Pre-enactment Political Rights Review of proposed Legislations under the British Bill of Rights

* This research was undertaken in November 2015 as part of a Policy Paper on the British Bill of Rights. It was commissioned by The Wilberforce Society (TWS), Cambridge, United Kingdom.

EXECUTIVE SUMMARY

Pre-enactment political rights review is the parliamentary scrutiny of proposed legislations to check for inconsistencies with human rights, this is generally done through a statement of compatibility made by the minister proposing the bill, reporting on inconsistencies by the Attorney General or a specialized select committee on human rights. The political rights review system is vital to ensure that bills that may infringe human rights are not enacted into laws.

In the United Kingdom, political rights review is conducted under the auspices of the Human Rights Act, 1998; it includes a ‘statement of compatibility’ or a ‘nevertheless statement’ made by the Minister proposing a Bill and reporting by the Joint Committee on Human Rights (JCHR). Canada, New Zealand, and Australia have provisions for pre-enactment political rights review which are distinctive and differ from one another and from that of the United Kingdom in many ways.

It is contended that the provision for Attorney General’s report on inconsistencies of proposed legislations with human rights is not necessary for the United Kingdom, due to the existence of a strong and robust JCHR performing similar, if not identical functions. Nonetheless, there is room for improvements, particularly with regard to publication of all official documents, its assessment of every Bill irrespective of whether it reports on it or not, and the publication of the rationale behind deciding not to report on a particular Bill.

It is also recommended that the provision allowing a Minister to make a ‘nevertheless statement’ instead of a ‘statement of compatibility’ should be abolished. Ministers proposing a Bill must be required to submit a ‘statement of compatibility’ which must also include an assessment of whether there are any inconsistencies with human rights, and if there are probable inconsistencies, then, it must justify how those provisions.

Lastly, political will is necessary to ensure that human rights are truly protected through the pre-enactment political rights review system, for this to happen the government and the parliament must give greater significance to the work of the JCHR and pay more heed to the suggestions that the put forward by it in its reports.

 1. INTRODUCTION

Pre-enactment political rights review is the scrutiny of bills by the parliament, generally through the Attorney General or the Minister of Justice, and/or a specific committee, to ensure that the bill is in harmony with the rights protected by law. This mechanism aims to ensure that laws or legal provisions which may violate protected rights are not enacted by the Parliament and even if they are enacted, it is done so with sufficient justification. The Human Rights Act, 1998 provides for pre-enactment political rights review, at present. The aim of this chapter is to analyse the current paradigm, compare is with three other Commonwealth jurisdictions, namely: Canada, New Zealand and Australia, and thereafter put forward recommendations for the potential pre-enactment political rights review system under the future British Bill of Rights.

Under the auspices of the Human Rights Act, 1998, in the United Kingdom, there are four sequential phases of pre-enactment political rights review: (1) pre-introductory executive review; (2) Minister’s ‘section 19’ statement; (3) scrutiny by the Joint Committee on Human Rights (JCHR); and (4) subsequent parliamentary deliberations.[1] Minister’s obligation to make a ‘section 19’ statement and the scrutiny of bills by the JCHR are the two primary systems of review, the others are ancillary or consequential. For the purposes of this chapter, the second and the third phases will be particularly prioritized. There three particular characteristic mechanisms of political rights review in the United Kingdom, Canada, New Zealand and Australia: (1) the Ministerial statement of compatibility, (2) the Attorney General’s Report, and (3) Specialized Parliamentary Select Committee on Human Rights. All three mechanisms have distinctive features which influence their effectiveness in protecting human rights.

2. THE MINISTERIAL STATEMENT OF COMPATIBILITY

In the United Kingdom, section 19 of the Human Rights Act, 1998 states that:

(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill —

(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or

(b)make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.

(2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.[2]

The aforementioned section requires the concerned minister to either make a ‘statement of compatibility’ or a ‘nevertheless statement’ with regard to the bill’s implication on the rights conferred by the European Convention on Human Rights (ECHR), as set out in Schedule 1 of the Human Rights Act, 1998. As it is evident from the text of the section itself, making a ‘statement of compatibility’ depends upon the minister’s discretion and moreover, no further evidence or argument to support the aforesaid ‘statement of compatibility’ is required. Similar provisions in are present in New Zealand and Australia. In New Zealand and Australia, as well as in the United Kingdom there are no formal implications of not making a ‘statement of compatibility’, it has no impact on the validity of the Bill.

2.1. New Zealand

The Cabinet Manual, 2008 requires the sponsoring Minister to ‘confirm that bills comply with certain legal principles or obligations when submitting bids for bills to be included in the legislation programme’, which includes the rights protected under the New Zealand Bill of Rights Act, 1990 and the Human Rights Act, 1993 of New Zealand.[3] The sponsoring Minister is aided by the departmental legal advisor to evaluate draft Bills to submit before the Parliament, a statement identifying inconsistencies with protected rights along with the means by which they have been addressed or can be justified.[4] In the United Kingdom, the sponsoring Minister is not mandated to make a ‘statement of compatibility’, he or she may instead make a ‘nevertheless statement’; furthermore, he or she is not required to justify either of them.

2.2. Australia

Section 8 of the Human Rights (Parliamentary Scrutiny) Act, 2011 of Australia requires the member of Parliament introducing a Bill to submit along with it a ‘statement of compatibility’ stating its human rights implications.[5] The Australian provision goes a little further than its British counterpart by mandating that the ‘statement of compatibility must include an assessment of whether the Bill is compatible with human rights’, whereas the British provision does not require an accompanying ‘assessment of compatibility’ with the statement.

3. THE ATTORNEY GENERAL’S REPORT                                           

Although the provision for the Attorney General’s report does not exist in the United Kingdom and Australia, its implementation has greatly furthered the cause of pre-enactment political rights review in Canada and New Zealand.

3.1. Canada

Canada was the first Commonwealth nation to enact substantive provisions for pre-enactment political rights review, as far back as in 1960. Section 3 of the Canadian Bill of Rights, 1960 requires the Minister of Justice (ex officio Attorney General) to examine all bills introduced in the House of Commons and report on any inconsistencies with the protected rights.[6] Subsequently, the Canadian Charter of Rights and Freedoms, 1982 (Charter) was duly enacted in 1982. Although the Charter does not provide for pre-enactment political rights review; section 4.1(1) of the Department of Justice Act, 1985 fills that void by requiring the Minister of Justice to examine every Bill introduced in the House of Commons in order

‘to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and … report any such inconsistency to the House of Commons at the first convenient opportunity’.[7]

The Human Rights Law Section (HRLS) of the Department of Justice reviews legislations for consistency with the Charter. A ‘risk assessment approach’ is taken by the HRLS to determine whether a report by the Attorney General is required, through the assessment of whether a credible case can be made for consistency of a proposed legislation with Charter rights and the potential adverse impact of the legislation on Charter rights.[8] The establishment of the Attorney General’s reporting system has initiated a system of executive pre-legislative rights review in order to avoid reports of inconsistencies.[9] Surprisingly, not a single report of inconsistency has been made by the Minister of Justice to the Parliament since the enactment of the Charter.[10] It has been argued that even though the review process lacks transparency and no official explanation is given for not finding a legislation inconsistent, there is a strong political presumption against the Attorney General’s report. Therefore, if a Bill does not satisfy the threshold of a credible case, it is either amended to do so or not introduced at all. The Minister of Justice might be compelled to resign if the Cabinet intently pursues a Bill that is clearly inconsistent with the Charter; as there has been so such resignations, it is inferred that amendments to conform Bills with the Charter are duly made.[11]

 3.2. New Zealand

Section 7 of the New Zealand Bill of Rights, 1990 requires the Attorney-General (a Ministerial position in Canada) to issue a report during the introduction of a Bill if it ‘appears to be inconsistent’ with any of the rights protected by the Bill of Rights.[12] In New Zealand, the pre-enactment political rights review mechanism is chronologically divided into three phases: (1) executive review prior to a Bill’s introduction; (2) ‘section 7’ report by the Attorney-General (if applicable); and (3) post-introduction parliamentary deliberations. The Attorney-General is advised by Human Rights Unit of the Ministry of Justice, which evaluates every draft bill and identifies possible inconsistencies with protected rights. The ‘section 7’ report has no formal implications, hence, the Parliament has the freedom to choose whether or not it wishes to attach any importance to it.

The Attorney-General of New Zealand has submitted sixty-eight reports on inconsistencies since 1990.[13] The number of draft Bills amended or shelved even before introduction in anticipation of an Attorney-General’s report in unknown due to the confidentiality of the executive rights vetting process. However, it is evident that the pre-enactment political rights review mechanism has definitely made a positive impact on the rights vetting process pre and post-introduction of a Bill in the Parliament.

4. SPECIALIZED PARLIAMENTARY SELECT COMMITTEE ON HUMAN RIGHTS

In the United Kingdom, the Joint Committee on Human Rights (JCHR) is the specialized parliamentary committee of twelve members, one-half from the House of Commons and the other half from the House of Lords, which examines human rights issues in the United Kingdom, scrutinizes Bills proposed in the Parliament and reports on their human rights implications, and also, through the production of White Papers and Green Papers on human rights issues it guides public and parliamentary discourse. The JCHR is considered a hybrid parliamentary oversight committee because (1) JCHR operates in a relatively non-partisan and consensual manner; (2) Since, it is a joint committee of both the Houses of Parliament, half of its members are unelected, who contribute to its non-partisan nature and enables it to maintain a significant degree of independence from the government; (3) JCHR has an independent legal advisor, who is pivotal for writing reports and for deciding which Bills are to be scrutinized; and lastly, (4) JCHR combines the role of two separate parliamentary committees by performing legislative scrutiny as well as conducting executive oversight.[14] This characteristic nature of the JCHR has largely contributed to its success and its rise as an impactful player in the legislative process.

Although in its early years, not much significance was given to the work of the JCHR, however, JCHR reports became significant markers for parliamentary debate during and after the legislation of counter-terrorism measures subsequent to the London bombings in 2005. Thereafter, JCHR reports became an important aspect of the legislative process, discussions of a legislation’s human rights implications based on JCHR’s reports became common practice.[15] The JCHR’s persistent questioning of officials incentivises them to not draft Bills which may conflict with human rights so as to avoid being subjected to its scrutiny.[16] However, amendments to redress potential human rights infringements as suggested by the JCHR are rejected by the government on a regular basis, especially when the debate relates to the principle of proportionality.[17]

4.1. Canada

The standing committees of each of the Houses of Parliament of Canada – the House of Commons Standing Committee on Justice and Legal Affairs and the Senate Standing Committee on Legal and Constitutional Affairs – are weak due to the want of time and resources, the lack of a legal advisor, and denial of access to government documents.[18] Hence, the committees play a minor or negligible role in pre-enactment political rights review in Canada.

4.2. New Zealand

There is no special standing committee to scrutinize human rights implications of Bills in New Zealand, even with respect to the ‘section 7’ report produced by the Attorney General. However, regular select committees for specific subject-matters and specifically, the ‘Justice and Electoral Committee’ receives public submissions on concerns of possible rights implications of proposed legislations; at times, even if no ‘section 7’ report has been submitted, and on the basis of these submissions, they occasionally recommend amendments.[19]

 4.3. Australia

Section 4 of the Human Rights (Parliamentary Scrutiny) Act, 2011 of Australia provides for the establishment of a Parliamentary Joint Committee on Human Rights.[20] It is largely based on the Human Rights Act, 1998 of the United Kingdom, the provision differs from its United Kingdom counterpart on the fact that the functions of the Committee have been limited only to the examination of Bills for compatibility with human rights and thereafter, reporting its findings to the Parliament.

5. RECOMMENDATIONS FOR PRE-ENACTMENT POLITICAL RIGHTS REVIEW IN THE PROPOSED BRITISH BILL OF RIGHTS

This section puts forward recommendations with respect to the future Bill of Rights, which would overcome the shortcomings of the present pre-enactment political rights review system in the United Kingdom and further strengthen the system to better protect human rights while holding fast the premise of parliamentary sovereignty.

In Canada and New Zealand, the system of the Attorney General’s report on the inconsistency of Bills with protected rights, after the evaluation of every bill introduced in the parliament has made a tremendous positive impact on the protection of human rights within the parliamentary process. Although, however, the means to achieve that end has been reached in very different ways in Canada and in New Zealand. New Zealand’s sixty-eight reports in contrast to Canada’s zero, have both incentivised the government to seriously consider human rights implications of Bills introduced in the Parliament in two different ways. However, it is not advised that the United Kingdom introduce a similar provision for reporting by the Attorney General or Lord Chancellor in the Bill of Rights, primarily because, in contrary to Canada and New Zealand, the United Kingdom has a strong, independent, functional and ‘hybrid’ special parliamentary committee concerning human rights; the Joint Committee on Human Rights.

Nonetheless, the ‘risk assessment approach’ employed by the Human Right Law Section of the Department of Justice in Canada may be replicated by the JCHR, in addition, the JCHR can go a step further by publishing these assessments irrespective of whether they decide to report on the Bill or not. Furthermore, publication of an official explanation as to why a Bill is not found to be inconsistent with protected rights, hence not meriting a report by the JCHR, is also recommended. On that note, transparency of proceedings and the internal decision-making process of the JCHR especially with reference to the rationale behind whether or not to scrutinize legislations is important. It not only increases the credibility of the JCHR but also ensures that it will certainly evaluate each and every proposed legislation with equal commitment. The current practice of publication official documents such as correspondence with third parties, written submissions and transcripts of oral submissions to the JCHR, must continue and envisage every aspect of the JCHR’s functions.

The option for Ministers introducing a Bill in the Parliament to make a ‘nevertheless statement’ instead of a ‘statement of compatibility’ must be abolished in the Bill of Rights. In New Zealand, ‘a statement of compatibility must include an assessment of whether the Bill is compatible with human rights’.[21] Hence, a Minister must provide an explanation as to why he or she believes the Bill to be compatible or justify its inconsistencies with human rights. A similar provision is recommended in the British Bill of Rights, where the ‘statement of compatibility’ will not be a mere obligatory statement but an assessment of a Bill’s human rights implications and justify any potential inconsistencies. This will greatly incentivise Ministers to carefully consider the human rights implications of the legislation they are proposing and also encourage parliamentary discourse. In the preparation of the aforesaid assessment, Ministers may be assisted by their departmental legal advisors, who would inter alia evaluate human rights implications of the Bill and formulate arguments to justify the potential inconsistency or suggest possible amendments.

The main aim of the reports produced by the JCHR is to inform the Parliament about human rights issues and incentivise parliamentary scrutiny for remaining legislative process. Since JCHR reports do not have any formal implications, the Government chooses to either ignore or reject the suggestions that are made by the JCHR on a regular basis. Although, JCHR reports have begun to play an important role parliamentary discourse; Members of Parliament cite its observations, use its justifications and the evidence produced by it. It may well be said that the JCHR is one of kind and has been largely successful, in comparison with its Commonwealth counterparts, however, more weight and significance needs to be given to JCHR reports by the government. The JCHR, through its reports, must become one of the principal components of the legislative process. Hence, the Parliament must play a more active role in engaging in a constructive discourse with respect to the human rights concerns raised by the reports submitted by the JCHR, for this to happen, party affiliations must be disregarded to a greater degree when the issue in question concerns human rights. This would lead to a strong executive and parliamentary political rights review system which would bolster the overall pre-enactment political rights review system in the United Kingdom.

REFERENCE

[1] Gardbaum S, The New Commonwealth Model of Constitutionalism (Cambridge University Press 2013), at 162.

[2] The Human Rights Act, 1998 (UK), s 19.

[3] New Zealand Cabinet Office, Cabinet Manual 2008 (Wellington: Cabinet Office, 2008), at 95 [7.60].

[4] Gardbaum S, The New Commonwealth Model of Constitutionalism (Cambridge University Press 2013), at 133.

[5] Human Rights (Parliamentary Scrutiny) Act, 2011 (Australia), s 8.

[6] Canadian Bill of Rights, 1960 (Canada), s 3.

[7] Department of Justice Act, 1985 (Canada), s 4.1(1).

[8] Gardbaum S, The New Commonwealth Model of Constitutionalism (Cambridge University Press 2013), at 103.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] New Zealand Bill of Rights, 1990 (NZ), s 7.

[13] As of January 2016; http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/domestic-human-rights-protection/about-the-new-zealand-bill-of-rights-act/advising-the-attorney-general/section-7-reports-published-before-august-2002/section-7-reports-published-before-august-2002.

[14] Hunt M, Hooper H and Yowell P, Parliaments and Human Rights: Redressing the Democratic Deficit, at 119.

[15] Ibid, at 141-163.

[16] Ibid, at 49.

[17] Ibid, at 51.

[18] Gardbaum S, The New Commonwealth Model of Constitutionalism (Cambridge University Press 2013), at 104.

[19] Ibid, at 135.

[20] Human Rights (Parliamentary Scrutiny) Act, 2011 (Australia), s 4.

[21] Human Rights (Parliamentary Scrutiny) Act, 2011 (NZ), s 8(3).

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