Human Rights Bill [H.L.] EMSC ST “ENFORMATION as ge “ne, TA 07 New99 |Y 2 uan ge WeliGome Cenire fo: . EXPLANATORY AND FINANCIAL MEMORANDUM The Bill gives further effect in domestic law to rights and freedoms guaranteed under the European Convention on Hurfian Rights, and makes provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights. Clause | specifies those Articles of the Convention and the First Protocol to it (“the Convention rights”) which are given further effect by the Bill (subject to any designated derogation or reservation, to which clauses 14 and 15 refer). These Articles are set out in Schedule I. Clause I also provides that the clause and Schedule ] may be amended by order to reflect the effect of a protocol to the Convention which the United Kingdom has ratified, or signed with a view to ratification. Clause 2 provides that a court or tribunal determining a question in connection with a Convention right must take account of relevant judgments, decisions, declarations and opinions made or given by the European Commission and Court of Human Rights and the Committee of Ministers of the Council of Europe. Clause 3 provides that primary and subordinate legislation, whenever enacted, must as far as possible be read and given effect in a way which is compatible with the Convention rights. It also provides that this does not affect the validity, continuing operation or enforcement of any incompatible primary legislation, or any incompatible subordinate legislation if primary legislation prevents the removal of the incompatibility. Clause 4 provides that specified courts may make a “declaration of incompatibility” where they are satisfied that a provision of primary legislation is incompatible with the Convention rights, or that a provision of subordinate legislation is incompatible and the primary legislation under which it was made prevents the removal of that incompatibility. It also provides that such a declaration does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given. Clause 5 gives the Crown the right to have notice that a court is considering whether or not to make a declaration of incompatibility, and entitles the Crown to be joined as a party to the proceedings. Clause 6 makes it unlawful for a public authority to act in a way which is incompatible with the Convention rights, unless that would be inconsistent with the effect of primary legislation. It also makes provision as to public bodies which are to be regarded as a “public authority” for the purposes of the Bill. Clause 7 provides that a person who claims that a public authority has acted (or proposes to act) in a way which is unlawful, because incompatible HL Bill 38 52/1 ii Human Rights with the Convention rights, may bring proceedings against that authority under the Bill, or may rely on the Convention rights in any legal proceedings. Such a person may only bring proceedings or rely on the Convention rights if he is (or would be) a victim of the unlawful act. Clause 8 provides that a court or tribunal may grant such relief or remedy, or make such order, within its jurisdiction as it considers appropriate where it finds an authority to have acted unlawfully. It also specifies the circumstances in which an award of damages may be made. Clause 9 provides that proceedings against a court or tribunal under clause 7 may be brought only by way of appeal or on an application for judicial review and that damages may not be awarded in proceedings under the Bill in relation to an act of a court or tribunal, and preserves judicial immunity. Clause 10 enables the amendment by order of a provision of legislation which has been declared incompatible with the Convention rights or which, in view of a finding of the European Court of Human Rights, appears to a Minister of the Crown to be incompatible, so as to remove the incompatibility or possible incompatibility. Clause 11 makes further provision with respect to such a remedial order and also provides that no person shall be guilty of an offence solely as a result of any retrospective effect of such an order. Clause 12 provides that a remedial order is to be subject to the affirmative resolution procedure, and that, except in urgent cases, the order must be approved in draft. Where not approved in draft before it is made, it ceases to have effect if not approved by Parliament within 40 sitting days of it having been made. Clause 13 provides that a person may rely on a Convention right without prejudice to any other right or freedom conferred on him, and that clauses 7 to 9 do not affect the right of any person to make any claim or bring any proceedings which he could make or bring apart from those clauses. Clause 14 makes provision in respect of a “designated derogation”, which it defines as the United Kingdom’s derogation from Article 5(3) of the Convention (the text of which is set out in Part I of Schedule 2) and any other derogation from an Article of the Convention or of any protocol to the Convention, which is designated by order. It also provides for the amendment of Schedule 2 to reflect the addition or removal of designated derogations. Clause 15 makes provision in respect of a “designated reservation”, which it defines as the United Kingdom’s reservation to Article 2 of the first Protocol to the Convention (the text of which is set out in Part II of Schedule 2), and any other reservation to an Article which is designated by order. It also provides for the amendment of Schedule 2 to reflect the addition or removal of designated reservations. Clause 16 provides that a designated derogation will, if not withdrawn before then, cease to have effect for the purposes of the Bill five years after clause 1(2) comes into force unless extended by order for a further five years before the end of that period. Clause 16 also provides that such an order is to be subject to the affirmative resolution procedure. TL wcome Libriary 22503580 Human Rights iil Clause 17 provides that the appropriate Minister must review the designated reservation to Article 2 of the First Protocol to the Convention within five years of clause 1(2) coming into force, and any other reservation within five years of its designation; requires the Minister to lay a copy of a report on the result of any such review before each House of Parliament; and provides for further periodic reviews of the designated reservation while the designation is still in force. Clause 18 provides that a holder of one of the judicial offices to which the clause applies may become a judge of the European Court of Human Rights without being required to relinquish his office, and that he is not required to perform the duties of his judicial office while he is a judge the Court. Clause 19 provides that the Minister in charge ofa Bill in either House of Parliament must make and publish a written statement to the effect either that in his view the provisions of the Bill are compatible with the Convention rights, or that although he is unable to make such a statement, the government nevertheless wishes the House to proceed with the Bill. Clause 20 makes provision in respect of the making of orders under the Bill. Clause 21 defines various terms used in the Bill, and explains how references to Articles of the Convention and the European Court of Human Rights are to be read before and after the coming into force of the 11th Protocol to the Convention. Clause 22 makes provision about commencement and extent of the Bill. It also provides that the Bill binds the Crown. Financial effects of the Bill Although public authorities should already be seeking to comply with the Convention, the Bill could result in increased costs for them. The prohibition in clause 6 on acts by public authorities which are incompatible with the Convention rights could result in their amending their procedures in response to successful challenges to those acts, or in anticipation of challenges, and this may give rise to costs. Public authorities will be liable under clause 8 to pay damages awarded by the courts in respect of acts which are incompatible with the Convention rights. In deciding whether to make such an award and in calculating the amount, however, the courts will be required under clause 8 to take into account the principles applied by the European Court of Human Rights in relation to its own awards of compensation. Such awards tend to range from £5,000 to £15,000 and are not made simply because the Court finds a violation of the Convention. Clause 6 will have the effect of applying the Bill to a wide range of public authorities of different kinds. It is impossible to calculate what the overall financial effects of the Bill will be for them, or the effect for particular public authorities, or to be sure that any amendments to their procedures would not have been made in any case regardless of the provisions of the Bill (for example, as a result of other domestic policy decisions). Additional public expenditure on the courts and the legal aid budget is likely to arise from clause 7 which enables Convention points to be raised in iv Human Rights domestic proceedings involving a public authority, or to be the basis for proceedings against a public authority. Although it will be possible to raise Convention points (to the extent that they are relevant) in proceedings before any court or tribunal, the impact is likely to be greatest in relation to criminal proceedings, and on appeal, and in relation to applications for judicial review. It is also likely that the impact will be greater initially than in later years, when the courts will have become accustomed to dealing with Convention points and precedents will have been set. International experiences of the implementation of human rights legislation provide some insights into how additional workload might accrue to the courts and what the areas of potential challenge might be, but there is no domestic precedent from which an analogy might be drawn. The Government is considering those experiences and the advice of the judiciary and practitioners from the United Kingdom and abroad in assessing how the provisions of the Bill are likely to affect the court system in practice. At present, however, there is no basis on which to estimate the additional costs to the courts and legal aid budget with any precision. There will be an initial cost in training judges, magistrates and tribunal members to handle Convention points. This is estimated to cost up to £4.5m in England and Wales. The other provisions of the Bill have no significant financial effects. Any costs arising as a result of the Bill will be contained within the Government’s planned overall spending totals. Effect of the Bill on public service manpower In so far as its provisions result in increased business for the courts, the Bill may result in an increase in posts in the courts. Business compliance cost assessment It is not possible to assess the impact of the Bill on businesses, charities or voluntary organisations, but since its direct application is limited to public authorities, its impact on these kinds of organisation is unlikely to be Significant. Human Rights Bill [#.L.] ARRANGEMENT OF CLAUSES Introduction Clause The Convention and the First Protocol. Interpretation of Convention rights. Interpretation of legislation Legislation. Declaration of incompatibility. =Ffe ? Right of Crown to intervene. Public authorities Acts of public authorities. Proceedings. Judicial remedies. 19100 D Acts of courts and tribunals. Remedial action Power to take remedial action. Remedial orders. Procedure. Other rights and proceedings rr. Other rights and proceedings. Derogations and reservations Derogations. Reservations. Period for which designated derogations have effect. Periodic review of designated reservations. Judges of the European Court of Human Rights 18. Appointment to European Court of Human Rights. HL Bill 38 52/1 vi Human Rights Parliamentary procedure Statements of compatibility. Supplemental Orders under this Act. Interpretation, etc. Short title, commencement, application and extent. SCHEDULES: Schedule 1 —The Articles. Part I—The Convention. Part I—The First Protocol. Schedule 2 —Reservation and Derogation. Part I—Derogation. Part II—Reservation. Human Rights 1 BILL INTITULED An Act to give further effect to rights and freedoms guaranteed A.D. 1997. under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes. Be sien by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— Introduction 1.—(1) In this Act, “the Convention rights” means the rights and The Convention fundamental freedoms set out in— and the First Protocol. (a) Articles 2 to 12 and 14 of the Convention, and (b) Articles 1 to 3 of the First Protocol, 10 as read with Articles 16 to 18 of the Convention. (2) Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15). (3) The Articles are set out in Schedule 1. LS (4) The Secretary of State may by order make such amendments to this section or Schedule 1 as he considers appropriate to reflect the effect, in relation to the United Kingdom, of a protocol. (5) In subsection (4) “protocol” means a protocol to the Convention— (a) which the United Kingdom has ratified; or 20 (b) which the United Kingdom has signed with a view to ratification. (6) No amendment may be made by an order under subsection (4) so as to come into force before the protocol concerned is in force in relation to the United Kingdom. HL Bill 38 52/1 2 Human Rights Interpretation of 2.—(1) A court or tribunal determining a question which has arisen under Conventionrights. this Act in connection with a Convention right must take into account any— (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention, 10 whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. (2) Evidence of any judgment, decision, declaration or opinion of which account may have to be taken under this section is to be given in proceedings before any court or tribunal in such manner as may be provided by rules. 15 (3) In this section “rules” means rules of court or, in the case of proceedings before a tribunal, rules made for the purposes of this section— (a) by the Lord Advocate or the Secretary of State, in relation to proceedings in Scotland; or (b) by the Lord Chancellor or Secretary of State, in relation to any other 20 proceedings. Interpretation of legislation Legislation. 3.—(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. 25 (2) This section— (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and 30 (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility. Declaration of 4.—(1) Subsection (2) applies in any proceedings in which a court 35 incompatibility. determines whether a provision of primary legislation is compatible with one or more of the Convention rights. (2) If the court is satisfied that the provision is incompatible with one or more of the Convention rights, it may make a declaration of that incompatibility. 40 (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with one or more of the Convention rights. Human Rights 3 (4) If the court is satisfied— (a) that the provision is incompatible with one or more of the Convention rights, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility. (5) In this section “court” means— (a) the House of Lords; (b) the Judicial Committee of the Privy Council; 10 (c) the Courts-Martial Appeal Court; (d) in Scotland, the High Court of Justiciafy sitting as a court of criminal appeal or the Court of Session; (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal. = (6) A declaration under this section (“a declaration of incompatibility’”)}— _ (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made. 5.—(1) Where a court is considering whether to make a declaration of Right of Crown to 20 incompatibility, the Crown is entitled to notice in accordance with rules of intervene. court. (2) In any case to which subsection (1) applies— (a) a Minister of the Crown, or (b) a person nominated by a Minister of the Crown, is entitled, on an application made to the court in accordance with rules of N Nn court, to be joined as a party to the proceedings. (3) An application under subsection (2) may be made at any time during the proceedings. (4) A person who has been made a party to criminal proceedings (other than in Scotland) as the result of an application under this section may, with leave, appeal to the House of Lords against any declaration of incompatibility made in the proceedings. (5) In subsection (4)- “leave” means leave granted by the court making the declaration of 35 incompatibility or by the House of Lords; and “criminal proceedings” includes all proceedings before the Courts- Martial Appeal Court. Public authorities 6.—(1) It is unlawful for a public authority to act in a way which is Acts of public incompatible with one or more of the Convention rights. authorities. (2) Subsection (1) does not apply to an act if— (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or 4 Human Rights (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section, “public authority” includes— (a) a court, (b) a tribunal which exercises functions in relation to legal proceedings, and (c) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4) In subsection (3) “Parliament” does not include the House of Lords in its judicial capacity. (5) In relation to a particular act, a person is not a public authority by 5 —_ virtue only of subsection (3)(c) if the nature of the act is private. (6) “An act” includes a failure to act but does not include a failure to— (a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order. Proceedings. 7.—(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, 25 but only if he is (or would be) a victim of the unlawful act. (2) In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority includes a counterclaim or similar proceeding. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. (4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of the 35 unlawful act. (5) In subsection (1)(b) “legal proceedings” includes— (a) proceedings brought by or at the instigation of a public authority; and (b) an appeal against the decision of a court or tribunal. 40 (6) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.