismay at yet more Government amendments with very significant human rights implications being made to the Bill so late in its passage, and asking for an assurance that Report Stage would not take place until our Committee had had an opportunity to report on all those amendments raising significant human right issues which had been tabled since our last Report on the Bill. That assurance was not forthcoming in the Government's response dated 12 February.

58. To our disbelief, on 12 March, the day before the Bill's Report Stage in the Commons was due to start, we were sent yet further Government amendments to the Bill, covering a number of subjects, including one raising potentially significant human rights issues, concerning amendments to the Proceeds of Crime Act 2002, requiring individuals to pay for their legal aid from their restrained assets. The legal aid amendments were accompanied by an ECHR memorandum.

59. We are again grateful to have received the memorandum accompanying some of the Government amendments, a practice not yet established across departments as we explain elsewhere in this Report.[34] The purpose of providing us with a human rights memorandum, however, is to facilitate our scrutiny of the amendments for their human rights compatibility. As the Government will be aware, that purpose is defeated if the amendments are provided to us so late in the Bill's passage, and so close to the Bill's final stage, that it is impossible for us to conduct such scrutiny in order to inform parliamentary debate on the amendments.

60. Receipt of amendments and a memorandum on 12 March for a Report Stage commencing on 13 March and ending on 18 March makes human rights scrutiny impossible. In our view it shows disrespect for this Committee's important function. In view of the Government's repeated tabling of significant late amendments to this Bill, affording no time for us to perform our task, we have written to the Chair of the Liaison Committee asking him to take the matter up with the Leader of the House and the Minister for the Cabinet Office.[35]

61. The same concerns apply to the amendments to the Crime and Courts Bill on exemplary damages arising out of the Leveson Report. These amendments raise significant human rights issues requiring proper scrutiny.

62. We recommend that Government amendments with significant human rights implications should not only be accompanied by a human rights memorandum explaining the Government's reasons for its view that they are compatible with human rights law, but should also be made available to this Committee, with that explanatory material, so as to allow sufficient time for us to scrutinise and if necessary report on the amendments before the next stage of the Bill's passage.

Failure to notify of relevant Government amendments

63. Occasionally our human rights scrutiny of Bills is made more difficult by the Government's failure to draw our attention to a Government amendment to a Bill which, to the Department's knowledge, is directly relevant to an issue on which we have previously made a recommendation or which we have raised in correspondence.

PUBLIC SERVICE PENSIONS BILL

64. On our preliminary consideration of the Public Service Pensions Bill we were concerned about one very specific aspect of the Bill. Clause 3(3)(c) of the Bill allows public service pension scheme regulations to include provisions that have retrospective effect. From a human rights perspective, we were concerned that this clause could be used to make retrospective changes to accrued pension benefits.

65. Pensionable benefits that have already been earned or accrued (through length of service, payment of contributions, or otherwise) are 'possessions' within the meaning of Article 1 Protocol 1.[36] Article 1 Protocol 1 also extends to the legitimate expectation of obtaining effective enjoyment of a possession.[37] A deprivation of possessions or interference with their peaceful enjoyment may be justified if it (a) is subject to conditions provided for by law; (b) is in the public interest; and (c) strikes a fair balance between the individual's rights and the public interest.[38]

66. The Government's human rights memorandum and Explanatory Notes did not provide any specific analysis of the compatibility of clause 3(3)(c) with ECHR requirements.

67. We wrote to the Chancellor of the Exchequer on 22 January 2013 to express concern that clause 3(3)(c) of the Public Service Pensions Bill was not defined with sufficient precision to satisfy the requirement of legal certainty. The Government replied on 3 February 2013 stating that it would bring forward amendments at Report stage in the Lords to improve the protections in the Bill for the rights of pension scheme members when retrospective powers are used.

68. At Report stage, the Government proposed an amendment to clause 3(3)(c) to implement a "consent lock" whereby pension scheme members or their representatives would have to agree to any retrospective changes to pensions that have significant adverse effects on members. The consent lock would not apply to retrospective changes that have a significant adverse effect on non-pension benefits, such as injury and compensation schemes.

69. In our view it is at least questionable whether the consent lock provides sufficient legal certainty, because the circumstances in which the Minister who makes public service pension scheme regulations will seek to use the power to make retrospective changes remain undefined. During the debate on the amendment at Report stage concerns were raised that the clause would remain unbalanced even with the amendment as it would leave the responsible authority with the power to decide whether its own measures significantly affect members and should be open to consultation.[39] The amendment was agreed to, however, and made to the Bill.

70. In the Minister's letter of 3 February, he assured us that we would receive copies of the amendments tabled at Report stage relating to the matter raised in our letter. No copies were, however, sent to us. Whilst we welcome the Government's efforts to respond to our substantive concerns about this provision, we regret that because we were not sent or even notified about the Government's amendment, we missed the opportunity to reflect on it, let alone report on it, before it was debated and agreed to at Report stage.

71. With the limited staff resources available to us, it is simply not possible to examine all those amendments tabled each day to see whether they relate directly to our work. We have therefore included this amongst the matters we have asked the Chair of the Liaison Committee to take up with the Leader of the House and the Minister for the Cabinet Office.

72. We recommend that in future the Government ensures that we, or any other relevant parliamentary committee, are given early sight of, or at the very least notified about, Government amendments to Bills that relate directly to recommendations previously made by our Committee or to concerns we express in correspondence with ministers.

Human rights memorandum on introduction

73. Among the most important determinants of the effectiveness of our scrutiny are the quality of the information that we are provided with by Government Departments concerning the Bill's compatibility with the requirements of human rights law, and the timeliness with which that information is provided. In the last session we were pleased to be able to report a significant and growing number of examples of best practice, where Departments had very helpfully provided us, on a Bill's introduction, with a full human rights memorandum based on the ECHR Memorandum prepared for the Cabinet's Parliamentary Business and Legislation ("PBL") Committee and including analysis in relation to other human rights law requirements where relevant.

74. We are pleased to be able to report that examples of this best practice have continued in the current Session. As we have pointed out in our scrutiny Reports, we have received detailed human rights memoranda in relation to a number of Bills, including the Crime and Courts Bill, the Justice and Security Bill and the Defamation Bill.

75. Occasionally, for example in relation to the Crime and Courts Bill, the human rights memorandum has been provided at the same time as the Bill is introduced, which is most useful for us because it enables us to commence our scrutiny work at the earliest opportunity. It has been more often the case, however, that we have had to persistently request Departments for such a human rights memorandum, which means valuable time for scrutiny is lost. It also makes it more likely that the Department will be have to deal with less focused inquiries from us, and departmental officials will have to put in extra, and unnecessary, time responding to questions which could have been pre-empted had a detailed memorandum been provided on introduction.

ENERGY BILL

76. The Energy Bill was introduced on 29 November 2012. The section of the Explanatory Notes dealing with ECHR issues contained very little in the way of detailed analysis. The Bill raised some potentially significant human rights issues and we asked the Department to provide us with a human rights memorandum of the kind which is being provided by the departments following best practice. We received a very detailed and extremely helpful human rights memorandum on the bill on 18 February. We are grateful to the Department for producing the memorandum, which has led to us being able to focus on two very specific questions in our scrutiny of the Bill. However, the fact that we did not receive the memorandum until after the Bill's Committee Stage was finished means that there is a risk that we will not be able to report on the Bill in time for its Report Stage in the first House.

MARRIAGE (SAME SEX COUPLES) BILL

77. We had a similar experience with the Marriage (Same Sex Couples) Bill, which was published without a human rights memorandum on 24 January 2013. Again the Explanatory Notes did not contain a very detailed analysis of the reasons for the Government's view that the Bill is compatible with human rights law requirements. We requested a human rights memorandum and received a helpful and detailed one on 8 February. We are again grateful for the useful memorandum provided, but two weeks of lost scrutiny time on a Bill of such potential human rights significance can seriously hinder the effectiveness of our scrutiny.

CHILDREN AND FAMILIES BILL

78. In relation to the Children and Families Bill, the Government provided a detailed and very constructive response to our pre-legislative scrutiny Report on the draft clauses concerning the Children's Commissioner and to the pre-legislative scrutiny Reports of the other committees which had scrutinised some of the draft clauses. The Government also provided a memorandum in which it summarises its consideration of the Bill in light of both the European Convention on Human Rights ("EHCR") and the UN Convention on the Rights of the Child ("UNCRC").

79. We are grateful to have received this summary, fairly promptly after the Bill's introduction, and we are particularly grateful for the detailed analysis it contains of the Bill's compatibility with the UNCRC, which demonstrates the Government's seriousness about the commitment it gave to Parliament in December 2010 that it would give due consideration to the impact of laws and policies on the UNCRC. However, this summary memorandum is not as full as previous human rights memoranda provided by the same Department. The memoranda which most assist us in our scrutiny of Bills are those which contain the Government's full analysis (subject only to legal professional privilege), rather than a summary. The human rights memorandum also did not consider the provisions in Part 3 of the Bill in light of the relevant provisions in the UN Disabilities Convention ("UNCRDP"), and we therefore requested a further memorandum addressing this specific question.

80. Regrettably, it is also still the case that we never receive a human rights memorandum in relation to some Bills which raise significant human rights issues. This has been the case, for example, in relation to all of the fast-track Bills this session referred to above.

81. We recommend that all Departments adopt the best practice, demonstrated by some, of publishing on introduction of the Bill a detailed human rights memorandum which is based on the ECHR memorandum prepared for PBL Committee. This practice is to the benefit of Departments, because it enables our legislative scrutiny to be more focused, and in some cases is likely to lead to a Bill being cleared from scrutiny by this committee at an earlier stage in the Bill's passage.

Human rights memorandum accompanying Government amendments

82. This Session there have continued to be examples of best practice of the sort that we encourage, where departments provide us with a further human rights memorandum in relation to any Government amendments to Bills that have human rights implications. The Crime and Courts Bill is the best example of this good practice during the current session: we received a number of such supplementary memoranda with each tranche of Government amendments (even, as we point out above, where those amendments were introduced so late that there was no time for us to consider the human rights memorandum before the amendments had been made). However, the practice is by no means universally adopted and there continue to be examples of amendments of human rights significance being tabled without due and proper notification.

ENTERPRISE AND REGULATORY REFORM BILL

83. The Government tabled an amendment to the Enterprise and Regulatory Reform Bill which would abolish the Agricultural Wages Board and related English bodies. We did not receive any communication about the Government amendment. When the amendment was drawn to our attention we wrote to the Secretary of State for Business, Innovation and Skills asking him to provide us with a human rights memorandum setting out the Government's assessment of the human rights compatibility of the Government's amendment, and in particular its compatibility with the right to freedom of association, including Article 11 of the European Convention on Human Rights as interpreted by the European Court of Human Rights.

84. When the Government introduces amendments to Bills which have human rights implications, after the ministerial certificate under s. 19(1) of the Human Rights Act has been signed, we expect to be provided with a supplementary human rights memorandum containing the Government's analysis of the human rights implications of the amendment and explaining why in the Government's view the amendment is compatible with the requirements of human rights law. We recommend that all Departments follow the best practice examples of some Departments, by always publishing a supplementary human rights memorandum to accompany Government amendments to Bills which have human rights implications.

85. We intend to explore through the relevant channels in both Parliament and Government how best to give effect to these recommendations and we will continue to give thought to how we can best assist Departments to understand and meet our expectations as a committee which conducts systematic legislative scrutiny of Government Bills.

18 HL Select Committee on the Constitution, 12th Report of Session 2012-13, Jobseekers (Back to Work Schemes) Bill, HL Paper 155, at para 7. Back

19 http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/legislative-scrutiny-2012-13/police-complaints-and-conduct-bill/ Back

20 Legislative Scrutiny: Constitutional Reform and Governance Bill and Video Recordings Bill, Fourth Report of Session 2009-10, paras 1.93-1.97. Back

21 Legislative Scrutiny: Constitutional Reform and Governance Bill and Video Recordings Bill, Fourth Report of Session 2009-10, para 1.97 Back

22 Select Committee on the Constitution, Eleventh Report of Session 2012-13, HL Paper 106, paras 15-31 Back

23 HC Deb 22 Jan col 207-285; 28 Jan col 695; HL Deb 14 Feb col 783; 28 Feb col 1186. Back

24 R (on the application of Reilly and Wilson) v Secretary of State for Work and Pensions [2013] EWCA Civ 66 (12 February 2013). Back

25 Sir Stanley Burnton, ibid., at para 74. Back

26 Explanatory Notes, paras 42-48. Back

27 In substance these human rights questions about the Bill are the same as the constitutional concerns about the Bill expressed by the House of Lords Constitution Committee in its Report on the Bill. Back

28 HC Bill 116. Back

29 Bill 116-EN. Back