Parliament and the Human Rights Act: Can the JCHR help facilitate a culture of rights?

International Journal of Constitutional Law

Volumn 4, Issue 1, 2006, Pages 1-38

  Hiebert, Janet L ^a  

^a QUEEN S UNIVERSITY   (Canada)

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EID: 33746472532     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/moi051     Document Type: Review

References (150)

1. John Major captured this antipathy when he declared "[we in the United Kingdom] have no need of a Bill of Rights because we have freedom." As quoted by Lord Irvine of Lairg, The Impact of the Human Rights Act: Parliament, the Courts and the Executive, Pub. L. 308, 309 (2003).
2. Keith D. Ewing, The Futility of the Human Rights Act (extended version of the Bracton Lecture delivered at Exeter University, Jun. 2, 2004), Pub. L. 829, 2004 (Winter).
3. As Anthony W. Bradley and Keith D. Ewing note, the traditional British approach to the protection of civil liberties and human rights was greatly influenced by Albert V. Dicey. On the Diceyan account, freedom was adequately protected, first, by the common law principle that citizens are entitled to do as they like unless expressly prohibited by the law, and second, by an independent Parliament acting as a safeguard against an illiberal executive. There was thus no need for a statement of principles operating as a form of higher law. The authors' claim that the decline in the power of Parliament relative to the executive over the past 100 years made Dicey's account steadily less persuasive. Anthony Bradley and Keith Ewing, Constitutional and Administrative Law 404-405 (13th ed. Pearson Educ. Ltd. 2003).
4. The White Paper on the Human Rights Bill states, for instance, that it is "plainly unsatisfactory that someone should be the victim of a breach of the Convention standards by the State yet cannot bring any case at all in the British courts, simply because British law does not recognize the right in the same terms as one contained in the Convention." Home Office, Rights Brought Home: The Human Rights Bill 1997, Cm. 3782, at para. 1.16.
5. In 1992, John Smith proposed incorporation of the European Convention on Human Rights in his bid for leadership of the Labour Party in 1992, a commitment that was maintained after Smith's death in 1994. For discussion of the Labour Party's position on incorporation, see Keith D. Ewing, The Human Rights Act and Parliamentary Democracy, 62 Mod. L. Rev. 79 (1999).
6. See Janet L. Hiebert, New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?, 82 Tex. L. Rev. 1963 (2004).
7. In Brown v. Stott, [2003] 1 A.C. 681, Lord Steyn characterized the ECHR as representing "our Bill of Rights"
8. as quoted in Bradley and Ewing, supra note 3, at 422.
9. Lord Steyn expressed this difference in the following manner: "[The framers of the European Convention on Human Rights] realized only too well that a single-minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European democracies. The fundamental rights of individuals are of supreme importance but those rights are not unlimited: We live in communities of individuals who also have rights. The direct lineage of this ancient idea is clear: The convention is the direct descendant of the Universal Declaration of Human Rights which in Art. 29 expressly recognized the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others." Brown v. Stott [2003] 1 A.C. 681, 707.
10. This term is how the Labour Party, when in opposition, conceived of the project of incorporation. Jack Straw and Paul Boateng, Bringing Rights Home: Labour's Plan to Incorporate the European Convention on Human Rights into United Kingdom Law, Eur. H. R. L. Rev. 71-80 (1997), Once in government, Labour published a white paper and a bill proposing incorporation
11. see Home Office, supra note 4.
12. The Rt. Hon. Jack Straw MP, then Home Secretary, reflected this goal in the following statement: "The development of [a human rights] culture is partly about developing a sense inside government... about those who have authority... about the way in which they should exercise that authority and that when they justify acts which are coercive... by reference to the public interest they really do mean the wider public interest rather than simply their convenience or the convenience of government." Joint Committee on Human Rights [hereinafter JCHR], Minutes of Evidence, Mar. 14, 2001, H.L. 66-I, H.C. 332-I, at question 17.
13. This assumption is clear in the following parliamentary statement by Lord Irvine, then lord chancellor: "In the very rare cases where the higher courts will find it impossible to read and give effect to any statute in a way which is compatible with Convention rights, they will be able to make a declaration of incompatibility. Then it is for Parliament to decide whether there should be remedial legislation. Parliament may, not must, and generally will, legislate." 582 Parl. Deb., H.C. (6th ser.) (1997) 1228-1229.
14. Some who opposed incorporation did so largely because they believed that the rights contained in the European Convention of Human Rights were incomplete, owing to the omission of social and economic rights. See, e.g., Keith D. Ewing, The Case for Social Rights, in Protecting Human Rights. Instruments and Institutions (Tom Campbell et al. eds., Oxford Univ. Press 2003)
15. and Keith D. Ewing, The Unbalanced Constitution, in Sceptical Essays on Human Rights (Tom Campbell et al. eds., Oxford Univ. Press 2001).
16. See, e.g., Jeffrey Goldsworthy, Homogenizing Constitutions, 23 Oxford J. Legal Stud. 483, 484 (2003).
17. Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 742 (2001).
18. Mark Tushnet believes weak-form systems of judicial review may be unstable. They risk being transformed either by reverting back to the idea of parliamentary sovereignty, where courts do not believe it is appropriate to review legislation from a rights perspective, or by expanding the scope of judicial power so that weak forms become more similar to the idea of judicial supremacy. Mark Tushnet, New Forms of Judicial Review, 38 Wake Forest L. Rev. 813, 818, 824 (2003).
19. I am influenced in this observation by Conor Gearty, who argues that the HRA has a dialectical tension at its core. See Conor A. Gearty, Reconciling Parliamentary Democracy and Human Rights, 118 L. Q. R. 248 (2002). Although this idea of dialectic tension has resonance for government and Parliament, it is not clear whether the judiciary will be influenced by legislative deliberations. Indeed, some judges in the United Kingdom have expressed skepticism about the compatibility of dialogue with their role. See the evidence of Lord Bingham, the Senior Law Lord to the JCHR, JCHR, Minutes of Evidence, Mar. 26, 2001, H.L. 66-iii, H.C. 333-iii, at question 78.
20. Although this metaphor has been used to describe both the U.S. Bill of Rights and the Canadian Charter of Rights, its use is misleading in these jurisdictions. The only dialogical "space" for Canadian or American legislatures is compelled acceptance of the nullification of legislation or the requirement that they revise impugned legislation to remedy judicially identified deficiencies. Although Canadian legislatures can disagree with judicial interpretations of the Charter by means of the "notwithstanding clause," they are generally reluctant to do so, and when invoked, the procedure merely delays the judicial interpretation of the Charter. See Janet L. Hiebert, Charter Conflicts: What is Parliament's Role? (McGill-Queens Univ. Press, 2002).
21. Geoffrey Palmer, New Zealand's Constitution in Crisis 59-60 (John McIndoe Ltd. 1992).
22. Unlike New Zealand and Canada, which have conferred this responsibility on the attorney general and federal justice minister, this responsibility under the HRA is vested with individual ministers. The reporting obligation also differs from Canada's and New Zealand's in its recognition that reports of inconsistency should be made to both houses of Parliament (Canada requires a report only to the House of Commons while New Zealand is a unicameral system). What this means in the U.K. is that when a bill passes from one house to the other, a second statement will be required, one which must take into account earlier amendments made. The respective statements will be made by whichever minister has been given responsibility in the particular house.
23. Unlike the U.K., neither Canada nor New Zealand has adopted a specialized committee to evaluate bills from a rights perspective. See Janet L. Hiebert, Interpreting a Bill of Rights: The Importance of Legislative Rights Review, 35 Brit. J. Pol. Sci. 235-255 (2005).
24. Francesa Klug, Values for a Godless Age. The Story of the United Kingdom's New Bill of Rights 165-66 (Penguin Books 2000).
25. Judges are instructed in s. 4 that wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, this "meaning shall be preferred to any other meaning" and are prevented from holding "any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective." There is debate, however, about whether courts are in fact prevented from making or implying declarations of inconsistency. See Andrew Butler, Strengthening the Bill of Rights, 31 Victoria U. Wellington L. Rev. 129 (2000).
26. This debate appears recently to have been settled by the Court of Appeal in Moonen, [2000] 2 N.Z.L.R. 9, in which that Court stated it might have the power to declare legislation "inconsistent" with the Bill of Rights.
27. Hiebert, supra note 17, at 7-13.
28. See also James B. Kelly, Bureaucratic activism and the Charter of Rights and Freedoms: The Department of Justice and its entry into the centre of government, 42 Can. Pub. Admin. 476, 486-503 (1999).
29. Hiebert, supra note 17, at 10-12.
30. Kelly, supra note 23, at 476-511.
31. A good example was the federal government's attempt to establish a national DNA data bank for resolving previously unsolved crimes. The opposition wanted stronger measures that would allow police to collect DNA samples from criminal suspects at the point of arrest. The government rejected this position, arguing that the judiciary would likely rule it unconstitutional, and promoted legislation that allows for DNA samples to be obtained only after individuals have been convicted of serious offenses, such as murder, sexual assault, and breaking and entering. Hiebert, supra note 17, at 118-145. for resolving previously unsolved crimes. The opposition wanted stronger measures that would allow police to collect DNA samples from criminal suspects at the point of arrest. The government rejected this position, arguing that the judiciary would likely rule it unconstitutional, and promoted legislation that allows for DNA samples to be obtained only after individuals have been convicted of serious offenses, such as murder, sexual assault, and breaking and entering.
32. Id.
33. For discussion of the first twenty-four reports of inconsistency, and their effects, see Grant Huscroft, The Attorney-General's Reporting Duty, in The New Zealand Bill of Rights (Paul Rishworth et al., Oxford Univ. Press 2003).
34. See also Janet L. Hiebert, Rights-vetting in New Zealand and Canada: Similar Idea, Different Outcomes, N.Z. J. of Pub. & Int'l L. 63, 73-89 (2005).
35. Id.
36. Id.
37. One estimate suggests that the government invested £4.5 million in judicial training and preparation for public authorities. John Wadham, The Human Rights Act: One Year On, 6 Eur. Hum. Rts. L. Rev. 620, 622 (2001).
38. For discussion of the extent of judicial training, see Memorandum from the Lord Chancellor, JCHR, Minutes of Evidence, Mar. 19, 2001, H.L. 66-II, H.C.332-II.
39. Jeremy Waldron, The Dignity of Legislation 153 (Cambridge Univ. Press 1999).
40. I borrow here from an earlier publication on the challenges of political rights scrutiny within a parliamentary system. See Janet L. Hiebert, A Hybrid-Approach to Protect Rights? An Argument in Favour of Supplementing Canadian Judicial Review with Australia's Model of Parliamentary Scrutiny, 26 Fed. L. Rev. 115, 126-27 (1998).
41. The HRA encompasses only government bills. Nevertheless the standing orders of each house have now been changed so that whoever promotes a private bill must produce a statement of opinion on whether the bill is compatible with Convention rights.
42. Lord Lester & Kay Taylor, Chapter 8: Parliamentary scrutiny of human rights, in Human Rights Law and Practice 600 (Lord Lester & David Pannick eds., LexisNexis U.K. 2nd ed. 2004) [hereinafter, Parliamentary scrutiny].
43. Cabinet Office Constitution Secretariat, The Human Rights Act 1998 Guidelines for Departments (Dep. for Const. Aff. 2nd ed. 2000), available at http://www.dca.gov.uk/hract/guidance.htm.
44. Id at para. 34.
45. Id. at para. 35.
46. Id. at para. 36.
47. Home Office, supra note 4, at para. 3.6. During parliamentary debate about the proposed
48. During parliamentary debate about the proposed Human Rights Bill, The Rt. Hon. Jack Straw MP, then home secretary, indicated that the ministerial obligation to report to Parliament on the compatibility of bills with Convention rights would influence legislative choices at the drafting stage and would also have an important influence on parliamentary review. 306 Parl. Deb., H.C. (6th ser.) (1998) 779.
49. Id. at paras. 3.6-3.7
50. The Rt. Hon. Margaret Beckett MP, then Leader of the House of Commons, indicated on December 14, 1998 that both houses would be asked to appoint a Joint Committee on Human Rights. 332 Parl. Deb., H.C. (6th ser.) (1998) 604.
51. Robert Blackburn, A Human Rights Committee for the U.K. Parliament: The Options, 3 Eur. Hum. Rts. L. Rev. 534 (1998).
52. House of Lords Select Committee on a Bill of Rights, Report of the Select Committee on a Bill of Rights, 1977-1978, at 176, para. 38, as referred to by Blackburn, id. at 534.
53. U.K. Parliament, Joint Select Committees, available at http://www.parliament.uk/parliamentary_committees/ parliamentary_committees36.cfm.
54. This assessment is based on interviews conducted by the author with several members of the JCHR, members of its staff, leading academic commentators on the HRA, and former and current figures with Justice, May 4-19, 2004 [hereinafter "Interviews" unless an individual is specified].
55. Interview with Lord Lester of Herne Hill, Member, JCHR, in London, U.K. (May 10, 2004).
56. Interviews, supra note 46.
57. Interview with Lord Lester, supra note 47.
58. To help the committee understand how the HRA was affecting political behavior, it sought information on a range of issues, such as how the government had prepared departments for the introduction of the HRA, how the HRA has affected departments' approaches to human rights issues, what its consequences were for the development of policy and delivery of services, how departments approached the section 19 reporting obligations, and the government's own approach to reporting where issues of rights arise. More specifically, it sought information from ministers, law officers, and senior judges on how they were interpreting and responding to the act, as well as from nongovernmental organizations on their perspectives on the development of a human rights culture in the U.K., the HRA's impact on policy, as well as their advice on how the JCHR should interpret its mandate. JCHR, Second Special Report, 2000-01, H.L. 66-i, H.C. 332-i.
59. JCHR, First Report, 2000-O1, H.L. 69, H.C. 427, at Annex 1. In a subsequent report, the committee indicated in a letter sent to the secretary of state for the Home Department, "our starting-point is of course the statement made under s. 19 (1)(a) of the Human Rights Act 1998; but... the committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act." JCHR, Third Report, 2003-04, H.L. 23, H.C. 252, at Appendix 1, p. 23. There has subsequently been some disagreement on the committee about whether it is appropriate to define its mandate so broadly. At least one member believes that the principle of parliamentary sovereignty should restrict the scope of the committee's review to those human rights standards that Parliament has politically approved and passed, such as those contained in the Human Rights Act.
60. According to Lester, the JCHR approaches nongovernmental bills in a similar manner as it examines government bills. Lester and Taylor, supra note 35, at 612.
61. JCHR, Fourteenth Report, 2001-02, H.L. 93, H.C. 674, at para. 1.
62. The first section 19(1)(b) report was made after the House of Lords decided to amend legislation that would have the effect of denying the government's decision to remove a legislative provision (sect. 28 of the Local Government Act) that had forbidden the promotion of homosexuality or banned any teaching that promoted the "acceptability of homosexuality as a pretended family relationship." In March 2000, the government indicated that the amendments made by the House of Lords to the Local Government Bill required a statement that the legislation was not compatible with Convention rights. The second occasion for the section 19(1)(b) report was the introduction of the Communications Bill (H-6) in 2002, a complex bill that sought to introduce a single regulator for the electronic communications sector. Tessa Jowell, the relevant minister, indicated that if the defense of the ban on political advertising subsequently fails in the European court, the government would be forced to "reconsider" its position. 395 Parl. Deb., H.C. (6th ser.) (2002) 789.
63. See, e.g., the first public session of the Joint Committee on Human Rights. JCHR, First Special Report, 2000-01, H.L. 42, H.C. 296.
64. David Feldman, then legal adviser to the JCHR, indicates that although the committee's tight timetable for comments by nongovernmental organizations does present certain challenges, this form of consultation has often produced useful responses and constitutes "an important part of the Committee's efforts to involve civil society more fully in the process of scrutiny." David Feldman, Parliamentary Scrutiny of legislation and Human Rights, Pub. L. 323, 333 (2002).
65. Id. at 334.
66. Interview with David Feldman, Legal Adviser, Joint Committee on Human Rights, in Cambridge, U.K. (May 7, 2004).
67. Interview with Lord Lester, supra note 47.
68. Interview with David Feldman, supra note 58.
69. Feldman, supra note 56, at 336.
70. Interviews, supra note 46.
71. Interview with David Feldman, supra note 58.
72. A remedial order may be triggered by a judicial declaration of incompatibility by a court in the U.K., followed by a written statement by all parties that they do not intend to appeal, the completion of any appeal process, or the expiry of the time limit for an appeal or, alternatively, a European Court of Human Rights finding against the United Kingdom that a legislative provision is incompatible with an obligation of the U.K. under the ECHR.
73. See Human Rights Act 1998, c. 42, 10(2).
74. Id., Sch 2, paras 2-4. When the nonurgent procedure is being used, an order must be presented in draft and cannot be made until a draft has been approved by an affirmative resolution of each house. In urgent circumstances, an order may be made before it is presented to Parliament, but it ceases to have effect unless it is approved by an affirmative resolution of each house within 120 days of being made.
75. For discussion of the relevant procedures see JCHR, Seventh Report, 2001-02, H.L. 58, H.C. 473, at paras. 14-23.
76. The first remedial order made under the HRA involved an amendment to the Mental Health Act 1983. Its effect was to require that tribunals order the release of patients unless they are satisfied that the criteria for detention continue to be met. See JCHR, Sixth Report, 2001-02, H.L. 57, H.C. 472.
77. Id.
78. and JCHR, supra note 67, at 26-31.
79. Id. at paras. 36-37.
80. 636 Parl. Deb., H.L. (5th ser.) (2002) 1122.
81. This view also revealed in interview with Lord Lester, supra note 47.
82. Lester and Taylor, supra note 35, at 604.
83. Interviews, supra note 46.
84. Id.
85. JCHR, Seventeenth Report, 2001-02, H.L. 132, H.C. 961, at paras. 2-3.
86. Lord Lester, 636 Parl. Deb., H.L. (5th ser.) (2002) 1125. At issue was the controversial Nationality, Immigration and Asylum Bill that, among other things, would allow the secretary of state, on the basis of subjective criteria, to withdraw British citizenship from someone who was born a British citizen; to establish the conditions for removal of an asylum seeker; to change the rules that govern support of asylum seekers; and to change the law for appealing immigration and asylum decisions, including making no appeal available in some circumstances.
87. See id. at paras. 6-15.
88. In its report, the committee recommended: "In future, if a department cannot meet the deadline for replying to our questions about such a Bill, especially one which is programmed in the House of Commons, the Government's business managers should ensure that the Bill's timetable is set to give time for the Committee to Report." JCHR, supra note 75, at para. 4.
89. The civil rights organizations Liberty and Justice have also criticized the government's prelegislative review for providing inadequate information for public evaluation of the merits of decisions that are claimed to be compatible with Convention rights, arguing that effective parliamentary scrutiny of human rights compliance should not be "conducted in the dark, in ignorance of the government's reasons for its certification of human rights compatibility. Neither is it of assistance in ensuring human rights compliance if Parliament is required to engage in a guessing game to extract the government's views piece by piece by asking the right questions." See JCHR, supra note 50, at Appendice
90. and Jonathan Cooper & Roisin Pillay, Auditing for Rights: Developing Scrutiny Systems for Human Rights Compliance 78-79 (2001).
91. Lord Lester. JCHR, Minutes of Evidence, supra note 10, at questions 26-28.
92. The Rt Hon. Jack Straw MP, id., at question 27.
93. Lord Lester, id., at question 28.
94. This new guidance, which replaces the earlier paragraph 39, states that explanatory notes should now not only record the fact that a section 19 statement has been made but also briefly draw attention to the main Convention issues in the bill. Moreover, the notes should describe "in general terms" the most significant Convention issues "together with the Minister's conclusions on compatibility." The guidance emphasizes that legal advice should not be disclosed. It suggests that in some circumstances it might be sufficient simply to state that an issue has been considered, and a particular conclusion reached, while in others, the notes referring to the policy justification for what is proposed should be provided. Finally, the amended guidance advises ministers that when a compatibility issue arises in debate, "Parliament will continue to expect a detailed response... Ministers will wish to be as forthcoming as they can in meeting that expectation whilst abstaining from disclosing legal advice. In this way Parliament will be able to take the Convention rights into account as an integral part of normal debate." Cabinet Office Constitution Secretariat, supra note 36, and Section 19 Statements: Revised Guidance for Departments, available at http://www.dca.gov.uk/hract/guidance/guide-updated.htm.
95. Interview with David Feldman, supra note 58. An example that demonstrates the nature of these explanations, including one of the rare instances of the government's revealing the legal advice it has relied on, may be seen in connection with the Civil Contingencies Bill.
96. The JCHR acknowledged an improvement in the information accompanying a section 19 report when the minister of state at the Home Office provided a statement of the Police Reform Bill's compatibility with accompanying explanatory notes that included, in the committee's words, "a rather fuller account of the Convention rights which the Government has taken into account in drafting the Bill and making a statement of compatibility than has previously been provided in such notes on other Bills." But the committee expressed the view that although this information "enhances the value of the statement under section 19(1 (a) by showing which rights the Minister has considered," the notes still "do not set out in very much detail the Minister's reasons for concluding that the provisions of the Bill were compatible with those rights. The Explanatory Notes would be of more use to each House if somewhat fuller reasoning were to be provided." JCHR, Fifteenth Report, 2001-02, H.L. 98, H.C. 706, at para. 4.
97. JCHR, supra note 51, at para. 2.
98. JCHR, Twenty-Fourth Report, 2001-02, H.L. 177, H.C. 979.
99. JCHR, Ninth Report, 2001-02, H.L. 60, H.C. 574, at para. 9.
100. JCHR, supra note 86, at paras. 16 & 17.
101. Many civil liberties organizations also make reference to JCHR reports when providing their own critical assessments of bills. See, as one example, the Mental Health Act Commission, which cited with approval a JCHR recommendation that the government publish the risk factors and their reliability in assessing "dangerousness" and referred to the JCHR's report on the creation of a human rights commission. Mental Health Act Commission, Placed Amongst Strangers. Tenth Biennial Report, briefing note for the press, Dec. 1, 2003.
102. JCHR, Second Report, 2001-02, H.L. 37, H.C. 372, at para. 5.
103. Article 3 ECHR prohibits a government from deporting foreign nationals without regard to the possibility that their rights to be free from torture or other inhuman and degrading treatment might thereby be infringed. However, article 15 states that derogations may be made from article 5, which guarantees the right to liberty in times of war or public emergency threatening the life of the nation, to the extent strictly required by the exigencies of the situation. Thus, the government considered it a proportionate response to the security threat posed by the foreign nationals to detain them indefinitely by entering a derogation under article 15. For a summary of the effects of the act, see id.
104. The Rt. Hon. David Blunkett MP, 372 Parl. Deb., H.C. (6th ser.) (2001) 923.
105. JCHR 2001-02, supra note 90, at. para. 5.
106. Id. at para. 30.
107. Id.
108. Id. at paras. 17-68.
109. Feldman, supra note 56, at 346.
110. The JCHR expressed the criticism that it had insufficient time to scrutinize such important legislation and issued a second report to draw attention to those concerns it had raised earlier as well as others not previously commented on but which, on further reflection, caused great concern. JCHR, Fifth Report, 2001-02, H.L. 51, H.C. 420, at paras. 2-3.
111. These included the reports of the House of Commons Home Affairs Select Committee, the House of Lords Constitution Committee, and the House of Lords Delegated Powers and Regulatory Reform Committee. See Home Affairs Committee, First Report, 2001-02, H.C. 351; Constitution Committee, Second Report, 2001-02, H.L. 41; and the Delegated Powers and Regulatory Review Committee, Seventh Report, 2001-02, H.L. 45. As revealed in JCHR, Fifth Report, 2001-02, id.
112. In parliamentary debate, the suggestion was made that if the Government's only purpose in detaining people was to ensure there was a safe country to which they could go, then there might not be any need for the derogation order. In its follow-up report, the JCHR indicated that it remained unconvinced that the government had presented a compelling justification for the derogation order. It recommended that the government clarify the purpose of its power to detain foreign suspects, so that this power would be used only where "the government has concluded that it would be impossible or inappropriate to prosecute the person, and is seeking diligently for a safe country." Id. at paras. 4-6.
113. Nevertheless, the Committee still has concerns about "other changes, which could permit a person to be detained indefinitely, even after new evidence or a change of circumstances shows no basis for this detention" JCHR, supra note 98, at paras. 8-15.
114. The original proposed definition referred to people who have "links with" an international terrorist or international terrorist group. The amended version limits this to people who have links with international terrorist organizations, explaining in a subclause that a person has links with such an organization if he or she "supports or assists" it. The committee suggested that, to avoid infringing rights, the word "supports," would have to be interpreted as meaning "supports in a material or active way." Under the sunset clause, the detention provisions in clauses 21 to 23 of the bill will cease to have effect at the end of November 10 2006. Id. at paras. 19-20.
115. JCHR, Eighteenth Report, 2003-04, H.L. 161, H.C. 537, para. 3.
116. A (FC) and others (FC) v. Secretary of State for the Home Department [2005] 2 W.L.R. 87 (HL).
117. Id. at para. 74.
118. Id. at para. 97.
119. The existing detention provisions would otherwise have expired on March 14, 2005, owing to the requirement that the derogation order be subject to annual Parliamentary renewal.
120. HC Bill 61 (2005).
121. JCHR, Ninth Report, 2004-05, H.L. 61, H.C. 389 and Tenth Report, 2004-05, H.L. 47, H.C. 333.
122. A lesser emphasis on party discipline in the House of Lords is considered a principal reason why its members are more willing than members in the House of Commons to take up issues or concerns raised by the JCHR in parliamentary deliberation. Interviews, supra note 46.
123. JCHR, Seventeenth Report, supra note 75, at para. 4.
124. David Blunkett, We are a haven for the persecuted, but not a home to liars and cheats, The Times, Oct. 7, 2002, at 18.
125. JCHR, Twenty-Third Report, 2001-02, H.L. 176, H.C. 1255.
126. 639 Parl. Deb., H.L. (5th ser.) (2002) 14, 17.
127. Id. at 17.
128. The recommendation for recommission was agreed to on October 9, 2002. 639 Parl. Deb., H.L. (5th ser.) (2002) 263.
129. JCHR, supra note 113, at para. 49.
130. Among these were ambiguity in the legislation about whether there is a right of appeal if the secretary of state certifies that the claim of a violation of a Convention right is clearly unfounded, and the possibility of removing individuals from the United Kingdom prior to their having an opportunity to challenge the Home Office's decision before an independent and impartial tribunal. See id., at paras. 32-34
131. and JCHR, supra note 75, at para. 98.
132. At the time of the bill, the U.K. was served by a multitiered system, in which the initial decision by an immigration officer may be subject to administrative review, appeal to an adjudicator, further appeal to an Immigration Appeal Tribunal on a point of law, and finally subject to judicial review by the High Court (with appeals, where permission is granted, to the Court of Appeal and House of Lords) or appeal to the Court of Appeal (Civil Division), followed by a final appeal (with leave) to the House of Lords. JCHR, Fifth Report, 2003-04, H.L. 35, H.C. 304, at para. 52.
133. The bill also proposed the creation of further criminal offenses for asylum seekers arriving without documentation; the extension of the definitions of "safe countries" restructuring the immigration and asylum appeals system; withdrawal of asylum and other support from families who have been refused asylum and refuse to leave the U.K.; giving immigration officers more powers of arrest, search, and seizure; the introduction of electronic tagging for asylum and immigration detainees; allowing higher fees for immigration applications; and giving the Immigration Services Commissioner more powers to regulate immigration advisers. Id. at para 42.
134. Asylum and Immigration: The 2003 Bill, Research Paper 03/88, Library of House of Commons, Dec. 11, 2003.
135. JCHR, supra note 51.
136. JCHR, supra note 118.
137. JCHR, supra note 51, at para. 1.23.
138. Id. at Appendix 1, question 8.
139. Id. at para. 1.11.
140. Id. at Appendix 1, 24-25.
141. Id. at para. 1.21.
142. JCHR, supra note 118, at Appendices, 36.
143. As the minister explained: [T]he Government recognises, on considering the Committee's view of the effect [of the bill] that [it] may be capable of being interpreted as restricting access to the courts to a greater extent than is intended. Its intended purpose is to prevent a person who has unsuccessfully appealed to the Tribunal against an immigration decision, or who had a right of appeal to the Tribunal which he did not exercise, from disputing subsequently the lawfulness of the immigration decision.... It is not intended that [the relevant clause] should affect the remedy of habeas corpus nor any right the person has to damages where he has been unlawfully detained. Nor is it intended to exclude judicial review where a person has no right of appeal against a particular immigration decision. The Government will give consideration to amending this subsection to make its scope clearer. Id. at 45.
144. Id. at para. 58.
145. Id. at para. 57.
146. The JCHR reported that the withdrawal of support could conflict with art. 3 of the ECHR and that the Home Secretary had a duty under section 6 of the HRA, when exercising his discretion, not to withdraw support if the consequences of so doing would leave an asylum seeker in a situation verging on a condition that would engage art. 3. Id. at para. 35.
147. For a hint of the opposition to the clause, see Immigration Wars, The Guardian, Mar. 2, 2004, http://www.guardian.co.uk/law/story/ 0,3605,1159935,00.html, and Immigration Law Practitioners' Association, A Briefing for Peers on the Asylum and Immigration (Treatment of Claimants, etc.) Bill, available at http://www.ilpa.org.uk/briefings/ ILPAHL2ndR.htm.
148. Lord Woolf, The Lord Chief Justice of England and Wales, Squire Centenary Lecture: The Rule of Law and a Change in the Constitution, 63 C.L.J. 317-330 (2004), delivered at Cambridge University (Mar. 3, 2004).
149. The Lord Chancellor Lord Falconer, 659 Parl. Deb., H.L. (5th ser.) (2004) 51.
150. This phrase is taken from a report written a decade ago, advocating a bill of rights, which pointed to a growing concern about the protection of civil liberties arising from "a series of policies and decisions in which the rights of individuals have been overridden in the assumed interests of public policy." A British Bill of Rights, Institute for Public Policy Research, Constitution Paper No. 1, at 5 (1994).