Might the Human Rights Act impose a duty to pass subordinate legislation?
11 December 2020
On 25 November 2020 David Hart wrote a post setting out the central issues in Henshaw J’s lengthy judgment, R (o.t.a. of Aviva & Swiss Re) v. Secretary of State for Work and Pensions  EWHC 3118 (Admin). If you want to remind yourself of the details of this interesting case read David’s post –Successful insurers’ A1P1 claim concerning benefits reimbursement in asbestos claims.
One question David didn’t go into occupies only two pages of the 183 paragraphs but is worth a post on its own. The claimant insurers argued that the defendant Secretary of State had unlawfully omitted to make regulations under the Social Security (Recovery of Benefits) Act 1997 that would have limited the amount of the liability imposed on the insurer by that Act (Section 22(4)). This is because of subsequent developments in the law of tort which made unlimited liability unfair. They maintained that as Parliament had itself been prepared to delegate authority in this area to the Executive, the failure of the defendant to make secondary legislation led directly to their loss. Section 30(1) of the 1997 Act provides that any power under it to make regulations or an order is exercisable by statutory instrument.
The contrary argument saying that this was impermissible derives from section 6(6) of the Human Rights Act which has received relatively little attention in the years since the Act was passed in 1998. The subsection reads as follows:
An “act” may include a failure to act, but does not include a failure to
(a) introduce in, or lay before, Parliament a proposal for legislation
(b) make any primary legislation or remedial order.
In R(T) v Chief Constable of Greater Manchester Police  UKSC 35,  AC 49 Lord Reed considered whether a failure to amend an Order made in 1975, following the entry into force of the HRA, would fall within HRA section 6(6). He noted that the term “legislation”, as used in section 6(6)(a), must include subordinate legislation, given the express reference in section 6(6)(b) to primary legislation. Henshaw J set out paragraph 149 of Lord Reed’s judgment:
I am inclined to think that it was. The power to make orders under the 1974 Act is exercisable in accordance with section 10(2), which requires that a draft of the proposed order must be laid before Parliament and approved by an affirmative resolution. The draft order would appear to me to be properly described as a “proposal for legislation”. That approach leads to the somewhat unattractive conclusion that whether a failure to make subordinate legislation falls within the scope of section 6 of the Human Rights Act depends upon the particular way in which the legislation must be made: an order made by the Secretary of State subject to annulment by a resolution of either House, for example, would not on any view involve the laying before Parliament of a “proposal for legislation”. On the other hand, it is consistent with the respect for Parliamentary sovereignty found throughout the Human Rights Act that the decision of a member of either House whether to lay a legislative proposal before Parliament, whether in the form of a Bill or a draft order, should not be the subject of judicial remedies. As I shall explain, however, I find it unnecessary to reach a concluded view upon the point, which was not the subject of submissions.
Henshaw J considered this to mean that a decision whether to make regulations that would, as in the present case, be laid before parliament after having been made would fall outside section 6(6). This led to a certain amount of ambiguity whether this properly accords with Parliamentary sovereignty. Henshaw J sought to remove this ambiguity by proposing that the dividing line actually drawn in HRA section 6(6) is between secondary legislation that when introduced is a mere “proposal for legislation”, and secondary legislation that already has the quality of actual legislation when introduced, whether or not it is subject to the possibility of annulment.
On that view, there is no question of this being a claim which (as the Defendant puts it) “seek[s] to compel Parliament to legislate”. If section 6(6) had been intended to exclude from the operation of the Act any failure to make secondary legislation other than those categories of secondary legislation as do not require potential Parliamentary scrutiny at all, then it seems likely that that could and would have been more simply and clearly set out.
Accordingly he concluded that a failure to make regulations under section 22(4) of the 1997 Act was not excluded by HRA section 6(6) from the operation of the HRA, and that the claimants’ claim could be cast as one based on failure to make regulations under Section (4). Their claim therefore was as successful as their challenge under Article 1 Protocol 1.
Just a final word about subordinate legislation in general. In Episode 129 of Law Pod UK Emma-Louise Fenelon recently interviewed David Anderson QC, Alexandra Sinclair and Joe Tomlinson on Law Pod UK about the new Public Law Project Plus ca Change: Brexit and the Flaws of Delegated Legislation. There are two avenues open to the executive for passing delegated legislation. The affirmative resolution procedure requires the passing of a resolution by both Houses of Parliament before the instrument becomes effective. As was pointed out in the podcast, neither procedure allows the statutory instrument to be amended. With the affirmative procedure the vast majority of statutory instruments can only be voted down. This makes them, in Alexandra Sinclair’s words, “invulnerable to be defeat.” Only 17 SIs have been rejected in the last 65 years.
The negative resolution procedure enables either House of Parliament to defeat the instrument by passing a resolution or praying that it be annulled. If neither step is taken, the delegated legislation passes into law. The use of the negative procedure is infrequent, and SI’s are rarely debated by Parliament. Bennion points out (Statutory Interpretation, Sixth Edition) that the last occasion in which the House of Commons annulled a statutory instrument was in October 1979. On the podcast, Lord Anderson of Ipswich made a strong case for there being a power to amend SIs, rather than facing both Houses with the binary choice of affirmation/rejection annulment of the whole proposed SI.