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Last updated: 30 November 2009
Background on the Human Rights Act 1998 and interpretation in case law
12.1 The Human Rights Act 1998 gives further effect to the European Convention on Human Rights (ECHR) to which the UK has been party since 1951. The Human Rights Act makes it unlawful for public authorities to act in a manner that is incompatible with a Convention right and requires legislation to be interpreted compatibly with the Convention rights so far as it is possible to do so.
12.2 The main Convention rights are: life; freedom from torture and inhuman and degrading treatment or punishment; liberty and security (i.e. freedom from wrongful arrest and detention); fair trial; respect for private and family life, home and correspondence; religion, thoughts and belief; expression and information; peaceful assembly and association; marriage; property; education; and free elections. Very few of the rights are ‘absolute’; most are either ‘limited’ or ‘qualified’.
12.3 Absolute rights, such as the right not to be tortured (Article 3), cannot be infringed or derogated from in any circumstances. Limited rights, such as the right to liberty (Article 5), are limited only in explicit and finite circumstances, set out in the Article itself. Qualified rights, which include the right to respect for private and family life (Article 8) and peaceful enjoyment of property (Protocol 1, Article 1), may be interfered with only if what is done:
12.4 The last of these, known as the proportionality test, is of critical importance. If a particular policy or action interferes with a Convention right, pursuant to a legitimate aim, it will not be justifiable if the means used to achieve the aim are excessive in the circumstances.
12.5 There is a considerable and growing body of case law on the interpretation of Convention issues in UK courts, in addition to that from the European Court of Human Rights in Strasbourg. The case law confirms that the Convention rights can also imply a positive obligation, not readily apparent on the face of the Article. For example, the right to life requires not only that the State not take life, but also that it is under an obligation to take positive steps to protect life. Therefore, in addition to having a law that prohibits the taking of life, the State – for example through the agency of the police – is under a duty to protect a life where there is a known risk to that life.
12.6 It should be standard practice, when preparing a policy initiative, for officials to consider the impact of the proposed policy on people's Convention rights. Officials therefore need awareness of the Convention rights, and of key concepts such as proportionality. Such consideration must not be left to legal advisors (though they should be involved throughout) or to a last-minute “compliance” exercise.
12.7 Legal advice on Convention matters will come primarily from departmental legal advisors, who may wish to instruct Parliamentary Counsel, or to seek an informal view from legal advisors in the Ministry of Justice. The Law Officers are of course the ultimate source of legal advice within Government, on human rights questions as on other matters, though their advice should not be disclosed – but on most occasions departments should discuss the question with legal advisors in the Ministry of Justice Human Rights Division first, particularly where novel or crosscutting issues are raised, or where a department is proposing to make a legislative reference to the Human Rights Act.
ECHR Memorandum for Legislation Committee
12.8 A Memorandum setting out the impact, if any, of the Bill on ECHR rights is one of the papers required by Legislation Committee before the Bill can be approved for introduction or publication in draft. The ECHR Memorandum must have been cleared with the Law Officers before being circulated to Legislation Committee. The department should send the Memorandum along with the latest copy of the Bill to the Attorney General's Office and the Legal Secretariat to the Advocate General for Scotland for consideration at least two weeks before the meeting of Legislation Committee at which the Bill is to be considered. It should be emphasised that two weeks is the minimum period to allow for any difficulties to be addressed before the Bill comes to Legislation Committee, and for larger Bills or Bills that touch closely on human rights issues the Law Officers should be given more time to consider the Memorandum. Officials in the Attorney General's Office and the Legal Secretariat to the Advocate General are also happy to look at a draft of the Memorandum at an earlier stage if this is helpful.
12.9 The Memorandum should cover the human rights issues raised, with a frank assessment by the department of the vulnerability to challenge in legal and policy terms. Though the primary focus should be upon the Convention rights, other relevant treaty obligations should be addressed, e.g. those in the UN International Covenant on Civil and Political Rights (ICCPR), or those in the UN Convention on the Rights of the Child.
12.10 The ECHR Memorandum is not disclosable, and should address the weaknesses as well as the strengths in the department's position. It can assume a basic knowledge of the Human Rights Act, and if there are significant cases affecting the analysis these should be mentioned. It need not, however, be a compendious discussion of the case law. What is needed is a clear and succinct statement of the human rights considerations and the justification in ECHR terms for any interference. Where advice has been sought from Counsel or from the Law Officers it will often be helpful to refer to the advice received in the Memorandum or, in some cases, annex the advice to the Memorandum.
12.11 Departmental legal advisors should prepare the ECHR Memorandum with input from policy officials. Guidance on preparing an ECHR Memorandum is available in the Law Officer Action Zone on LION (the intranet for Government legal advisors) or from the Attorney General's Office.
12.12 If the Government proposes to table to accept an amendment to the Bill which would in any way change the position in relation to ECHR or raise any new ECHR issues, a further ECHR Memorandum must be prepared, either as a supplement to the original ECHR Memorandum or as a separate document, and circulated to Legislation Committee when clearance is sought to table or accept the amendment. Where an amendment raises substantial human rights issues, a department should also send this new analysis to Law Officers.
Statements of compatibility (“section 19” statements)
12.13 Section 19 of the Human Rights Act 1998 requires that for every Government Bill the Minister in charge in each House make a statement that in his/her view the Bill's provisions are compatible with the Convention rights.
12.14 Alternatively, if s/he is not able to provide that personal assurance, s/he must state that nevertheless the Government wishes the House to proceed with the Bill; this does not however amount to a positive statement that the Bill is incompatible.
12.15 Departmental legal advisors will take the lead in providing the formal advice required to justify such statements, seeking assistance from legal advisors in the Ministry of Justice Human Rights Division and ultimately the Law Officers as necessary.
12.16 The statement must be made before Second Reading in each House. This means that when the Bill passes from one House to the other, a second statement will have to be made, taking into account any amendments (including non-Government amendments) made in the first House. As soon as the Bill completes its Third Reading in the House of introduction, a new statement must be signed by the Minister in charge of the Bill in the second House and deposited with Parliamentary Counsel, who will arrange for it to be printed on the face of the Bill. The Explanatory Notes should also be updated accordingly. If a Bill starting in the Lords was amended at Third Reading there may need to be a short delay in publishing the Explanatory Notes to allow time for them to be updated to reflect the amendments. This is acceptable (though see below).
12.17 The statement should be made by whichever Minister is in overall charge of the Bill in each House. In the Commons, this will be the Minister whose name goes on the take-up slip; in the Lords, this may be a departmental Minister or it may be a Government Whip. If in doubt, consult Parliamentary Counsel.
12.18 The Minister in charge of the Bill in each House must personally sign a statement in the following terms:
either
European Convention on Human Rights
Statement under section 19(1)(a) of the Human Rights Act 1998
In my view the provisions of the .... Bill are compatible with the Convention rights.
[signed] ..........
Secretary of State/Minister for ...........
or
European Convention on Human Rights
Statement under section 19(1)(b) of the Human Rights Act 1998
I am unable to make a statement that in my view the provisions of the .... Bill are compatible with the Convention rights but the Government nevertheless wishes the House to proceed with the .... Bill.
[signed] ..........
Secretary of State/Minister for ...........
12.19 In the case of a section 19(1)(b) statement, it is permissible to indicate the provision in the Bill giving rise to the compatibility problem by inserting words such as “but only because of clause 8” after “I am unable”.
12.20 The most common (but not the only) situation in which a section 19(1)(b) statement will be necessary is on entry to the second House, where a first House amendment has been made which the Government does not support and which it considers to be incompatible with the Convention rights. In this case, the reason for the certification as non-compatible can be explained at Second Reading, and the Minister can indicate whether or not the House is to be invited to remove the amendment in question.
12.21 The statement will be published on the face of the Bill and in the Explanatory Notes. For these reasons, the statement should be signed by the Minister and sent to Parliamentary Counsel before the Bill is published and ideally before it is considered for introduction by Legislation Committee. Parliamentary Counsel will ensure that the version of the Bill first printed in each House has the statement on the face of it.
12.22 If for any reason the statement will not be signed before the Bill is first printed in either House, Parliamentary Counsel should be consulted immediately. The Minister concerned should answer an arranged question saying s/he is giving consideration to the matter (or, in the Commons, make a written Ministerial statement) and will produce a statement before Second Reading.
12.23 There is no legal obligation on the Minister to give a view on compatibility other than as required by section 19, nor is there a specific requirement for the Minister to reconsider compatibility issues at a later stage. Nonetheless, were a Minister to reach the conclusion that the provisions of a Bill, whether as originally introduced or as amended, no longer met the standards required for a section 19 statement to be given, it would be a breach of the Ministerial Code to proceed towards Royal Assent without either amending the provisions or informing Parliament of the issue.
12.24 The section 19 statement should be printed on good quality paper, signed by the Minister in black ink and provided in hard copy to Parliamentary Counsel before the Bill is introduced to Parliament.
12.25 If it appears likely that there any provisions in the Bill which the Minister will not be able to declare compatible, Legislation Secretariat should be informed immediately and advice on the ECHR Memorandum and Explanatory Notes should be sought from the Ministry of Justice Human Rights Division in the first instance.
12.26 No section 19 statement is needed for Private Members' Bills. However where it is proposed that the Government supports the Bill, it should be in a position to make a statement concerning the compatibility of the Bill, and the department will need to produce an ECHR Memorandum for Legislation Committee before it gives clearance to support the Bill. Where the Government decides to take a genuinely neutral stance on a Private Member's Bill (e.g. by permitting a free vote), as opposed to the neutrality demanded by convention when opposing a Private Member's Bill in the House of Lords, it will be appropriate for the Government to be in a position to indicate to the House its view on Convention compatibility. The lead department should therefore inform Legislation Committee of its view when seeking agreement to the position of neutrality. It may not be necessary to produce a separate ECHR Memorandum for the purpose but the precise approach should be decided on a case by case basis with the Attorney General's Office and Legal Secretariat to the Advocate General.
12.27 The Government has made a commitment to provide more detailed information on the human rights aspects of Government Bills in its Explanatory Notes. The purpose of the Explanatory Notes is to assist Parliament, both in debates on Bills and through the Joint Committee on Human Rights, and all Explanatory Notes must provide this information. Departments may wish to send the section of the Explanatory Notes which deals with human rights issues, along with a copy of the Bill and the ECHR Memorandum, to the Ministry of Justice Human Rights Division before the Bill is presented to Legislation Committee; this can help avoid last minute issues arising before introduction of the Bill.
12.28 The Explanatory Notes should therefore not only record the fact that a section 19 statement has been made and what it was, but also give further detail of the most significant Convention issues thought to arise on the Bill, together with the Minister's conclusions on compatibility. The Explanatory Notes to the Criminal Justice and Immigration Bill, which received Royal Assent in May 2008, illustrate a comprehensive approach to human rights analysis that has been noted with approval by the Joint Committee on Human Rights. Detailed guidance is given in the chapter on Explanatory Notes.
The Joint Committee on Human Rights
12.29 The Joint Committee on Human Rights (JCHR) will report on the ECHR issues raised by a Bill and is likely to examine closely the arguments put forward by the department justifying interference with a Convention right. It will also look 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. The JCHR's approach to legislative scrutiny is set out in detail at paragraphs 18-51 of the Committee's Twenty-third Report of Session 2005-06 at The Committee's Future Working Practices [External PDF].
12.30 If the JCHR considers that the Explanatory Notes to a Bill do not adequately set out the Convention issues, it will ask the responsible Minister for a Memorandum on particular points, which will need to be produced extremely quickly. It is clearly advantageous if the JCHR reports favourably early in the Bill's passage, and departments should attempt to identify areas likely to concern the Committee and prepare briefing ahead of time, if possible.
12.31 It may be helpful for departments to volunteer a Memorandum at the time of introduction informing the JCHR of any human rights issues which the Bill may raise, or write to them setting out any issues which were too detailed or substantial to be included in the Explanatory Notes.
12.32 The JCHR may also ask about compliance with any international human rights instrument which the United Kingdom has ratified; it does not regard itself as limited to the ECHR.
12.33 Bill teams should contact the Clerk to the JCHR to find out if the Committee is likely to report on the Bill, and ask to be advised when the report is published (as departmental Parliamentary Branches are unlikely to be alerted to any reports until much later).
12.34 It is not usually necessary for the department to respond to the Committee's report in writing, as members of the Committee will often move amendments to give effect to the Committee's recommendations and objections; the Minister will be expected to give a full response at that time. However, if the response to a recommendation or objection is particularly legal or technical, it may be easier for the department to respond in writing; advice on this point can be sought from the Human Rights Division of the Ministry of Justice. Memoranda can be emailed to the JCHR at jchr@parliament.uk; Bill teams should alert the Committee Clerk that a response is coming on 020 7219 4263. If a Memorandum is sent shortly before the next stage of a Bill, making it unlikely that the Committee will be able to publish it before the debate, Bill teams should also consider laying a copy of the memorandum in the Library of the appropriate House.
12.35 A statement about ECHR compatibility is not required for Acts. Nor should the Explanatory Notes for Acts make any reference to ECHR compatibility or the fact that a section 19 statement was made.