Legislation: Skeleton Bills and Delegated Powers

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I shall focus on a single provision, Section 10 of the Human Rights Act 1998, a classic Henry VIII provision. In essence, it provides that by ministerial order you can amend legislation found incompatible with our convention obligations. Last year, this House in fact sanctioned a remedial order amending Section 9 of the Human Rights Act by allowing extended circumstances in which damages can be awarded in respect of a judicial act.

A Policy Exchange paper at the time questioned both the vires of the order and, more forcefully and persuasively perhaps, its propriety. More recently, in a much more comprehensive report addressing a whole range of suggested amendments to the Human Rights Act, Policy Exchange returned to Section 10, advocating that future legislative change should be secured by primary legislation and certainly that Section 10 should not be used to amend the Human Rights Act itself.

Section 10 has also been the subject of consideration by the Gross committee in its recent independent review of the entire Human Rights Act, and on this issue, its report recommended, first, amending Section 10 to clarify that remedial orders cannot be used to amend the Act itself and, secondly,

“potentially better use of the JCHR powers of scrutiny”

of the remedial order-making power. I should just note that the JCHR, for which in other important respects, the Gross committee also recommends an enhanced safeguarding role under the Human Rights Act, at the time of the 2020 amendment to Section 9, failed not merely to address the vires argument but even to draw the ministerial order to the special attention of the House on the basis, as heralded in its 2001 statement of principle, that

“it appears to make unusual or unexpected use”

of powers conferred by the statute under which it is made.

Coming, finally, to the MoJ consultation paper just issued on the reform of the Human Rights Act, one is heartened to note passages which, as the paper itself notes, go further even than the Gross committee. It says this:

“There is a case for retaining remedial orders under the urgent procedure only, as a means of addressing urgent (and compelling) cases where leaving the law unamended, even for a short period, could be damaging.”


And then there are these important words:

“This must be weighed, however, against the constitutional arguments against executive legislation, which may suggest removing the power entirely.”


How good it is to see in a government document—issued, no doubt, under the aegis of Mr Raab—so plain a recognition of the constitutional argument against executive legislation. We should focus on that.