I don’t usually cover reports of the Scrutiny of Acts and Regulations Committee in detail on this blog. Given my job advising SARC on ‘human rights’ (i.e. the Charter), it’d be invidious to engage in the kind of detailed critique I mete out to judgments and the like. Criticism of the reports (which are the Committee’s, and may or may not be based on drafts I prepare) would either be a breach of parliamentary privilege or some sort of weird self-flagellation. Given the role SARC has taken on providing some scrutiny of Statements of Compatibility, laying into them is also tricky. But that’s a pity, as SoCs and SARC Charter reports form the overwhelming majority of Charter analysis out there at the moment. But I do try to note developments in the parliamentary dialogue, and there are a number of interesting ones in Committee’s final Alert Digest for the year.
SARC’s role under the Charter is set out in its very own section:
30 The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.
But what is a ‘report’? Charter s. 30 says what the report has to be about, but it is silent as to the form of the report. Finding an appropriate style for Charter reports is the trickiest part of my job, much tougher than reading bills and researching the wide world of human rights law. The report has to be simultaneously: (a) accessible to lay parliamentarians; (b) defensible in its legal analysis; (c) parliamentary in its language; (d) faithful to Charter s. 30; and (e) as brief as possible. A further foible – familiar to e-mail users – is the difficulty of getting the tone right, with what are, in a sense, critiques of others’ work. These various priorities, as they say in sentencing judgments, ‘pull in different directions’. Given SARC’s tight timelines, it’s impossible to reinvent the stylistic wheel for each issue. But, in these early years, it’s also important not to get trapped by an initial approach.
When the Charter first commenced, Charter commentary by SARC appeared interspersed with the general summary and traditional commentary on particular provisions. That changed in August or so (around the time I started advising), with the adoption of a separate Charter report at the end of the regular report (reflecting (arguably) the terms of Charter s. 30 and the need for the Alert Digest to be conveniently compiled from drafts by two separate legal advisers). A further change in May this year involved dropping the sections explaining why SARC thought a bill was compatible (often just brief summaries of the Statements of Compatibility), again arguably reflecting the terms of Charter s. 30, and also adopting a less wordy style for the report on incompatibility (with less “The Committee additionally notes…” language), in an attempt to ensure that key human rights concerns aren’t lost in a morass of rights-talk dross (a problem that also arises with SoCs.)
Anyway, a further change, appearing in Alert Digest No. 15 of 2008, is the adoption of some stylistic techniques of the UK Joint Committee on Human Rights. (The JCHR isn’t a scrutiny committee, but the problem of communicating human rights analysis to a lay audience remains.) The new feature is the use of short snappy summaries. Here are the ones from today’s Digest:
Summary: The Statement of Compatibility does not address clause 3(2), which extends an existing scheme that engages Charter rights. The Committee will write to the Minister about the statement of compatibility. It draws attention to clause 3(2).
Summary: Clauses 4, 14 and 15 allow a court to determine some proceedings on the basis of evidence that is kept secret from one party and his or her lawyers. In some instances, this may result in the matter being determined without a fair hearing. The Statement of Compatibility does not address why less intrusive schemes aren’t available. The Committee refers the question of possible Charter incompatibility to Parliament.
Summary: Under clause 9(2), only single people may register a caring relationship. The clause may treat married and partnered people less favourably than single people. This possible limitation of the Charter’s equality rights does not appear to have been demonstrably justified. The Committee will write to the Attorney-General about the statement of compatibility. The question of possible Charter incompatibility is referred to Parliament.
The thinking here is to separate out the what from the how in terms of incompatibility. To link the two, some sentences of the fuller Charter report are in bold so that readers of the summary who want to see the Committee’s reasoning can find it easily. That being said, brevity remains the soul of all aspects of Charter s. 30 reporting, as the reports are always primarily aimed at a (lay and busy) Parliamentary audience. Fortunately, I have another outlet for the tediousness and outward flourishes…