Human Rights Act 1998 (Making of Remedial Orders) Amendment Bill [H.L.] (Hansard, 6 April 2004)

§ Lord Lester of Herne Hill
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

§ Lord Avebury
My Lords, on Second Reading, the noble Lord, Lord Filkin, said that the Government could see the case for changes that were recommended by the JCHR, which are the subject of this Bill, and they would not oppose them if they found favour with the House. They did wish, however, to ensure that any decision was made in an "informed way" by the House. That applied particularly to Clause 1(1), although I am not absolutely sure why the Minister was not then equally interested in the remainder of the clause, where the proposed changes in the wording to 1774 Schedule 2 are found. I hope the Minister will think that the debate we are about to have will fully discharge the duty that your Lordships have to thoroughly examine the proposals in this Bill.
The noble Lord, Lord Lester, provided a very helpful explanatory memorandum, reminding the House of a procedure for making remedial orders of any legislation, primary or secondary, which has been declared by a higher court to be incompatible with any ECHR right forming part of our law, or which appears to a Minister to be incompatible with such a right in consequence of a finding against the UK by the European Court of Human Rights.
These remedial orders follow one or other of two procedures, which are set out in Schedule 2 of the Human Rights Act. If the order declares the matter to be urgent, then, under Paragraph 2(b), it can be made without a draft being approved by Parliament, and that remains unchanged by this Bill. In other cases, the proposed draft has to be laid before Parliament for 60 days, and then the actual draft must be laid, together with a statement on any representations made and any changes to the draft order which are made in the light of those representations. I would be interested to know from the Minister how many remedial orders have been made under each of those two headings, if the noble Lord has the figures. In the case of urgency, what opportunity does the JCHR have for studying and commenting on the proposal? I recognise that, in this Bill, we are talking about only the non-urgent procedures under Clause 2(a).
As I understand it, the noble Lord seeks to alter the balance between the two 60-day periods which are provided for under the scheme. He wishes to lengthen the first period to take account of days when Parliament is not sitting, in order to give the JCHR a better opportunity of collecting voices and making representations while the order is still in draft, and correspondingly shortening the second period when, for all practical purposes, the final text has been settled. I believe there have been occasions in the past when the JCHR has been rather pressed to examine an order and to make its report in time, because of the timing of the order in relation to parliamentary recesses. Maybe my noble friend Lord Lester could say something about that.
I turn to the second period of 60 days. It can be assumed that the JCHR would have already examined the draft—and presumably in every case that the draft would have been altered in the light of its recommendations. The effect is, as the committee explained in its report on the making of remedial orders quoted in the explanatory memorandum, to delay the securing of convention rights. Will the noble Lord, Lord Lester, explain at what point the order would be approved if the Bill is passed?

§ Lord Lester of Herne Hill
I am very grateful to my noble friend Lord Avebury for having enabled us to have an informed debate on this technical but nevertheless important Bill. It would be helpful to have some indication from the Minister as to whether he 1775 regards the short debate as being satisfactory for that purpose. I shall do my best briefly to add to what was said at Second Reading. I should make it clear that, although I am the midwife of the Bill, it is a Bill put forward on behalf of the whole Joint Committee of Human Rights.
As my noble friend said, on the procedures themselves, there are two ways in which an order can be made. In urgent cases, an order may be made without first being approved in draft; I refer noble Lords to paragraphs (2)(b) and (4) of Schedule 2 to the Human Rights Act. In other cases, paragraphs (2)(a) and (3) lay down the following procedure. Since it was not mentioned at Second Reading, I may be forgiven for summarising it.
First, a proposal for the order containing a draft of the proposed order and specified information must be laid before Parliament. Then 60 days must elapse, beginning with the day on which the proposal was laid. A draft order must then be laid before Parliament, with a statement summarising any representations received after the 60-day period, and giving details of any changes made to the draft order in the light of the representations. The draft order must then lie before each House for at least 60 days, after which it must be approved by a resolution of each House. The order may then be made.
The periods of 60 days are calculated without taking account of any period in which Parliament is prorogued or dissolved, or both Houses are adjourned for more than four days. I refer noble Lords to paragraph (6) of Schedule 2 to the Act.
The Joint Committee on Human Rights is responsible, under its order of appointment from this House and under Standing Order No. 152B of the House of Commons, for scrutinising proposals for draft remedial orders, draft remedial orders themselves and remedial orders made by the urgent procedure. It is also responsible for reporting to each House whether they meet certain tests, and its recommendations as to whether they should be approved in the form proposed by the Minister or with amendments, or whether they should be disapproved.
In December 2001, the committee drew attention to two implications of the provisions that arose from considering the first proposal for a draft remedial order laid under the 1998 Act. Noble Lords may see House of Lords Paper 58 for that. On the last occasion that we debated this matter, I explained the first problem relating to the words "both Houses", and the way in which that shortens rather than lengthens parliamentary scrutiny. I do not need to say any more about that at this stage; it cannot be, in my submission, controversial. The second problem relates to the 60-day period, which I also mentioned on the last occasion that this matter was debated. Before I come back to that, I need to answer the first of the questions put to me by my noble friend Lord Avebury.
My noble friend asked how many remedial orders had been made, whether they had been treated as urgent or non-urgent and whether the Joint Committee on Human Rights had a chance to 1776 scrutinise them. The answer is that two remedial orders have been made—the Mental Health Act 1983 (Remedial Order) 2001 and the Naval Discipline Act 1957 (Remedial Order) 2004. Both orders were made using the urgent procedure. The mental health order originally started life under the non-urgent procedure but, when the Joint Committee on Human Rights considered the matter, we recommended that it was more appropriate to use the urgent procedure. The relevant Minister then withdrew the proposal for the draft order and instead laid an urgent procedure order before Parliament.
The Naval Discipline Act 1957 (Remedial Order) 2004 is another order made under special procedures set out in the Human Rights Act to allow for the speedy remedying of an incompatibility between UK law and the convention rights established under that Act, as determined by the European Court of Human Rights.
The Joint Committee on Human Rights is required to report to each House on each case as regards the use of the powers by the Minister. That is another parliamentary safeguard. I refer the House to the Joint Committee on Human Rights 9th Report 2003–04 where we explained in more detail the joint committee's responsibilities. We explained: Under our order of appointment from … [this House] and Standing Order No. 152B of the other place, we have two functions in relation to remedial orders. First, we act as guarantor of the propriety of the use of the power to make remedial orders under section 10 and Schedule 2 of the Human Rights Act 1998. Secondly, we act in place of the Joint Committee on Statutory Instruments to ensure that the order meets the criteria of formal propriety which normally fall within the purview of that Committee. We explained our responsibilities in more detail in our Seventh Report of 2001–02". I would bore and tire the House unnecessarily if I went into the details. Then we explained: When a remedial order is made by the urgent procedure, [the Committee] are required to report at least once during the 120 days within which the Order must be approved by affirmative resolution of both Houses if it is not to lapse. In practice, we report in the first 60 days, so that the Minister can take account of our report when deciding whether to withdraw the order and make and lay a new one. The matters on which the Committee must report are: …whether the order imposes a charge on public revenues or requires payments to be made to a public authority: … whether there is doubt as to whether it is intra vires; … whether it appears to make unusual or unexpected use of the power under which it is made; …whether for any reasons its purport calls for further elucidation; … whether its drafting appears to be defective; … whether there appears to have been unjustifiable delay in the publication or laying of the order, or in notifying the Speaker and Lord Chancellor where the instrument has come into force before being laid; and … whether the order should be approved in the form in which it is originally laid before Parliament, or should be replaced by a modified order, or should not be approved. In practice [the Joint Committee] also report whether we consider it was proper to proceed by way of remedial order". rather than, for example, by primary legislation. The report continues: Section 10(2) of the Human Rights Act provides that a Minister should only proceed to remedy the incompatibility by means of a remedial order, rather than by primary legislation, if he or she 'considers that there are compelling reasons' to do so. We also consider whether, in our view, it was proper to use the urgent procedure". 1777 I apologise for having taken so long on such an apparently dull subject. I hope that that account fully explains the rather elaborate and good general procedure that ensures that a watchdog committee scrutinises remedial orders in draft or otherwise very thoroughly and reports to the Minister conscientiously. Then the committee and the Minister make sure that the right procedure is followed and the House has a fully adequate period to consider the matter. So far as concerns the 60-day period, having looked at the matter, the committee considered that it was unnecessary to insist on 60 days having expired before the draft order could be pursued if the committee had reported that it would be appropriate to approve the draft order in the form in which it had been laid. All of that was explained at Second Reading so I do not need to refer to it.
I hope that I have answered all the questions. I have one small and very pedantic point to mention, not because I expect the Minister to be able to deal with it, but because his advisers might wish to consider the matter. It is a non-controversial point. Reading Schedule 2 to the 1998 Act carefully, I wonder whether the heading to paragraph 4 should read "Urgent cases" when the paragraph deals with urgent and non-urgent cases. If I am right, that is the kind of tedious, pedantic tidying up that only a lawyer might mention. It may be wholly unnecessary, but perhaps the Home Office could consider the point before the Bill leaves this House. With that I hope that my noble friend will be satisfied.

§ Lord Campbell of Alloway
I support the Bill as drafted, and as explained totally accurately by the noble Lord, Lord Lester of Herne Hill. I declare my interest as a member of the committee that approved it.

§ Lord Evans of Temple Guiting
The Government are genuinely neutral on the amendment. Noble Lords who attended our commendably brief Second Reading debate will recall that the noble Lord, Lord Lester, agreed with my noble friend Lord Filkin that an opportunity should be provided for the House to debate the shortening of the period of time available to Parliament to scrutinise proposed non-urgent remedial orders. The debate on whether the clause stand part, as proposed by the noble Lord, Lord Avebury, provided that opportunity. I have listened with great interest to what your Lordships have said.