Non-urgent procedure

31.40Unless the circumstances dictate that the urgent procedure is required, the following steps must be taken in making a remedial order.

The Minister must lay before each House a document which contains:

  1. a draft of the proposed order;
  2. an explanation of the incompatibility which the proposed order seeks to remove, including particulars of the relevant declaration of incompatibility, finding or order of the United Kingdom court or the European Court of Human Rights;
  3. a statement of the reasons for proceeding by way of the remedial order procedure; and
  4. a statement of the reasons for making an order in the terms proposed.1

A period of 60 days, beginning on the day on which the document containing the proposal for a draft order was laid, must be allowed for representations to be made to the Minister. The period does not include any time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days.2 Within this period, the terms of reference of the Joint Committee on Human Rights (see para 41.11 ) require it to report to each House its recommendation whether a draft order in the same terms as the proposal should be laid before the House.3

After the expiry of the 60-day period, the next step is for the Minister to lay a draft order before each House. If representations have been made during the initial 60-day period, the draft order must be accompanied by a statement containing a summary of those representations and details of any changes made to the proposed draft order as a result of those representations.

Within a second 60-day period (calculated in the same way as the first one), the terms of reference of the Joint Committee on Human Rights require it to report to each House its recommendation whether the draft order should be approved; and whether the special attention of the House should be drawn to the draft order on any of the grounds specified in the standing orders of each House relating to the Joint Committee on Statutory Instruments, that is: that it imposes a charge on public revenues (eg in the case of a remedial order by requiring the payment of compensation to victims of violations of Convention rights) or requires payments to be made to a public authority; that there is doubt as to whether it is intra vires; that it appears to make unusual or unexpected use of the power under which it is made; that for any special reason its form or purport calls for elucidation; or that its drafting appears to be defective.4

Two of the grounds on which the Joint Committee on Statutory Instruments might draw an instrument to the special attention of each House are not relevant to remedial orders. These are: that it may have been made in pursuance of an enactment excluding it from challenge in the courts; and that it purports to have retrospective effect when the parent Act does not expressly authorise it (the Human Rights Act 1998 does expressly authorise retrospective effect).

After the Joint Committee on Human Rights has reported, and the second 60-day period has expired, a motion may be moved by a Minister in each House to approve the draft order. If the draft order has been approved by resolution of each House, the Minister may proceed to make the order.5

Footnotes

  1. 1. Human Rights Act 1998, sch 2, paras 3(1) and 5 (the ‘required information’).
  2. 2. Human Rights Act 1998, sch 2, paras 3(1) and 6. The Joint Committee on Human Rights has recommended that the 60-day periods specified here and elsewhere in the schedule should exclude times when either House is not sitting for more than four days, in its Seventh Report of Session 2001–02, Making of Remedial Orders, HL 58, HC 473, at para 40 (see also First Report of the House of Commons Procedure Committee, Making Remedial Orders: Recommendations by the Joint Committee on Human Rights, HC 626 (2001–02).
  3. 3. See SO No 152B(3)(a) of the House of Commons and LJ (1999–2000) 573.
  4. 4. See SO No 152B(3)(b) of the House of Commons and LJ (1999–2000) 573.
  5. 5. The Joint Committee on Human Rights has recommended that draft orders should be able to be approved before the end of 60 days once it has reported on them, Seventh Report, HL 58, HC 473 (2001–02), paras 41–43 (see also First Report of the House of Commons Procedure Committee, HC 626 (2001–02)).