This post is the fourth in my look at the Independent Review of the Human Rights Act 1998.
The review was commissioned by the Secretary of State for Justice (then Robert Buckland QC MP) on 7 December 2020 and was conducted by a panel of 8 including the Chair - former Lord Justice of Appeal, Sir Peter Gross. Their report - finally revealed by the Secretary of State for Justice (now Dominic Raab MP) on 14 December 2021 - extends to 580 pages.
Independent Review of Human Rights Act 1998 - report - (580 pages pdf)
This post looks at Chapter 9 of the report - Remedial Orders. This appears to logically follow on from consideration of the topics in Post 3 - (i.e. Sections 3 and 4 of the Human Rights Act 1998 ).
This post then looks at Chapter 7 of the report - Subordinate Legislation.
* Remedial Orders *
A Remedial Order can arise in two ways:
a) following a UK court making a Declaration of Incompatibility;
b) following the European Court of Human Rights ruling that the UK is in breach of the convention.
In either case, the finding of incompatibility could be addressed either by new primary legislation or by a Remedial Order under section 10 (and Schedule 2) of the HRA. Alternatively, Ministers may choose not to act in either of those ways.
Section 10(3) is an example of "Henry VIII powers" in that, in some circumstances, a Remedial Order can amend primary legislation. A Remedial Order has been used on one occasion to amend the Human Rights Act itself.
That was in 2020 when the Human Rights Act 1998 (Remedial Order) 2020 was made - (SI: 2020/1160). The government acted in this way following the ECtHR decision in Hammerton v UK [2016] ECHR 272. The gap of over 4 years between the Hammerton judgment and the Remedial Order is noteworthy but is not commented upon in the report.
The report notes section 10(2) - "(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility."
Hence, a Minister has to consider that there are "compelling reasons" to proceed by way of remedial order as opposed to amending the law by introducing a Bill.
The procedure involved in making remedial orders is somewhat convoluted and is set out in Schedule 2 to the HRA and includes provision for an "urgent procedure."
The Joint Committee on Human Rights considered that there was "no appetite for a more stringent parliamentary process" but, as shown by responses to the Panel's call for evidence, there was support for some reforms (see report para 24). For example, Queen's University Belfast wished to see Ministers explain why they had chosen to use a remedial order rather than a Bill.
The Panel rejected a number of suggestions including no change - see paras 26, 27, 32, 36 and 38.
At para 45 the Panel recommended that section 10 of the HRA be amended to provide that it cannot be utilised to amend the HRA itself and that the HRA can only be amended by way of primary legislation.
The panel also recommended improved parliamentary scrutiny - see paras 51 to 56. This amounts to inviting the Joint Committee on Human Rights to revisit principles it set out in December 2001 - "Making of Remedial Orders" - and, in particular, to consider whether they need to be updated or expanded. The JCHR should also, in the Panel's view, consider the best way of ensuring that proper account of them is taken in future.
* Subordinate Legislation *
Some general points -
"Subordinate" - (or delegated or secondary) - legislation is of immense importance and there is a huge volume of it. Such legislation usually appears in the form a "Statutory Instruments". Some idea of the volume may be seen HERE. In practice, there is only minimal parliamentary scrutiny of most of this legislation.
The Hansard Society has done excellent work in keeping track of subordinate legislation made in connection with the coronavirus pandemic - Coronavirus Statutory Instruments Dashboard. The Society is undertaking a Delegated Legislation Review describing the issue as "one of the most important constitutional ad legal challenges of our time."
Every item of subordinate legislation must be made under a power granted by Parliament in an Act of Parliament. For instance, much of the coronavirus legislation has been made under power in the Public Health (Control of Disease) Act 1984 (as amended). Further, the subordinate legislation must not go beyond the powers provided for in the parent Act. It is a long-standing principle of law that the courts may quash subordinate legislation found to be "ultra vires" - that is, beyond the powers granted by the parent Act.
By contrast, the courts have no power to rule that primary legislation is in any way invalid and the HRA maintained the principle of parliamentary sovereignty.
The government's question to the Panel - ‘Under the current framework, how have courts and tribunals dealt with provisions of subordinate legislation that are incompatible with the HRA Convention rights? Is any change required?
Sections 3, 6 and 8 of the HRA:
Section 3 is the requirement to interpret legislation, so far as it is possible to do so, in a way which is compatible with the Convention rights and that applies to primary legislation and subordinate legislation whenever enacted.
Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention rights. [Section 6(2) contains two instances where 6(1) does not apply].
If the court finds any act (or proposed act) of a public authority to be unlawful then the court may grant "such relief or remedy, or make such order, within its powers as it considers just and appropriate."
Approach taken by courts -
The report discusses at some length how the courts have approached challenges to subordinate legislation. Contrary to what is sometimes claimed, the report says that the overall picture is one of caution and respect for the differing institutional competencies of government and the courts. Since 2014, there have only been 14 successful challenges based on the HRA to subordinate legislation -
"the picture is stark: two recorded challenges succeeded on average a year from 2014, against a background where each year the number of new statutory instruments numbers in the thousands: on average there were 3,000 a year."
Where incompatibility is found, the courts do not necessarily quash the subordinate legislation and nothing in the HRA requires them to do so. The government can be given space to implement the court' decision. Usually, the court simply declares that the offending legislation violates human rights, Such a declaration does not affect the validity of the legislation. It appears that judges are aware that quashing an order can have significant and disruptive effects.
The present day approach to subordinate legislation is set out in RR v Secretary of State for Work and Pensions [2019] UKSC 52.
After detailed discussion - at paras. 24 to 41 - the panel summarised the approach of the courts -
"UK Courts have rarely quashed subordinate legislation on the basis that it is not compatible with Convention rights. They will not quash such legislation unless it is incompatible in all or nearly cases where it applies.
UK Courts, as a starting point, ought to disregard subordinate legislation that is incompatible with Convention rights. However, they have been at pains to limit the impact of the disregard option. As such, they may use their discretion under section 8 of the HRA to provide a remedy that is ‘just and appropriate’ in the circumstances, i.e., a declaration, disapplication of the subordinate legislation or a provision in it in a specific way to enable the provision to continue to apply in other cases where that would not be incompatible with Convention rights."
Reform -
A number of options for reform were put forward in the responses to the Call for Evidence. Several were rejected including no change - paras. 48, 49, 52 and 55. Two possible reforms were not recommended - including requiring Ministers to give certificates of compatibility when making subordinate legislation - see paras. 66 and 71.
The Panel made two recommendations.
Amendment of the HRA to enable courts to issue suspended and prospective quashing orders. That would be in line with the proposals in the Judicial Review and Courts Bill currently before Parliament - previous post 22 July 2021.
The other recommendation is that there be a database to record judgments where subordinate legislation is disapplied.
Continued HERE .....
23 December 2021
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