31.41If it appears to the Minister that it is necessary to remedy the incompatibility without delay, the Minister may make a remedial order without a draft order being previously approved.1 An order made under this procedure is time limited (see below).
Having made an urgent procedure order, the Minister must lay the order before each House of Parliament as soon as possible after it is made, accompanied by:
- an explanation of the incompatibility which the 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;
- a statement of the reasons for proceeding by way of the remedial order procedure; and
- a statement of the reasons for making an order in the terms proposed.2
After a period of 60 days starting with the day on which the order was made (not necessarily the day on which it was laid before Parliament), the Minister must lay before each House a statement containing a summary of any representations which have been made to them on the order and details of any changes the Minister now considers it appropriate to make to the original order.3 If the Minister considers that changes are appropriate, they must make a further order, replacing the original; and must lay any replacement order before each House.
The original remedial order, or any replacement order, lapses if it is not approved by affirmative resolution of each House within the period of 120 days starting with the day on which the original order was made.4 The periods of 60 and 120 days do not include any time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days.5
During the 120-day period, the Joint Committee on Human Rights is required to report to each House whether the special attention of the House should be drawn to the order on any of the grounds specified in the standing orders relating to the Joint Committee on Statutory Instruments (noted above). It must also consider whether there appears to have been unjustifiable delay in the publication or laying of the order, or in notifying the Speaker of the House of Commons and Lord Speaker where the instrument has come into effect before being laid (which is a test applicable to remedial orders only if made under the ‘urgent’ procedure). It is also required to report whether:
- the order should be approved in the form in which it was originally laid before Parliament; or
- the order should be replaced by a new order modifying its provisions; or
- the order should not be approved.6
The Committee has indicated that in practice it will examine any urgent order during the first 60-day period and report on any changes which it considers are required, thereby ensuring that its report will be considered by the Minister when making the statement on representations and, if necessary, when drafting a replacement remedial order. If the Committee proposes no change to the original order, and is content, it has indicated that it will be unlikely to make any further report, and the Government will be free to move the motion in each House for the order to be approved. If it recommends changes, or the Minister for other reasons lays a replacement order, the Committee has indicated that it will report again, later in the 120-day period, in the light of its recommendations and of the Minister's statement about representations and any resulting modifications made to the order in its replacement.7
- Human Rights Act 1998, sch 2, para 2(b).
- Human Rights Act 1998, sch 2, paras 4(1) and 5 (the ‘required information’).
- Human Rights Act 1998, sch 2, para 4(2).
- Human Rights Act 1998, sch 2, para 4(3) and (4).
- Human Rights Act 1998, sch 2, paras 4 and 6.
- See SO No 152B(4) of the House of Commons and LJ (1999–2000) 573.
- Seventh Report, HL 58, HC 473 (2001–02) para 23.