40. In the previous Chapter we briefly described how our predecessors established legislative scrutiny as one of the most important factors in their work, and how we decided to continue in the same vein. In this Chapter we describe in more detail how we have conducted legislative scrutiny during the 2001-05 Parliament.

41. The main objective of our legislative scrutiny is for us to provide our advice on the human rights compatibility of proposed legislation in a timely manner for Parliament to be able to take it into account as it debates that legislation. We approach all bills in essentially the same way, which we describe below in relation to our procedure on Government bills, unless otherwise stated. In paragraphs 86 to 90 we consider the distinctive factors affecting our scrutiny of private Members' bills and private bills.

42. We feel that we should point out that we are not required to report on the human rights compatibility of every bill introduced into Parliament. This is a task which we have assumed voluntarily. In performing this self-imposed task, we have aimed to publish our reports in time to be taken into consideration in parliamentary debates, and, with a small number of exceptions, we have succeeded in doing so.

The form of our conclusions on human rights compatibility

43. In considering the human rights compatibility of legislation, we examine independently and afresh the entirety of each bill. In the case of all bills we seek to assure ourselves of the compatibility of their provisions with Convention rights as defined in the HRA. We therefore look behind the ministerial statement of compatibility with Convention rights which is made in relation to Government bills. But we do not confine ourselves to providing a view on compatibility with the ECHR: we also seek to analyse the compatibility of legislative provisions with other international human rights instruments to which the UK is a party, even though the provisions of such instruments may not be directly justiciable in UK courts.

44. Questions of compatibility are not often conducive to unequivocal views. Unlike the courts, we are not an adjudicative body, nor would we claim to be infallible arbiters of such matters. We see our role as to alert both Houses of Parliament on occasions when we consider that they may be at risk of proceeding to legislate in a manner which will later be held by a court to be incompatible with the ECHR. We have used a variety of formulations to express our opinions, and have essentially settled on the following gradation of concern which we use in drawing the attention of both Houses to a matter—

• a legislative provision presents a "significant risk" of incompatibility with Convention rights
• a legislative provision presents a "risk" of incompatibility with Convention rights
• though there may be no appreciable risk of incompatibility with Convention rights, a provision nevertheless raises some human rights concerns.

The scrutiny process

46. How do we approach the scrutiny of bills? The general principles which we apply to the scrutiny of Government bills were set out in our Fourteenth Report of Session 2001-02, and are as follows—

a)  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 …

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 cases.[30]

47. These general principles have remained constant in relation to our scrutiny of Government bills. Every bill is examined by the Legal Adviser at as early a stage as possible to determine whether significant questions of compatibility appear to be raised by any of its provisions. Significance is determined by applying various criteria, including how important is the right affected, how serious is the interference with it and, in the case of qualified rights, how strong is the justification for the interference, how many people are likely to be affected by it, and how vulnerable they are. The examination will take into account any information provided by the Government about human rights compatibility which is contained in the Explanatory Notes accompanying each Government bill, and any submissions or briefing provided by outside organisations. Oral evidence has been taken only in exceptional cases.

48. On a number of bills, no human rights issues appear to us to arise and we report accordingly. Where any significant questions of human rights compatibility appear to arise, our general practice has been for the Legal Adviser to prepare a Note identifying the human rights issues and giving an opinion. Our consideration of the Note has formed the basis for a draft report containing our initial or provisional views on a bill, and of any draft letter to be sent to the Government seeking further information or clarification.[31] When a response from the Minister has been received, the Legal Adviser has prepared a further opinion, which again has been used as a basis for discussion and for preparation of a second draft report on the Bill. In most cases this has comprised our final thoughts on the Bill, with the Government's response published as an appendix in the same report.

49. For bills which raise significant human rights issues, therefore, the scrutiny process which we have developed involves two stages of reporting, the first involving provisional views on compatibility, subject to the Government's response to our questions, the second presenting our final views in the light of the Government's response.

50. Of course there are exceptions to this. In a significant number of cases (virtually always when we consider that a bill raises no real risk of violating human rights) we set out final views without seeking clarificatory information from the Government. In other cases we have commented on bills in a succession of reports. The circumstances in which this might happen include publication of drafts of regulations made under or guidance associated with a bill, receipt of further information or views from the Government or outside organisations, or the tabling of Government amendments[32] or the making of amendments[33] raising fresh human rights issues. When such amendments are tabled or made at a late stage in a bill's passage, we have generally only sought to report when there has been a realistic chance of intervening at a stage before the Bill ceases to be amendable, taking into account whether the Government will have enough time to respond to any points raised in the report.

51. Our aim, particularly with contentious Bills, is to place our views on record as early as possible. We have a self-imposed target of reporting our views on a bill's human rights compatibility before second reading in the second House.[34] This is a target, not a commitment. In most cases we report on bills long before this time, often while bills are still in the first House. We do not request Departments to respond in writing to our conclusions, but some do voluntarily. Such responses are published, usually without comment from us, in further reports as soon as possible.

52. During the latter half of the 2003-04 Session, and particularly in the time-pressurised circumstances of the 2004-05 Session, we have modified our practices in view of the need to provide Parliament with our views on important bills as soon as possible, often considering the Legal Adviser's Note, draft report paragraphs and draft letters to Ministers at the same meeting.

Progress report or stand-alone report?

53. In the first Session of this Parliament, before we had fully developed the two-stage process described above, our general practice was to publish a stand-alone report on each Bill which raised substantive issues at the end of the exchange of correspondence with the Department, giving a concluded view. Our so-called "progress reports", dealing with more than one bill, were largely reserved for reporting "no comment" bills. The main disadvantage of this approach was that reports came out quite late in a bill's progress. The advantages were that we had a chance to give proper space to the Government's arguments before expressing a view, and we presented our own views on each bill in one document.

54. From the 2002-03 Session we adopted the approach of substantive progress reports on each stage of our consideration outlined above, mainly because of the overriding need to provide our comments to Parliament, even in provisional form, as soon as possible. By this time it had also become clear that there was often going to be a continuing dialogue between us and the Government, so having a vehicle for publishing further exchanges on a bill was valuable.

55. During the brief period of the Committee's existence at the end of Session 2000-01, it was unable to publish many reports.[35] It had time to consider the Criminal Justice and Police Bill in some depth and four other bills,[36] and even then the Committee restricted itself to publishing the correspondence between the Chairman and the relevant Minister with little comment.[37]

56. In Session 2001-02 we published 19 scrutiny reports, commenting on 37 Government bills, 133 private Members' bills (PMBs) and 11 private bills. In Session 2002-03 we published 12 scrutiny reports, commenting on 36 Government bills, 74 PMBs and 3 private bills. In Session 2003-04 we published 13 scrutiny reports, commenting on 35 Government bills, 70 PMBs and 4 private bills. In the final truncated Session of the Parliament, 2004-05, we published 12 scrutiny reports covering 34 Government bills, 53 PMBs and 5 private bills. In the first Session of this Parliament, 14 of the 19 scrutiny reports were stand-alone reports, dealing with a single bill, whereas in Sessions 2003-04 and 2004-05 combined only 7 were stand-alone reports. These statistics demonstrate the trend away from stand-alone reports on individual bills towards a higher proportion of combined scrutiny progress reports, dealing with more than one bill at a time.

57. Certain circumstances continue to require the occasional stand-alone report. There may be only one bill to report on. The view of the Committee may be required quickly. The human rights significance of a Bill may be felt to require it.[38] On occasion a Bill requires a more wide-ranging approach than normal human rights compatibility scrutiny.[39]

58. There may be a perception that stand-alone reports are seen as the important reports on controversial bills, whereas regular scrutiny progress reports are reserved for less controversial bills. It is not necessarily the case that bills dealt with in scrutiny progress reports are of less significance in human rights terms than bills dealt with in stand-alone reports. We are conscious though that a succession of scrutiny progress reports dealing with a number of different bills is not easy for Members or the public to navigate, especially when they may have an interest in a single bill. For this reason we include at the back of all our scrutiny reports a list of all those reports from that Session which deal with particular bills. We also include reference to any previous relevant reports on a bill at the top of the section of each progress report dealing with that bill.[40]

59. We have also begun to include at the beginning of our scrutiny reports a summary highlighting the main points raised in the report in relation to each individual bill on which we consider that human rights compatibility issues arise. Our successor Committee may wish to consider ways in which these summaries could provide better signposting for those interested in the points which are being drawn to the attention of each House in the main body of the reports.

Two case-studies

60. A description of the scrutiny which we conducted on two Government bills raising a number of significant human rights concerns may assist in understanding how our scrutiny operates, including the difficulties we face, and how our scrutiny inter-relates with the overall legislative process.

THE ASYLUM AND IMMIGRATION (TREATMENT OF CLAIMANTS, ETC.) BILL OF SESSION 2003-04

61. The Asylum and Immigration (Treatment of Claimants, etc. ) Bill was a Government bill of Session 2003-04, presented to the House of Commons on 27 November 2003 and receiving a second reading on 17 December 2003. It started its Committee stage in the first week after the Christmas recess, on 8 January 2004. We agreed our first report on the bill on 19 January 2004, and published it on 26 January.[41] The report raised concerns on several issues, particularly the "ouster clause" (original clause 10). The clause would have introduced a new section 108A into the Nationality, Immigration and Asylum Act 2002 with the effect of cutting off all appeals to, and judicial review by, the ordinary courts in immigration matters, and excluding habeas corpus applications in immigration cases. Most importantly, it would have made section 7(1) of the Human Rights Act subordinate to the Nationality, Immigration and Asylum Act 2002, and thereby severely curtailed remedies for violations of Convention rights through the ordinary courts. We wrote to the Home Secretary with fourteen questions on 6 January,[42] receiving a reply on 22 January. The bill finished its Committee stage in the Commons on 27 January.

62. We considered the letter and agreed our second report on the bill on 2 February, published on 10 February.[43] With regard to the ouster clause, the Government admitted it might have been capable of "being interpreted as restricting access to the courts to a greater extent than is intended", and stated that the ouster clause was not intended to "affect the remedy of habeas corpus nor any right the person has to damages where he has been unlawfully detained. Nor is it intended to exclude judicial review where a person has no right of appeal against a particular immigration decision. The Government will give consideration to amending this subsection to make its scope clearer".[44]

63. Our second report on the bill, and other Commons committee reports critical of the bill,[45] added to the pressure on the Government, and were referred to on Report in the Commons.[46] The Minister in charge of amendments tabled on Report in the Commons indicated that "the Government amendments respond to concerns raised by the Joint Committee on Human Rights and other hon. Members".[47] However, these amendments dealt with other concerns and the bill arrived in the Lords on 3 March with the ouster clause intact.

64. The bill received a second reading in the Lords on 15 March. In his opening remarks on second reading, the Rt Hon Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor, announced that the Government would introduce amendments in Committee to replace the ouster clause with a system allowing oversight by the administrative Court.[48]

65. We subsequently received a letter from the Home Office responding to our second report on the bill, on 20 April, and Lord Falconer wrote to us on 2 May to explain the amendments he had announced at second reading. The bill was amended in Committee on 5 May 2004.

66. Report stage in the Lords started on 18 May. We agreed our third report on the bill on 26 May, publishing it on 4 June.[49] We welcomed many of the changes proposed, while retaining concerns on many aspects of the bill, including the amended appeal procedure introduced to replace the ouster clause.

67. On 8 June the Government announced the bill would be recommitted to Committee in the Lords, where it again introduced amendments with significant human rights implications. These were debated on 15 June and again at report stage on 28 June. We agreed a further (fourth) report on the bill, on 30 June, making clear our view that it was unacceptable that amendments with obvious and serious implications for human rights were tabled at such a late stage.[50] Our report was published on 5 July whilst the bill left the Lords on 6 July, to move back and forth between the Commons and the Lords between 7 and 21 July, receiving Royal Assent on 22 July 2004.

PREVENTION OF TERRORISM BILL OF SESSION 2004-05

68. The Prevention of Terrorism Bill of Session 2004-05 provides a contrasting example. This bill was taken through both Houses in a little over two weeks, in order to establish a new system of control orders for suspected terrorists before the expiry at midnight on 13 March 2005 of the regime of indefinite detention of foreign nationals suspected of terrorism under Part 4 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA 2001). Part 4 of ATCSA 2001 had been ruled incompatible with the ECHR by the House of Lords on 16 December 2004 in the case of A v Secretary of State for the Home Department, on the grounds that the powers contained in it were not proportionate to the threat posed by terrorism and were discriminatory in that they only applied to foreign nationals.

69. The bill was introduced into the House of Commons on 22 February 2005. In theory we could not have been better prepared for the presentation of the bill. We had previously reported on the Anti-terrorism Crime and Security Bill itself when it was before Parliament, on the annual Part 4 continuance orders and, in 2004, on the Government's review of counter-terrorism powers. In addition we had taken oral evidence from the Home Secretary on 9 February on the issues arising from the Lords judgment.

70. We were able to agree and publish two reports on the bill in time to be available for debates in both Houses. The day after the bill was introduced, which was also the day on which it received a second reading in the House of Commons, we agreed a report giving our preliminary views on the bill's human rights compatibility, focusing on whether there was a necessity for derogating control orders to be included in the bill and on the degree of judicial involvement in the control order procedure.[51] This report was published on 25 February, 3 days after the bill's appearance and in time for the Committee stage of the bill in the House of Commons, which took place on 28 February. In particular, the issues surrounding judicial involvement in the control orders process, which we had highlighted, were central to the debates in both Houses on the bill.

71. After completing its passage of the Commons, the bill went unamended to the House of Lords on 28 February and received a second reading the following day. Having indicated its intention to bring forward various amendments during Commons debates, the Government tabled them on 2 March in the Lords. That afternoon we agreed our second report on the bill,[52] focusing on the Government's amendments, which was published two days later, on 4 March, in time for the second day of Committee in the Lords, on 7 March.

72. Despite the speed with which we were able to react, we consider that the circumstances in which we found ourselves made our task of providing considered human rights compatibility advice to both Houses extremely difficult. We found ourselves having to consider draft reports on complex legislation with little or no notice in the context of a bill passing through its parliamentary stages very swiftly and in a highly politicised environment. For these reasons we mainly confined our second report on the bill to a consideration of important Government amendments increasing judicial involvement in the process relating to derogating and non-derogating control orders, rather than attempting a full analysis of all the bill's provisions. In our report we recorded our regret "that the rapid progress of the Bill through Parliament has made it impossible for us to scrutinise the Bill comprehensively for human rights compatibility in time to inform debate in Parliament".[53]

Difficulties encountered by the Committee

73. The difficulties we encountered in relation to the Prevention of Terrorism Bill of Session 2004-05 were an extreme example of problems we have repeatedly faced in reporting on bills in time to provide advice for both Houses which can be used by Members in debate or for tabling amendments. Ideally we would wish to publish our final views on a bill regularly in time to give the benefit of them to the House where the bill is introduced. This can be difficult to achieve. The most important determinant of our ability to report promptly is the overall volume of primary legislation introduced into Parliament and the speed with which it is taken through both Houses. This has placed particular strain on us during Session 2004-05.

74. Within this overall context, there are further factors to consider—

• we do not get any advance view of bills so cannot begin our consideration before a bill starts on its way through the first House;
• the same applies to amendments with human rights implications tabled to bills. We experience particular problems when Government amendments with significant human rights implications are tabled at a late stage during a bill's parliamentary progress;
• we have no specific powers to slow down, or in any way formally affect, the timing of the passage of a bill;[54]
• we have finite resources and must therefore prioritise between bills;
• external submissions on bills can be of great assistance to us in identifying potential human rights points, but the timetable in which we have to operate makes it very difficult to invite contributions on a bill-by-bill basis. We cannot invite evidence as if carrying out a conventional inquiry, and have yet to develop a fully satisfactory means of publicising which bills we will be considering in the near future.[55]
• if we consider aspects of Government bills may not be human rights compatible we write to the Minister in charge of the bill asking pertinent questions. This introduces delay waiting for the response.

EXPLANATORY NOTES

75. Early in the Parliament, we had an exchange of correspondence with the Attorney General and Lord Chancellor about the quality of the human rights analysis in Explanatory Notes. Revised guidance was issued by the DCA's (then) Human Rights Unit, exhorting Departments to explain more fully what human rights had been considered to be engaged by a Bill's provisions, and what considerations had led to the conclusion that a section 19(1)(a) statement could safely be made.[56] This has had some effect, but performance remains very uneven. We have found ourselves commenting frequently on the inadequacy of the Explanatory Notes.[57] Recent examples include the woefully inadequate section on the ECHR in the draft explanatory notes accompanying the draft Mental Health Bill, a draft bill on which there has already been lengthy and extensive debate about the human rights implications, and the extraordinary failure of the Explanatory Notes on the Identity Cards Bill in Session 2004-05 to contain any analysis of the human rights implications of the bill.[58]

76. We recognize the Government's entitlement to legal privilege and have never requested a copy of the Government's internal legal advice on the human rights compatibility of bills, which takes the form of an "ECHR Memorandum", drawn up for submission to the Cabinet's Legislative Programme Committee.[59] But we regard the adequacy of Explanatory Notes' treatment of human rights issues as a crucial matter for our effectiveness in scrutinising legislation. Time after time our scrutiny would have been expedited if Explanatory Notes had contained a fuller explanation of the Government's reasons for considering that a bill's provision were compatible with human rights.

77. Although the content of these Notes has been improved as a result of our efforts, some of the Government's wariness of providing fuller explanation may be because they remain constrained by the fact that they are published by Parliament rather than the Department. This may crucially affect the extent to which the Notes go into the justification for any interference with a human right. This is explicitly acknowledged in the Cabinet Office Guide to Legislative Procedures (October 2004), at para. 10.22—

In some cases, it may be sufficient simply to state that an issue has been considered, and that a particular conclusion has been reached: for example, the Notes might record the Minister's conclusion that a provision should not be regarded, for the purpose of Article 6, as imposing a criminal charge. In other cases, Departments may refer to the policy justification for what is proposed, which will be central to any assessment of whether, for example, a possible interference with an Article 8(1) right is justified under Article 8(2). But departments should be aware that explanatory notes are published by Parliament, and that the House authorities will not accept text that is argumentative in character. (our emphasis)

78. The Delegated Powers and Regulatory Reform Committee is supplied by departments with a "delegated powers memorandum" soon after the introduction of a Bill. The Commons European Scrutiny Committee and the Lords EU Committee also have the benefit of an Explanatory Memorandum prepared by the Government explaining proposed EU legislation, including now a section on potential human rights issues raised by the proposed measures. We suggest that our successor committee could consider pressing the Government to provide it with a free-standing Human Rights Memorandum devoted solely to an assessment of the human rights compatibility of a bill, without divulging legal advice the Government has received about the bill's vulnerability to challenge on human rights grounds. Such an assessment should at the very minimum:

• identify the Convention rights and any other human rights engaged by the bill, and the specific provisions of the bill which engage those rights
• explain the reasons why it is thought that there is no incompatibility with the right engaged
• where the rights engaged are qualified rights, identify clearly the pressing social need which is relied on to justify any interference with those rights
• assess the likely impact of the measures on the rights engaged
• explain the reasons why it is considered that any interference with those rights is justified
• cite the evidence that has been taken into account by the Department in the course of its assessment.

79. Requiring a separate Human Rights Memorandum to be provided to our successor committee would greatly assist it in being able to report on the human rights implications of a Bill as early as possible in the Bill's passage through Parliament, and should not be onerous for Departments bearing in mind that they already produce an ECHR Memorandum. Such a requirement would also make it clear, in a way that previous approaches, including the DCA guidance, have failed to do, that there is an obligation on Departments to explain the human rights implications of a Bill, and make it difficult for a Department to provide no explanation at all.

Government responses

80. In most cases when we consider that a Government bill may have significant human rights implications, we put questions to the appropriate Department in writing. We are pleased to record that, once Departments had become used to our existence, in the early part of this Parliament, the quality and timeliness of their responses reached, and has been maintained at, a generally high standard. This judgment is not based on whether the Department concerned agrees with our human rights analysis, but on whether it engages seriously with it. Some Departments, such as the Home Office, perhaps because it deals so often with us in relation to legislation it is taking through Parliament, are particularly good at responding to our questions. It is rare that a Department fails to answer our questions satisfactorily. The overall good performance of Departments in this regard, which demonstrates that the requisite human rights compatibility analysis is done within Government, does however serve to highlight the poor quality of Explanatory Notes, and reinforces us in our view that the effectiveness of our legislative scrutiny would be enhanced by the provision of a Human Rights Memorandum to us at the time of presentation of a bill.

81. Despite our welcome for the seriousness with which the Government treats our questions in its responses, we have noticed that the Government frequently employs two related catch-all defences to our compatibility queries. One of these defences is that wide discretions granted to public authorities by a bill do not raise compatibility questions because, under section 6 of the Human Rights Act, such authorities will be behaving unlawfully if they act in a manner incompatible with a Convention right.[60] The second defence is that order- or regulation-making powers contained in a bill, however broad, do not present incompatibility risks, because such delegated legislation, unlike primary legislation, is normally invalid to the extent that it is incompatible with a Convention right.[61] Both these defences go to the heart of the purpose of our scrutiny of bills for human rights compatibility, and the effectiveness of scrutiny, particularly in relation to bills which are essentially "enabling" legislation, such as the Identity Cards Bill of Session 2004-05. In our view, one of the most important features of the scrutiny we perform is that it is preventive in nature, aiming to minimise the likelihood of new legislation giving rise to breaches of human rights in practice. We consider this to be a constitutionally different function from the ex post intervention of courts when deciding whether a public authority has acted incompatibly with Convention rights.

82. The result of the arguments advanced by the Government has often been an unwillingness to include on the face of bills, either as originally drafted or in response to recommendations from us, specific safeguards against the use of powers in ways which would violate Convention rights. We accept that there is no need to spell out explicitly the requirements imposed by Convention rights in all legislation engaging those rights, and that one of the strengths of the HRA is that its sections 3 and 6 do enable courts to fill gaps in safeguards. By that stage, however, a human rights violation has already taken place. We have often taken the view that safeguards against official misconduct which could lead to breaches of human rights, whether set out on the face of a bill or through regulations or procedural and administrative guidance issued under it (which should whenever possible be available to scrutinise at the same time as the bill itself), are not only more effective guarantees against violations of Convention rights but are often required by the principle of legal certainty which requires that people should be able to predict with reasonable confidence how legal powers may be used against them. In this context we note that the Cabinet Office Guide to Legislative Procedures states that this Committee often looks at whether there are "sufficient safeguards to ensure a proper guarantee of human rights in practice, regardless of whether the absence of safeguards is strictly a compatibility issue".[62] Convention case-law makes clear that the existence of adequate safeguards for Convention rights is often a compatibility issue, and we regard the inclusion of such safeguards on the face of a bill as being in many cases essential to the development of human rights compatible legislation and practice.

Criteria for prioritising Bills

83. We believe that one of the principal factors in the reputation we have gained as an effective scrutiniser of legislation is that we attempt to deal comprehensively with all bills introduced to Parliament. Nevertheless in practice over the course of the Parliament, while maintaining our commitment to comprehensive coverage, we have developed a system of prioritisation which attempts to focus efforts on reporting early on Government bills with significant human rights implications, rather than dealing with bills in order of introduction.

84. Allowing for the small number of bills carried over from Session to Session, our bill scrutiny effectively starts anew with each raft of bills as announced in the Queen's Speech.[63] At the beginning of each Session we consider, on the basis of a Note from the Legal Adviser, the likely human rights implications of the legislation as proposed in the Queen's Speech, and in particular those bills which should be prioritised. However, there are problems in trying to identify those bills that are likely to have human rights implications without seeing the text of the bill and in gauging priorities when there is little indication as to the order each bill will be presented or their likely timetable.

85. We maintain our target of reporting on all Government bills before the second reading debate in the second House, and have been very successful in this regard. In each of the last three Sessions the only Government Bills that the Committee has not reported on in time have been Consolidated Fund and Appropriation bills (which speed through the Commons and are processed through the Lords formally, and in any event are extremely unlikely to raise human rights issues), and those which have proceeded faster than usual for some other reason (e.g. recently the Electoral Registration (Northern Ireland) Bill in session 2004-05).[64]

PRIVATE MEMBERS' BILLS

86. Our approach to scrutiny of private Members' bills (PMBs) is a modified version of our approach to Government bills. Taking into account that PMBs do not carry a section 19 statement, and that many make no significant parliamentary progress,[65] we decided in Session 2001-02 that "the resources devoted to them by the JCHR should be proportionate to this reality",[66] and set out the following general principle governing our scrutiny of PMBs—

Each private member's Bill will therefore be examined by the Committee for compatibility questions but, in allocating time and resources to this scrutiny, we will have due regard to the priority that needs to be accorded to consideration of government legislation. However, we do consider that ballot Bills in the Commons should reasonably have a higher priority than other Private Members' Bills in that House.[67]

87. This prioritisation takes the form of reporting sooner on Government bills than on PMBs.[68] However, we retain the target of reporting on PMBs before second reading in the second House, and many PMBs do raise sensitive human rights issues. If a bill does appear to raise such issues when it is published, a letter has been sent to the Member in charge of the bill, explaining the reason for the letter and asking the appropriate questions. We have always acknowledged that backbench Members of either House may not have the resources to respond in detail, and thus no inference is drawn from a failure to respond to our questions. Whether we receive a response or not, we publish our thoughts on the bill and the letter from the Chairman.

PRIVATE BILLS

88. Private bills undergo a different procedure from public bills. There are few of them,[69] they can take longer to proceed through all their stages, and importantly, they can be suspended and revived when Parliament is prorogued.[70] They also, by their localised nature, affect a much smaller part of the population. These factors somewhat reduce the urgency to comment. However, when both Houses saw fit to incorporate the question of the compatibility of private bills with Convention rights in their procedures, we took the decision to consider all private bills presented to Parliament,[71] and remain of the view that we should report on each bill before it receives a second reading in the second House.

89. Private bills do not carry a section 19 statement. The Standing Orders of both Houses were amended with effect from 27 November 2001 to require the memorandum attached to each bill by the promoter to include "a statement of opinion, by or on behalf of the promoters, as to the compatibility of the provisions of the bill with the Convention rights (as defined in the Human Rights Act 1998)".[72] The Houses' Standing Orders were also amended to require a Minister to report on each such statement immediately after first reading.[73]

90. We proceed in more or less the same way as for public bills, but in this case our Chairman writes to the Parliamentary Agents responsible for steering the bill through Parliament on behalf of the promoters (commonly a local authority), responsible for the specified activity the bill aims to introduce, with questions relating to the compliance or otherwise of the bill. Again, we publish our comments on the bill, alongside the letter from the Chairman, in one of our regular scrutiny reports. We may then return to the bill on receiving any response.

Pre-legislative scrutiny and draft bills

91. We are still in the process of developing a consistent procedure for scrutinising draft bills. There are reasons for this, not least that Parliament itself has not fully developed its own procedures, and we have to prioritise those bills actually passing through Parliament. Draft bills, by definition, are some way from being law. On the other hand, the draft bill stage can be a time when influence can be most profitably exerted, at a time when the Government is actively seeking advice and comments from inside and outside Parliament with a view to improving the drafting of legislation.

92. We have sought to comment as often as possible on draft bills, with the main exception of Session 2004-05 when we have been fully occupied with actual legislation. As any draft bill may subsequently return as a full bill, we feel less obligation to duplicate the scrutiny procedure we adopt for Government bills, including the exchange of correspondence. Neither do we feel the same need to await a Government response to questions before reporting.

93. As it is now the practice of Parliament to refer almost all draft bills to a committee of some kind, we aim to collaborate with the specific committee, whether ad hoc, existing or joint, to which the draft bill is allocated for scrutiny. To this end we have generally sought to be able to contribute our views, by way of our Chairman writing to the Chairman of the scrutinising committee, on the human rights implications of the draft bill. On occasions we have provided advice purely at official level, in order to assist the scrutinising committee in identifying the main human rights issues raised by a draft bill and, in particular, to identify the factual issues relevant to assessing compatibility on which the scrutinising committee may wish to take evidence. In either event, we have still whenever possible published our own views in a regular scrutiny report, with any necessary letter, to ensure they are on the public record, normally after the draft bill scrutiny committee has itself reported and we have been in a position to take account of evidence they have received and the views they have expressed. We have reported on several important draft bills in this way.[74]

94. We ourselves were given responsibility for pre-legislative scrutiny of the Draft Gender Recognition Bill in Session 2002-03. We accepted this task as the purpose of the bill was to remedy an incompatibility identified by the European Court of Human Rights and endorsed by the House of Lords. In our report we mainly addressed the human rights points raised by the draft bill.[75]

RECOMMENDATIONS ON PRIORITISING

95. We continue to believe that the comprehensiveness of our scrutiny has been immensely valuable. However, as described above we have developed in practice a system of prioritisation of different categories of bills which has not been fully and publicly stated so far. We would suggest that, in the interests of transparency, our successor Committee could consider agreeing and publishing criteria for prioritisation of its legislative scrutiny work. A possible order of priority, without sacrificing the principle of comprehensiveness, would be as follows—

• Emergency measures raising significant human rights compatibility questions (such as the Anti-terrorism, Crime and Security Bill of Session 2001-02 or the Prevention of Terrorism Bill of Session 2004-05)—seek to report as soon as possible after publication
• Government bills raising significant human rights compatibility questions—seek to report whenever possible before report stage in first House
• Government amendments raising significant human rights compatibility questions—seek to report as soon as possible after the amendments have been tabled, provided a report will be published while a bill remains amendable
• Other Government bills raising human rights compatibility questions—seek to report before second reading in the second House
• Private Members' bills raising human rights compatibility issues—begin to examine only when the bill receives a second reading in either House, but also taking account of whether or not the Government supports a bill, giving priority to ballot bills in the Commons over other bills introduced in that House, and ensuring that all bills introduced during any Session are reported on during that Session
• Private bills raising human rights compatibility issues—seek to report before second reading in the second House
• Draft bills—write to scrutinising committee identifying human rights compatibility questions which arise, but only report following publication of that committee's report.

Post-legislative scrutiny and delegated legislation

97. One issue which should in our view be considered by our successor committee is the scope which may exist for improving its scrutiny of delegated or secondary legislation. Up to now we have not routinely scrutinised delegated legislation (except remedial orders), despite the fact that we frequently report that whether a particular provision in primary legislation will be Convention-compatible in practice depends on the adequacy of the safeguards which are to be contained in regulations or guidance which have yet to be drawn up.[76] Our most sustained example of post-legislative scrutiny has been on Part 4 of the ATCSA 2001. We reported on the annual renewal orders for this section on each occasion on which they have been laid.[77] The 2004 report took into account the findings of the Newton Committee, and we followed this up with a report on the review of counter-terrorism powers[78] (and reports on the Prevention of Terrorism Bill intended to replace Part 4[79]). We also reported substantively on the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004,[80] and the draft Criminal Justice Act 2003 (Categories of Offences) Order 2004,[81] which both raised significant human rights compatibility concerns. In addition we have occasionally scrutinised codes of practice drawn up under legislative powers where in our report on the primary legislation we had commented that human rights compatibility will depend on the safeguards contained in such codes of practice.

98. Delegated legislation is not required by the HRA to carry a section 19 statement of compatibility, although affirmative procedure instruments do now carry such a ministerial statement as a matter of practice. It is not amendable by either House and it usually proceeds swiftly through Parliament. Given our finite resources, it is therefore clear to us that our main efforts in legislative scrutiny should be directed towards primary legislation.

99. Nevertheless, there is no reason in principle why the parliamentary committee undertaking the task of legislative scrutiny for human rights compatibility should wholly confine its scrutiny to primary legislation. On the contrary, there are many good reasons why that committee's scrutiny should extend to secondary legislation. It is no less likely to interfere with, or authorise interference with, human rights. Indeed, a number of violations found by the European Court of Human Rights have been in relation to provisions of secondary legislation, in particular the Prison Rules and the Immigration Rules. The tendency to legislate by general provision while delegating to a Minister the power to produce detailed regulations or guidance for the operation of a particular scheme makes it all the more important that those regulations or guidance are subjected to proper human rights scrutiny.

100. The recent Council of Europe Committee of Ministers' Recommendation to member states on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights makes no distinction between primary and secondary legislation. It recommends that member states "ensure that there are appropriate and effective mechanisms for systematically verifying the compatibility of draft laws with the Convention in light of the case-law of the Court".[82] It envisages that such mechanisms for the systematic verification of the Convention compatibility of draft laws should include verification at the parliamentary level. At present, the great majority of secondary legislation is scrutinised by the Joint Committee on Statutory Instruments (JCSI). It is possible for it to consider the human rights implications of the delegated legislation it considers, but it is rather restricted by its remit. It also has a very heavy workload, scrutinising a large number of instruments every session. Hitherto there have been informal consultations between the Legal Advisers of both committees in some instances, but there is no formal arrangement between the two committees as such.

101. Similar considerations apply to "soft law", such as guidance and codes of practice issued under or in association with primary legislation. The Committee of Ministers' Recommendation cited above has recommended that "administrative practice" should also be within the scope of mechanisms for the systematic verification of Convention compatibility, including as expressed in orders and circulars.

102. Clearly the resource implications of any change to our current practice to encompass scrutiny of more delegated legislation should not be underestimated. As currently resourced, we simply do not have the capacity to scrutinise all delegated legislation, or even a significant proportion of it, for human rights compatibility. It would be possible, however, for our successor committee to continue our practice of scrutinising some delegated legislation made under primary legislation on which it has reported to Parliament that the legislation raises significant human rights issues and in respect of which it has expressed concern about compatibility with human rights. Similarly, the committee in the future could consider scrutinising for human rights compatibility some of the guidance, codes of practice or other soft law which is made pursuant to legislation raising significant human rights issues on which it has reported to Parliament.

103. Scrutiny of all proposed EU legislation is carried out by the Commons European Scrutiny Committee and the Lords EU Committee. Such legislation is clearly capable of having human rights implications, and both Committees do occasionally consider whether a proposed EU measure is compatible with the UK's human rights obligations. Should the Treaty establishing a Constitution of Europe be adopted, compatibility of certain types of legislation with the EU Charter of Fundamental Rights will become increasingly important, as the Charter will become fully justiciable. However, there is no formal arrangement for alerting us when a measure being considered by either of the two European Committees raises a human rights issue within the UK.

104. The sheer volume of material makes it impossible to contemplate our Committee being able to carry out comprehensive human rights scrutiny of European legislation. But we consider that there is a case for arrangements to be put in place to enable us to be formally alerted, and for our opinion to be sought, when the EU Committees identify a human rights issue within the UK as being raised by a proposed EU measure. At present, the Commons European Scrutiny Committee may seek an opinion on any European Union document from any departmentally-related Commons select committee, the Select Committee on Public Administration, the Committee of Public Accounts and the Environmental Audit Committee.[83] There is in our view a strong case for the Joint Committee on Human Rights to be added to this list of opinion-giving committees.

105. We consider that, at the very least, in relation to all types of delegated legislation, it would be desirable for our successor committee to consider entering into discussions with relevant committees of both Houses early in the next Parliament to consider ways in which parliamentary scrutiny of all types of delegated legislation for human rights compatibility might be made more effective.

Remedial orders

BACKGROUND

106. A remedial order is a form of delegated or subordinate legislation which has the power to amend or repeal primary legislation in circumstances specified in the Human Rights Act. Under that Act, a Minister may make a remedial order in order to remove an incompatibility between domestic law and a Convention right.[84] The trigger for such an order may be that either (i) a UK court makes a declaration of incompatibility under section 4 of the Act (and no appeal is outstanding), or (ii) a ECtHR judgement, made after 2 October 2000 in proceedings against the UK, appears to indicate incompatibility. A Minister may then begin the process of removing the incompatibility by means of a remedial order if he or she considers that there are "compelling reasons"[85] for proceeding in that way, i.e. by means of a remedial order rather than by primary legislation.

107. Much of our governing terms of reference sets out the procedures which we are required to follow in considering remedial orders which may be laid before Parliament under the Human Rights Act. One such order was laid early in the Parliament.[86] We duly reported on it,[87] and then, on the basis of that experience, took the opportunity to put forward our views, in a further report,[88] on the process of making remedial orders and subjecting them to parliamentary scrutiny. That report recommended certain minor, but nonetheless significant, amendments to the provisions of the Human Rights Act and to the Standing Orders of the House of Commons.[89]

108. In our Making of Remedial Orders report we provided a full description of the statutory framework, set out in the Human Rights Act, which governs the powers to make remedial orders. We also set out the considerations which we believed should guide Ministers when deciding whether or not to proceed by means of remedial order, and in choosing between the urgent and non-urgent procedures. Under the urgent route, a Minister may make and lay an order which ceases to have effect if not approved by both Houses within a specified period. Under the non-urgent procedure, a Minister is first required 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. Our report considered in detail the parliamentary procedures applicable to remedial orders once laid before both Houses. For ease of reference we reproduce as an Annex the overall summary of the procedure on remedial orders which we included in an Annex to that report.[90]

AMENDMENTS OF SCHEDULE 2 TO THE HUMAN RIGHTS ACT

109. In our Making of Remedial Orders report we registered our general approval of the "super-affirmative" procedure which applies to remedial orders, and indeed expressed the view that it could be applied more widely to delegated legislation. We did however recommend two minor amendments to Schedule 2 to the Human Rights Act. Both of these amendments relate to the parliamentary procedure for approval of non-urgent remedial orders. Under this procedure, a proposal for an order must be laid before Parliament and a period of 60 days elapse for representations to be made, whereupon a draft order may be laid along with a statement of representations made and any changes effected to the proposed order as a result.[91] A further 60 days must elapse from the date of laying of the draft order before motions to approve it may be made in either House.

110. We saw no pressing need for the second 60-day period to run in full provided that we had reported on a draft order. We therefore proposed an amendment to the Human Rights Act to provide that a draft remedial order could be approved at any time after being laid before Parliament. To prevent the unwelcome consequence that a draft order could then be approved before we had reported on it, we proposed a related amendment to Commons Standing Orders to ensure that no motion for approval could be moved in that House until that time. It is already the case that Standing Order No. 72(1) of the House of Lords provides that an order may not be approved until the relevant committee of that House has reported, so there would be no requirement to amend that House's Standing Orders in consequence of the amendment to the Act.

111. The second amendment we proposed to the Act would have dealt with the problem that, for the purposes of calculating the periods between laying of orders and subsequent parliamentary approval in both urgent and non-urgent cases, the clock stops during periods when both Houses are adjourned for more than four days.[92] This means the clock may continue to run when one House is sitting and the other is adjourned, effectively reducing the time available for parliamentary scrutiny in some cases. We therefore recommended an amendment to paragraph 6 of Schedule 2 to the 1998 Act to provide that the clock would stop when either House was adjourned for more than four days. We pointed out that this would also bring the provisions of the Human Rights Act in relation to remedial orders into line with the equivalent provisions for regulatory reform orders, another category of "super-affirmative" delegated legislation.

112. The Government informed us at the time that it had no objection to either of these two changes, though it felt that in relation to the latter point that there should be more experience of the system in operation before changes were brought forward.[93]

113. During Session 2003-04 Lord Lester of Herne Hill, then a member of our committee and acting on our behalf, introduced a private Member's bill, the Human Rights Act (Making of Remedial Orders) Bill, which would have made these two amendments to the Human Rights Act. We regret that the Bill, after passing the House of Lords, was objected to in the House of Commons and did not make progress there. We continue to believe that these two minor tidying-up amendments would be of assistance to us, and to Parliament as a whole, in scrutinising remedial orders.

AMENDMENTS TO COMMONS STANDING ORDERS

114. In tandem with our proposals for amendment of the Human Rights Act itself we proposed a raft of amendments to Commons Standing Orders with the intention of closing possible loopholes in the procedure for approval of remedial orders and enhancing scrutiny in the House of Commons. We proposed amendments which would have had the effect of—

• precluding the theoretical possibility that a motion to approve an urgent procedure remedial order could be moved by the Government in the House before we had reported on it, either in relation to the original order during the initial 60-day period or in relation to the original or replacement order in the second 60-day period
• requiring a remedial order to be debated on the floor of the House, rather than in a standing committee, if we so recommended
• requiring the House to have to resolve to disagree with any recommendation we made that a remedial order should not be approved, in a debate lasting no more than three hours, before it could approve the order.

115. In devising these proposed procedures, we had in mind the similar procedures set out in Standing Order No. 18 of the House of Commons in relation to regulatory reform orders, the other main category of delegated legislation capable of making fast-track amendments to primary legislation and subject to "super-affirmative" approval procedures. We were pleased that the Commons Procedure Committee subsequently endorsed our recommendations, noting that "they make provision for the greater degree of scrutiny which we believe is appropriate in the case of 'super-affirmatives'; and they reflect the salutary and logical principle that conclusions arrived at in an initial committee review should help to determine the level and intensity of subsequent scrutiny".[94] However, the Government's reaction to our proposals was lukewarm,[95] and no action has been taken to allow the House of Commons to take a decision on our proposals.

116. As with our proposed amendments to the Human Rights Act itself, we continue to believe that our recommendations for changes to Commons Standing Orders make sense and would be desirable. We do however accept that the meagre flow of remedial orders, which we could not have predicted at the time we arrived at our recommendations, substantially reduces the urgency of such change. The Government told us that if we were to recommend that a particular remedial order be debated on the floor of the House, it would "do its utmost to find time for such a debate".[96] When or if our successor Committee makes such a recommendation, it will no doubt look to the Government to honour this undertaking.

MONITORING OF DECLARATIONS OF INCOMPATIBILITY AND STRASBOURG JUDGEMENTS

117. The Government has had far less recourse to remedial orders than many people expected at the time of passage of the Human Rights Act. The Naval Discipline Act 1957 (Remedial) Order 2004, made and laid under the urgent procedure provided for in section 10 and paragraph 4 of Schedule 2 to the Act, brought the total to two in a period of four-and-a-half years since the Act came into force.

118. Where incompatibilities arise from primary legislation rather than administrative practice, the Government may of course decide to remedy them by further primary legislation, and has done so on a number of occasions. There may be good reasons for doing so, as we have pointed out previously.[97] But whatever the reasons for the Government's apparent reluctance to use the remedial order procedure, that reluctance has inevitably led us to seek to monitor all those court judgements, domestically and at Strasbourg, that demonstrate an incompatibility between UK legislation and the Convention rights. Though we have not yet developed a fully systematic approach to this monitoring, we believe that the correspondence which we have engaged in with Ministers on this subject has led them to realise that findings of incompatibility cannot simply be left to accumulate with impunity, and that Parliament is keeping a close eye on the action, or inaction, of the Government.

119. In our Making of Remedial Orders report we made certain recommendations about how Ministers should conduct themselves in initially informing us when declarations of incompatibility are made in UK courts or judgements are made against the UK in the ECtHR,[98] and in informing us of subsequent action which they take with a view to remedying incompatibilities. As an Appendix to this report we publish the response we subsequently received from the Government concerning those latter recommendations.[99]

120. Our recommendations were intended to provide a framework and timetable which would allow us, acting on behalf of Parliament, to hold the Government to account for their actions following a Strasbourg judgement against the UK or a declaration of incompatibility by a UK court.

121. In the case of Strasbourg judgements holding that the UK had violated a person's Convention rights, we recommended that the Government should provide us with a copy of the judgement within a month, and within three months of the judgement should inform us of steps it had taken or intended to take to ensure that similar violations did not occur in the future.

122. For declarations of incompatibility made by UK courts, we recommended that Ministers should inform us of the court's decision within 14 days, providing a full text of the declaration and the court's judgement. We further recommended that Ministers should inform us of any decision by them not to appeal against a declaration of incompatibility and the reasons for that decision. A declaration of incompatibility becomes final, and may trigger the making of a remedial order, when anyone who might appeal has declared in writing that he or she does not intend to do so, or the time limit for an appeal has expired, or an appeal has been determined or abandoned.[100] We recommended that Ministers should, within a month, inform us of the result of any appeal, and provide us with a copy of the full text of any declaration of incompatibility made or upheld on appeal, together with the Government's preliminary view of the appropriate way to proceed in remedying the incompatibility.

123. We further recommended that final decisions about how to remedy incompatibilities should be made by the Government no later than six months after the end of legal proceedings.

124. In their response to our report, the Government accepted the principle of our recommendations, though they were unwilling to commit themselves absolutely to the timescales which we proposed. We were informed that our recommendations would be included in a revised version of the DCA's guide to Whitehall Departments on the Human Rights Act in order to get the Committee's thinking "onto the desks in all Departments as soon as possible".[101] Unfortunately, the guide has not yet been revised—the version on the DCA's website is still the second edition, dated February 2000. This delay may explain some of the difficulties we have encountered in attempting to monitor Strasbourg judgements and, though to a lesser extent, UK declarations of incompatibility.

125. Since June 2002 we have sought to follow up Strasbourg judgements which raise implementation issues in the UK, and have corresponded with responsible Government departments about action they have taken or intend to take. In the first instance our consideration has been based on lists of judgments sent to us periodically by the Foreign and Commonwealth Office. However, the responsible Government Departments have not as a rule been disciplined or rigorous in informing us of their intended actions in response to judgements, and we have often found ourselves having to chase them for information on those actions.

126. We have encountered some similar difficulties in relation to action taken following declarations of incompatibility by UK courts. However there have not been many of these and in general the Government has formally notified us of declarations of incompatibility, or we have independently noted them, when they have been made. Moreover, most of these incompatibilities have in fact been remedied, though the Government has not always been forthcoming in volunteering information to us when it considers that a remedy has been accomplished.

127. We provide more detailed information on the monitoring work we have carried out in Chapter 7 below. Should our successor Committee in the next Parliament wish to continue and build on this monitoring work we would advise them to consider seeking an early commitment from the Government that, across all Departments and including devolved administrations, they will substantially improve and systematise their provision of information to the Committee in accordance with our previous recommendations. We would add to those recommendations that, in cases where the Government does not eventually proceed by remedial order, it should formally notify the Committee at the conclusion of the process when it considers that an incompatibility has been remedied, whether by primary legislation or by other means.

128. We acknowledge that we could have increased public awareness of the need for action to be taken to remedy incompatibilities if we had published our correspondence with the Government on the subject before this time. If our successor Committee does continue our practice of seeking to monitor Strasbourg judgements and UK declarations of incompatibility, we would suggest that it could consider more regular publication of such correspondence, perhaps in the form of annual updating reports.

The effectiveness of our work

129. As we have already stated, we see the main objective of our legislative scrutiny as being to provide our advice on the human rights compatibility of proposed legislation in a timely manner for Parliament to be able to take it into account as it debates that legislation. Ideally we would wish to be in a position, towards the end of the Parliament, to arrive at an authoritative evaluation of our effectiveness in achieving this aim. However, we must candidly concede that we have not been able, given our resources and workload, to track each provision of a bill on which we have commented through its various stages and analyse what has happened to it, nor to monitor our success by reference to outcomes, such as numbers of amendments made to bills in response to our recommendations. Our successor committee might wish to consider whether, subject to available resources, it should try and develop a more systematic approach at least to recording whether a provision of a bill has been amended in the light of our comments.

130. There are some basic quantitative measurements of our influence on parliamentary legislative processes. On many occasions, with the agreement of the Member in charge of a bill, we have "tagged" our published reports to stages of debate on bills set out on the Commons Order Paper and the Lords Minute. A tag consists of an alert to Members that a report or other document relevant to a debate has been published. In addition, we keep information on the extent to which we have been successful in achieving our aim of reporting on bills before second reading in the second House.[102]

131. On the other hand, we have not systematically recorded points we have made which might usefully be followed-up for post-legislative scrutiny. There are some striking examples, however, of cases where we have issued a strong warning that legislative provisions are at risk of giving rise to clashes with Convention rights, and subsequent court cases have proved us right. One is in relation to section 55 of the Nationality, Immigration and Asylum Act 2002, which we pointed out was almost certain to lead to inhuman and degrading treatment of asylum seekers in contravention of Article 3. The Court of Appeal so held in Limbuela.[103] Another is in relation to Part 4 ATCSA 2001. The House of Lords agreed in A v Secretary of State for the Home Department.[104]

132. In many cases we have been successful in causing the Government to bring forward specific amendments to legislation, or to accept amendments moved by others, to take account of human rights considerations. We have also succeeded on occasions in getting the Government to agree to change guidance or codes of practice, or to change draft legislation before introducing it as a bill, rather than amending primary legislation itself. Often our concerns have been echoed by other committees and Members of both Houses, and by others, so we would certainly not claim that we have always been decisive in causing the Government to accept changes. Nevertheless, a non-exhaustive list of examples might include the following—

Enterprise Bill of Session 2001-02

The bill made provision for courts to make interim enforcement orders (sometimes called 'Stop Now orders') to halt allegedly unlawful activities of traders in carrying on business in breach of various legal requirements. In certain circumstances, the orders could be made ex parte and without notice to the trader. This could disrupt the trader's ability to carry on business, and would engage the right to quiet enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR. We considered the safeguards in the Bill and were particularly concerned that they did not expressly require the person applying for an order to make full disclosure to the judge of all relevant matters, including those favouring the trader. The Department took the view that the judge would insist on such disclosure, treating the application as analogous to an application for an injunction in civil proceedings. We were not convinced that a court would treat the statutory application for an order in the same way as it would treat an application for an interim injunction, and therefore reported our concern that the safeguards in the bill would be insufficient to ensure respect for rights under Article 1 Protocol 1. After giving further consideration to the issue, the Department agreed to move an amendment to the bill, and the Act now expressly imposes an obligation on the applicant to make full disclosure to the judge.[105]

Draft Civil Contingencies Bill of Session 2002-03

The Government removed clause 25 of the draft bill from the bill subsequently introduced in Session 2003-04 after criticism from us and from other committees. Clause 25 provided that a regulation made under Part 2 of the Bill would "be treated as if it were an Act of Parliament" for the purposes of the Human Rights Act, thus depriving people of legal remedies for an extensive range of potential violations of human rights. The regulations would not have been scrutinised by Parliament in the same detail as primary legislation, and would not have been able to be struck down by the courts as secondary legislation can be.[106]

Licensing Bill of Session 2002-03

The Government agreed an amendment to clause 134 excluding from criminal liability a person whose only involvement in an unlicensed regulated entertainment event is as a performer or participant. The organisers would remain liable to criminal sanctions.[107]

Nottingham City Council Bill (a private bill during Session 2003-03)

Nottingham City Council proposed a register of those dealing in second-hand goods in the city. Clause 14 of the bill conferred powers on police constables, and authorised officers of the council, to enter premises, inspect and seize goods, in order to ascertain whether an offence had been committed. We wrote to the promoters of the bill pointing out that this provision might violate the right to respect for private life and correspondence (Article 8 ECHR) because there was no protection for confidential material equivalent to that offered by section 9 of the Police and Criminal Evidence Act 1984. The promoters responded, and agreed to amend clause 14(7) broadening the protection for any such material.[108]

Courts Bill of Session 2002-03

Clause 87 of the bill empowered the Lord Chancellor to prescribe, by statutory instrument, the fees payable in respect of any case dealt with by the Supreme Court, county courts and magistrates' courts. We pointed out that the level of fees affected people's access to courts, which is an element of the right to a fair trial (Article 6.1 ECHR), and that consideration should be given according to people's ability to pay. Clause 87 allowed for wide consultation as to the level of fees, but also that the enabling order would simply be laid before Parliament, and would not be subject to negative or affirmative resolution. Following our report, and a report from the Select Committee on Delegated Powers and Regulatory Reform, the Lord Chancellor agreed to clause 87 being amended so that the relevant order was subject to negative resolution, and therefore enhanced scrutiny by Parliament.[109]

Criminal Justice Bill of Session 2002-03

Under the original clauses 143 and 144 of the bill, some defendants under the age of 17 would not have had the right to see the pre-sentence reports prepared on them. Their representatives, and or parents/guardians if present, would have access. We had concerns as to both access to the pre-sentence report, and also the courts' responsibilities to unrepresented children under the age of 17. We felt there was a risk the provisions might violate the defendant's right to a fair hearing (Article 6 ECHR), right to respect for private life (Article 8 ECHR) and the right to participate in decisions (Article 12 UNCRC). The Government responded and initially agreed to amend the bill so as to disclose the reports to defendants over the age of 14. We remained of the view that problems might remain in relation to unrepresented children, and suggested the bill be amended to require the court to appoint legal representatives for unrepresented child defendants. The Government agreed to introduce a general principle in the clauses that the pre-sentence report should be made available to all offenders under the age of 18, and to their parents or guardians, whether or not the defendant was legally represented, unless the court believed that disclosure would put the defendant at risk of serious harm.[110]

Crime (International Co-operation) Bill of Session 2002-03

We raised concerns about clause 83 of the bill, which inserted a new section 76A to the Regulation of Investigatory Powers Act 2000. This would have enabled a foreign police or customs officer to carry out directed or intrusive surveillance in the UK for up to five hours without authorisation, whilst investigating a wide range of crimes. We felt it could affect the right to respect for private and family life (Article 8 ECHR), particularly as the bill was not suitably clear on the nature of the offences being investigated, or the grounds for suspecting the person under surveillance, to be able to establish if the interference was proportionate. In responding, the Government initially said that as all the Schengen states were signatories to the ECHR, any surveillance carried out in any other state would be proportionate under the Convention. However, variation still existed between member countries as to the application of the ECHR, such as the effect of its standards on the lawfulness of police conduct, and the extent to which a foreign state was responsible for the extra-territorial action of its officials. Following an exchange of correspondence, the Government agreed to amend the bill so that a foreign officer would be required to contact a designated person on arrival in the UK, and that the surveillance would be limited to not entering private homes or places inaccessible to the public.[111]

Housing Bill of Session 2003-04

In our Eighth Report of Session 2003-04,[112] we raised three main areas of concern in relation to the human rights compatibility of the Bill. First, we were concerned that there was no requirement to give reasons for the choice of a particular type of enforcement action by a local housing authority under the Bill, could give rise to disproportionate interference with property rights under Article 1 of Protocol 1, and with the right to respect for the home under Article 8, and might also fail to satisfy the right to a fair hearing under Article 6.1. Secondly, we were concerned that the lack of procedural safeguards in the exercise of the investigatory powers under the Bill, including powers to require the production of documents and to enter premises, were subject to insufficient safeguards to ensure compliance with the right to respect for private life under Article 8. Thirdly, we considered that additional safeguards were needed to ensure that the requirement to introduce Home Information Packs did not intrude unjustifiably on Article 8 rights. In response to our report, the Government introduced an amendment to address our concerns in relation to Home Information Packs. However, it initially resisted amending the Bill to take account of our concerns on the first two points. In our Tenth Report of session 2003-04, we therefore reiterated our initial concerns on these matters.[113] As a result, the Government introduced a number of amendments to the Bill at committee stage in the House of Lords, which required local housing authorities to give reasons for their choice of a particular course of enforcement action and required written authorisation by a senior local authority officer for the exercise of investigatory powers including powers of entry.[114] In our Twentieth Report of the same Session, we raised an additional point on the Bill. Following the decision of the European Court of Human Rights in Connors v UK we wrote to the Government suggesting they introduce amendments to the bill regarding security of tenure on county council gypsy and traveller sites. The Minister agreed, and the bill was amended at report stage in the Lords, going some though not all the way towards remedying the incompatibility identified in Connors.[115]

Civil Partnership Bill of Session 2003-04

In our Fifteenth Report of Session 2003-04 we generally welcomed the Civil Partnership Bill as a measure enhancing protection for the fundamental human rights of same-sex partners, but called on the Government to provide justification for its statement in the Explanatory Notes to the bill that it intended to use the power contained in the bill to amend pensions legislation for surviving civil partners in such a way as to calculate the value of survivor's pensions for civil partners on the basis of future contributions only. This would have meant same-sex partners were treated less favourably than surviving spouses of married heterosexual couples. After initially maintaining the position which had been set out in the Explanatory Notes, the Government announced on second reading in the Commons that regulations would be introduced under the bill to provide for same-sex couples to accrue survivor pensions in public service schemes from 1988, treating them in the same way as married couples.[116]

Draft School Transport Bill of Session 2003-04

We considered the draft School Transport Bill in Session 2003-04,[117] and the bill proper when it was presented in 2004-05.[118] The bill made provision for local authorities to develop school travel schemes within a framework approved by the Secretary of State, or the National Assembly in Wales. The right to education (Article 2 Protocol 1 ECHR) does not create any obligation to make arrangements for school transport or to provide free school transport to enable children to attend the school of their parents' choice. We were satisfied that the bill did not raise significant issues relating to the right to education. However, we were concerned that if an LEA did provide transport for access to school, it had to do so in a non-discriminatory way (Article 14 ECHR).[119] This had particular relevance where an LEA provided transport for children to go to a denominational school, or to a Welsh-speaking school in Wales, which was not necessarily the nearest school, but did not provide similar schemes for children travelling to non-denominational or English-speaking schools. In its response, the Government agreed to expand the guidance in its prospectus for LEAs on the application of any scheme so as to encompass the points raised by us. The changes made satisfied us except in one regard,[120] and we particularly welcomed the constructive manner in which the Government had responded to our concerns, answered our questions and taken positive steps to include human rights issues into the guidance it provided to LEAs. This we considered to be thoroughly in keeping with the objectives of mainstreaming human rights into policy making throughout central and local Government.

Mental Capacity Bill of Sessions 2003-04 and 2004-05

The Mental Capacity Bill was introduced in June 2004, and carried over into Session 2004-05. In our Twenty-third Report of Session 2003-04,[121] we broadly welcomed the bill as a measure enhancing the human rights of people lacking capacity, but raised a number of concerns about the adequacy of various safeguards contained in the bill. In relation to the bill's provisions concerning the withholding or withdrawing of life-sustaining treatment, engaging rights under Articles 2, 3 and 8 ECHR, we recommended the tightening of safeguards in respect of advance decisions to refuse treatment and in respect of the bill's provisions which could have had the effect of permitting the withdrawal of life-sustaining treatment when no advance directive had been made, potentially breaching people's Convention rights. In response, the Government introduced an amendment to provide that an advance directive to refuse life-sustaining treatment should be made in writing. Following further recommendations we made in our Fourth Report of Session 2004-05,[122] the Government informed us by letter of 17 February 2005 of enhanced safeguards relating to specific refusal of artificial nutrition and hydration (ANH) and the withdrawal of ANH where no advance decision is made.

31   Sent to the Minister who has signed the section 19 statement Back

32   Cf. Twenty-third Report of 2001-02, Nationality, Immigration and Asylum Bill: Further Report, HL Paper 176, HC 1255, dealing with amendments proposed by the Government at report stage of the bill in the House of Lords. Back

33   Cf. Twenty-fourth Report of 2001-02, Adoption and Children Bill: As amended by the House of Lords on Report, dealing with a non-Government amendment made to the bill at report stage in the House of Lords. Back

34   See tables in Annex 2 for information on our success in achieving this target Back

35   The Committee had the opportunity to meet ten times between 31 January and 30 April 2001 Back

36   The Hunting Bill, Private Security Industry Bill, Regulatory Reform Bill and the Social Security Fraud Bill Back

37   See First Special Report of Session 2000-01, Criminal Justice and Police Bill, HL Paper 42, HC 296; First Report of Session 2000-01, Criminal Justice and Police Bill, HL Paper 69, HC 427; Third Special Report of Session 2000-01, Scrutiny of Bills, HL Paper 73, HC 448; Back

38   For example, Second Report of Session 2002-03, Criminal Justice Bill, HL Paper 40, HC 374 Back

39   See Nineteenth Report of Session 2003-04, The Children Bill, Hl Paper 161, HC 537; Sixteenth Report of Session 2004-05, Equality Bill, HL Paper 98, HC 497 Back

40   See Annex 3 for a list of the reports dealing with particular bills over the course of the Parliament Back

41   Third Report of Session 2003-04, Scrutiny of Bills: Progress Report, HL Paper 23, HC 252 Back

42   ibid. Back

43   Fifth Report of Session 2003-04, Asylum and Immigration (Treatment of Claimants, etc.) Bill, HL Paper 35, HC 304. The reply from the Government is published as Appendix 1 in this report. Back

44   ibid., Appendix 1, p. 45 Back

45   Home Affairs Committee, First Report of Session 2003-04, Asylum & Immigration (Treatment of Claimants, etc.) Bill, HC 109; and the Constitutional Affairs Committee, Second Report of Session 2003-04, Asylum and Immigration Appeals, HC 211 Back

46   For example, see HC Deb., 1 March 2004, col. 663 (Mr Mark Oaten MP) or HC Deb., 1 March 2004, col. 674 (Mr Tony Wright MP) Back

47   HC Deb., 1 March 2004, col. 701 Back

48   HC Deb., 15 March 2004, col. 51 "I have listened carefully to the arguments put by the senior judiciary, including those of the Lord Chief justice, the noble and learned Lord, Lord Woolf. I have also talked to my predecessor, my noble and learned friend Lord Irvine of Lairg, who has forcibly made representations about the Bill. I have read closely the arguments advanced in debate in another place, as well as the report by the Select Committee for Constitutional Affairs and by the Joint Committee on Human Rights. I believe that we can have the necessary judicial oversight of the system by the Higher Courts and obtain the aims of speed and reduction in abuse." Back

49   Thirteenth Report of Session 2003-04, Scrutiny of Bills: Progress Report, HL Paper 102, HC 640 Back

50   Fourteenth Report of Session 2003-04, Asylum & Immigration (Treatment of Claimants, etc.) Bill: New Clauses, HL Paper 130, HC 828. See paras. 1-3 Back

51   Ninth Report of Session 2004-05, Prevention of Terrorism Bill: Preliminary Report, HL Paper 61, HC 389 Back

52   Tenth Report of Session 2004-05, Prevention of Terrorism Bill, HL Paper 68, HC 334 Back

53   ibid., para. 1 Back

54   There is no human rights equivalent at the UK Parliament level of the parliamentary scrutiny reserve which applies to agreement by Ministers to European legislation in the Council of Ministers. Nor is there any equivalent for our committee in relation to bills of the informal understanding between the Government and the Joint Committee on Statutory Instruments that motions to approve S.I.s will not be taken before the JCSI has reported on them. It is much less likely that a Government would be willing to place the timing of the Houses' consideration of primary legislation effectively under the control of one committee by agreeing that a stage of a bill could not be taken before that committee had reported. Back

55   But see our Press Notice of 9 December 2004, Call for Evidence: Scrutiny of Bills in the new Parliamentary Session Back

56   Section 19 Statements: Revised Guidance for Departments. This guidance replaces paragraph 39 of the Human Rights Act Guidance for Departments (second edition) on the information to be disclosed in the Explanatory Notes to a Bill in relation to human rights issues. Back

57   For example, Fourth Report of Session 2004-05, Scrutiny: First Progress Report, HL Paper 26, HC 224, paras 1.16-1.17 Back

58   Fifth Report of Session 2004-05, Identity Cards Bill, HL Paper 35, HC 283, para. 2 Back

59   Cabinet Office Guide to Legislative Procedures, paras. 10.9-10.12 Back

60   For a recent example, see the Home Office's memorandum on the Serious Organised Crime and Police Bill of Session 2004-05, Eighth Report of Session 2004-05. Scrutiny: Fourth Progress Report, HL Paper 60, HC 388, Appendix 2a, at paragraphs 5, 6, 24, 25, 27. Back

61   See for example the comments from the Home Secretary on the regulations and orders which could be made under the Identity Cards Bill of Session 2004-05: "We will be under a duty, under section 6 of the Human Rights Act, to act compatibly in making subordinate legislation and if we did not do so the courts will have the power to strike it down"; Eighth Report of Session 2004-05, op cit., p. 62 Back

62   Para. 10.28. See also Appendix 1b, a Government memorandum on the subject of drafting of legislation and safeguards for human rights submitted in response to a letter from our Chairman in 2002. Back

63   In addition there may be a number of bills carried over from the previous session. Back

64   Annex 2 Back

65   In Session 2002-03, 93 PMBs were introduced in the Commons, of which 62 were printed and scrutinised by the Committee. Thirteen of these received Royal Assent, and two more received a second reading in the Commons but failed to proceed to the Lords. In the same Session only 16 PMBs were introduced in the Lords, none of which received Royal Assent. In 2003-04, 84 PMBs were introduced in the Commons, 60 were printed and scrutinised by the Committee, five of which received Royal Assent, and two of which received a second reading but failed to proceed to the Lords. Fifteen were introduced and printed in the Lords in the same Session, yet again, none received Royal Assent. Back

66   Fourteenth Report of Session 2001-02, op cit., para. 3 Back

67   ibid., para. 4 Back

68   In Session 2004-05, given the volume and speed of Government legislation, for example, we did not report on a PMB until our Eighth and Final Scrutiny Progress Report. Back

69   In Session 2004-05 there were six in total (including one that was withdrawn before Second Reading and no bills revived from the previous session). Back

70   For example the Mersey Tunnels Bill was originally introduced on 22 January 2002, and finally received Royal Assent on 1 July 2004. Back

71   See Fourteenth Report of Session 2001-02, Scrutiny of Bills: Private Members' Bill and Private Bills, HL Paper 93, HC 674, paras. 22 and 23 Back

72   Standing Order 38 (3) relating to Private Business in the House of Commons and the House of Lords Back

73   Standing Order 98A relating to Private Business in the House of Lords; Standing Order 169A relating to Private Business in the House of Commons Back

74   See, for example, our Nineteenth Report of Session 2001-02, Draft Communications Bill, HL Paper 149, HC 1102, and Twenty-fifth Report of Session 2001-02, Draft Mental Health Bill, HL Paper 181, HC 1294 Back

75   See Nineteenth Report of Session 2002-03, Draft Gender Recognition Bill, HL Paper 188, HC 1276 Back

76   The latest example is the provision in the Education Bill of Session 2004-05 authorising the creation of a school workforce database, but leaving most of the detailed provision to be introduced by way of regulations. There are numerous previous examples in our Reports. Back

77   These have come up in February/March each year: see Second Reports of Session 2001-02; Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372 and Fifth Report of Session 2001-02; Anti-terrorism, Crime and Security Bill: Further Report, HL Paper 51, HC 420; Fifth Report of Session 2002-03, Continuance in Force of Sections 21 to 23 of the Anti-terrorism, Crime and Security Act 2001, HL Paper 59, HC 462; Sixth Report of 2003-04, Anti-terrorism, Crime and Security Act 2001: Statutory Review and Continuance of Part 4, HL Paper 38, HC 381. We also reported on the Codes of Practice on the retention of communications data: see Sixteenth Report of 2002-03, Draft Voluntary Code of Practice on Retention of Communications Data under Part 11 of the Anti-terrorism, Crime and Security Act 2001, HL Paper 181, HC 1272. Back

78   See Eighteenth Report of 2003-04, Review of Counter-terrorism Powers, HL Paper 158, HC 713 Back

79   Ninth Report of Session 2004-05, Prevention of Terrorism Bill: Preliminary Report, HL Paper 61, HC 389 and Tenth Report of Session 2004-05, Prevention of Terrorism Bill, HL Paper 68, HC 334 Back

80   Twenty-second Report of Session 2003-04, Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, HL Paper 190, HC 1212 Back

81   Second Report of Session 2004-05, The draft Criminal Justice Act 2003 (Categories of Offences) Order 2004, HL Paper 9, HC 107 Back

82   Rec (2004) 5 on the verification of the Convention compatibility of draft laws, existing laws and administrative practice (adopted by the Committee of Ministers on 12^th May 2004 at its 114^th Session): see our First Report of Session 2004-05, Protocol No. 14 to the European Convention on Human Rights, HL Paper 8, HC 106, paras. 50 to 53 Back

83   House of Commons Standing Order No. 143(11) and (12) Back

84   For a full description of the statutory and parliamentary procedures applicable to remedial orders, see our Seventh Report of Session 2001-02, The Making of Remedial Orders, HL Paper 58, HC 473 Back

85   Human Rights Act 1998, section 10(6) Back

86   The Mental Health Act 1983 (Remedial) Order 2001, S.I., 2001, No. 3712 Back

87   Sixth Report of Session 2001-02, The Mental Health Act 1983 (Remedial) Order 2001, HL Paper 57, HC 472 Back

88   Seventh Report of Session 2001-02, The Making of Remedial Orders, HL Paper 58, HC 473 Back

89   Annex 4 Back

90   Annex 5 Back

91   Paragraph 3 of Schedule 10 to the 1998 Act Back

92   Paragraph 6 of Schedule 10 to the 1998 Act Back

93   Appendix 2, paras. 16 and 17 Back

94   First Report from the Procedure Committee, Session 2001-02, Making Remedial Orders: Recommendations by the Joint Committee on Human Rights, HC 626, para. 8 Back

95   Appendix 2, paras 9 to 14 Back

96   ibid., para. 13 Back

97   Seventh Report of Session 2001-02, op cit., para. 32 Back

98   ibid., Annex C Back

99   Appendix 2 Back

100   Section 10(1) of the Human Rights Act 1998 Back

101   Appendix 2, para. 7 Back

102   Annex 2 Back

103   Secretary of State for the Home Department v Limbuela, Tesema and Adam [2004] EWCA Civ 540 Back

104   [2004] UKHL 56 Back

105   Twenty-sixth Report of Session 2001-02, Scrutiny of Bills: Final Progress Report, HL Paper 182, HC 1295, para. 3 Back

106   Fifteenth Report of Session 2002-03, Scrutiny of Bills and Draft Bills: Further Progress Report, HL Paper 149, HC 1005; Fourth Report of Session 2003-04, Scrutiny of Bills: Second Progress Report, HL Paper 34, HC 303, paras. 1.5-1.9 Back

107   Seventh Report of Session 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 74, HC 547, paras. 31-35 Back

108   Fourth Report of Session 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 50, HC 397, paras. 59-60 Back

109   See our Fourth Report of Session 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 50, HC 397, Ev 19; and the Second Report of the Select Committee on Delegated Powers and Regulatory Reform, Session 2002-03, HL Paper 20, paras. 9-19 Back

110   Seventh Report of Session 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 74, HC 547 Back

111   ibid., paras. 24-30 and Ev 7-9 Back

112   Eighth Report of Session 2003-04, Scrutiny of Bills: Third Progress Report, HL Paper 49, HC 427 Back

113   Tenth Report of Session 2002-03, Scrutiny of Bills: Fourth Progress Report, HL Paper 64, HC 503 Back

114   Twentieth Report of Session 2003-04, Scrutiny of Bills: Eighth Progress Report, HL Paper 182, HC 1187 Back

115   Twenty-third Report of Session 2003-04, Scrutiny of Bills: Final Progress Report, HL Paper 210, HC 1282, paras. 3.1-3.2 Back

116   Twentieth Report of Session 2003-04, Scrutiny of Bills: Eighth Progress Report, HL Paper 182, HC 1182, paras. 2.6-2.11 Back

117   Seventeenth Report of Session 2003-04, Scrutiny of Bills: Seventh Progress Report, HL Paper 157, HC 999, paras. 4.1-4.25; and Twentieth Report of Session 2003-04, Scrutiny of Bills: Eighth Progress Report, HL Paper 182, HC 1187, paras. 6.1-6.12 Back

118   Fourth Report of Session 2004-05, Scrutiny of Bills: First Progress Report, HL Paper 26, HC 224, paras. 5.1-5.4 Back

119   Article 14 states, "The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion …" Back

120   See our Twentieth Report of Session 2003-04, op cit., HL Paper 182, HC 1187, paras. 6.4-6.12 Back

121   Twenty-third Report of Session 2003-04, Scrutiny of Bills: Final Progress Report, HL Paper 210, HC 1282 Back

122   Fourth Report of Session 2004-05, Scrutiny: First Progress Report, HL Paper 26, HC 224, paras. 4.1-4.71 and Appendix 4 Back