On 29 November 2017, the long awaited draft of the remedial order seeking to amend s 54 of the Human Fertilisation and Embryology Act 2008 (‘HFEA’) was published. It followed a section 4 Human Rights Act (‘HRA’) declaration of incompatibility (‘DoI’) granted in the case of Re Z on 16 May 2016. That case declared that the inability of single people to apply for a parental order following a surrogacy arrangement was incompatible with the rights of individuals under the HRA.
The consequent remedial order purports to be lawfully granted under the aegis of s 10 and Schedule 2 of the HRA, which, as material, provide:
10 (1) This section applies if— (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right …
10 (2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.
Schedule 2 (2) The power conferred by sub-paragraph (1)(a) includes— (a) power to amend primary legislation (including primary legislation other than that which contains the incompatible provision)
Joint Committee on Human Rights
The Joint Committee on Human Rights has called for submissions by 8 January 2018 from interested groups and individuals. This post, and the consequent submission to the JCHR, will argue that the proposed remedial order in this case would be ultra vires. The remainder of this post will explain and justify that conclusion.
Section 10 and Schedule 2 are an example of what is known as a ‘Henry VIII’ clause – those that allow Ministers, using secondary legislation, to amend primary legislation. It is trite law that Henry VIII clauses must be interpreted narrowly and strictly. As Lord Donaldson observed, in dicta approved by Lord Bingham (in R v Secretary of State for Social Security, Ex p Britnell  1 WLR 198, 204):
a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach. McKiernon v Secretary of State for Social Security The Times, November 1989; Court of Appeal.
Very rarely, Parliament confers a Henry VIII power that can be used on Acts passed after the enabling Act – these can usefully be labelled ‘future-amending Henry VIII clauses’. These are even more controversial than orthodox Henry VIII clauses that only permit amendment of Acts passed before the enabling Act. When Parliament intends to grant such a future-amending power under a Henry VIII clause, it always does so expressly. This can be seen in s 2(2) when taken together with 2(4) of the ECA (‘any enactment passed or to be passed shall be construed … subject to… this section’), s 1 of the Legislative and Regulatory Reform Act 2006 (‘whether passed before or after’), and it can be seen by analogy in s 3 HRA which confers a power on the courts to interpret future Acts (‘whenever enacted’).
There can be little surprise that the most crystal clear wording is a pre-requisite before future-amending power can be said to have been conferred. This is because the power to amend future Acts of Parliament is obviously even more contentious than standard Henry VIII clauses. Parliaments cannot normally bind future Parliaments and the power to amend future Acts arguably veers dangerously close to doing that because in theory it confers on the executive the power to override a later Act no matter what the later Act says.
S 10 HRA is not a ‘future-amending’ Henry VIII clause
No wording granting future-amending power can be found in the Henry VIII clause in the HRA, either crystal clear or otherwise. It is impossible to argue that this was an oversight by the draftsman. Section 3 HRA has such wording and Schedule 2 has the potential to have retrospective effect. This means that the drafter was fully cognisant of the possibility that this Act could contain controversial clauses and powers. Furthermore, even if it was an error to leave out the power, the court can only look at the plain words of the statute. To read the Henry VIII clause as conferring a future-amending power would require a broad and unrestrictive reading of the clause. This would directly contradict interpretive rules laid down in the dicta (of the highest judicial authority) cited above.
When the failure to spell out such powers is juxtaposed with the clear evidence in the original White Paper that the HRA was not supposed to contradict orthodox understandings of parliamentary sovereignty, it is suggested that the HRA’s Henry VIII clause can only be used on Acts passed before the HRA. This would mean that, where a DoI is granted in respect of Acts passed after the HRA, those Acts would have to be amended using the primary remedial procedure that Parliament in fact decided to impose on the executive. That remedy is to secure the support of both Houses through a full Act of Parliament. Approximately two thirds of the Acts subjected to DoIs have been changed using this method.
It might be argued that there is no wording in s 4 HRA that applies to future Parliaments either. It is suggested that this is quite different because a DoI has no legal effect. Indeed, the courts would be entirely at liberty to ‘declare’ that a provision of any Act appeared to be in breach of the ECHR even without s 4 HRA, as the New Zealand case of Taylor v Attorney-General perhaps illustrates. This is quite different from the power granted under s 10 to amend primary legislation using secondary legislation.
It could also be argued that s 10 HRA should be read together with s 4 as providing a general alternative remedial procedure available after any DoI, whenever the ‘offending‘ Act was passed. Leaving aside the problem that this would require an unacceptably broad reading of the relevant provisions, this misses the point that the primary remedy set down by Parliament was the passing of a full Act of Parliament. Also, Parliament specifically limited the s 10 route to where there were ‘compelling reasons’. There is no indication it was supposed to constitute an ordinary, general remedial pathway. On the contrary, in fact, if one reads Hansard.
That the primary remedy should be via an Act is also arguably confirmed by the fact that Acts of Parliament have been the route used to change 15 out of the total of 22 DoIs (as of July 2016). If Parliament genuinely wishes to extend the s 10 power, it can re-enact it, thus permitting the use of the power on any Acts since 1998. It can even alter the wording of s 10 to make it future-amending, if it wishes. What is arguably unacceptable is stretching the meaning of s 10 HRA as originally passed, in order to make it mean something it does not. This is particularly true, it is suggested, in an area as controversial as conferring the power on the executive to amend primary legislation.
Effect of the above analysis on previous remedial orders made under s 10 HRA
There have been seven remedial orders passed under s 10 of the HRA. The first one followed a declaration of incompatibility against the Mental Health Act 1983 in R (H) v Mental Health Review Tribunal and was remedied without controversy.
Three others followed judgments in the European Court of Human Rights. Two of those were relatively uncontroversial exercises of the relevant Henry VIII power. They are the Naval Discipline Act 1957 (Remedial) Order 2004/66 and the Marriage Act 1949 (Remedial) Order 2007/438. The former followed the case of Grieves v United Kingdom (2003) 39 EHRR 51. The latter followed the case of B and I v United Kingdom App No 36536/02. All the above concerned Acts passed before the HRA.
The following four remedial orders all involved legislation passed after the HRA
The first of these concerns the case of Gillan Quinton Application no. 4158/05, 12 January 2010. Strasbourg held that stop and search powers under s 44 of the Terrorism Act 2000 were a breach of Article 8. This led to the Terrorism Act 2000 (Remedial) Order 2011/631. This order was subsequently replaced by s 59 of the Protection of Freedoms Act 2012. This means that from 2012 there is no difficulty because the relevant sections of the Terrorism Act 2000 were superseded by the 2012 Act. The period between the passing of the Remedial Order on 16 March 2011 and coming into force of s 59 of the Protection of Freedoms Act 2012, which received Royal Assent on 1 May 2012, may be problematic.
The remaining three remedial orders follow DoIs by UK courts. The Asylum and Immigration (Treatment of Claimants) Act 2004 (Remedial) Order 2011/1158 follows the case of Baiai where the Supreme Court issued a DoI against s 19 of the Asylum and Immigration Act 2004. This case concerned the blanket prohibition of the right to marry amongst certain groups, found to breach Article 12 of the ECHR.
The Sexual Offences Act 2003 (Remedial) Order 2012/1883 followed the case of Thompson, which declared that s 82 of the Sexual Offences Act 2003 was incompatible with Article 8 ECHR. This was because of the absence of any mechanism for review in respect of those placed on the sex offenders register, which entailed life-long notification requirements.
The final example is the forthcoming remedial order following the case of Re Z which declares s 54 of the HFEA incompatible with the right to privacy. This is because there is no scope for a single person to obtain a parental order. Only couples are permitted to do so. This was conceded by the Government to be discriminatory and led to the DoI.
If follows from the argument made in this post that that all four of the above remedial orders that purport to amend Acts passed after the HRA, are ultra vires. This is because the HRA granted no power to the Executive to amend future Acts of Parliament by remedial order. As noted above, one of those four orders (that relating to the Terrorism Act) has been replaced by subsequent primary legislation and the latest one is only due to come into force in 2018. Hence fresh primary legislation is required in the remaining three cases.
An early draft of an article which includes discussion of the points in this post is available from the author (email: firstname.lastname@example.org).
The author would like to thank Gavin Phillipson and Alison Young for helpful comments on a previous draft. The usual disclaimer applies.
Robert Craig, Doctoral Candidate and Tutor, Durham Law School and Part-time Lecturer, LSE Law School.
(Suggested citation: R. Craig, ‘Why Remedial Orders Altering Post-HRA Acts of Parliament Are Ultra Vires’, U.K. Const. L. Blog (21st Dec. 2017) (available at https://ukconstitutionallaw.org/))