Of Bills and Rights: Human Rights Proofing Legislation: Comparing the United Kingdom and the Netherlands

'What actually happens before a bill is drafted? Before it is certified [as human rights proof]? I do not know; I do not think many people really know.' This was a fair comment by a long-standing member of the UK Joint Committee on Human Rights. Who is human rights proofing bills before they come to Parliament, and indeed when in Parliament? And how is this proofing done? These questions are under-researched as human rights studies usually focus on the executive and judiciary branches of government. But what does the legislative branch do to safeguard human rights? This book provides answers to these questions by mapping the legislative processes of both the United Kingdom and The Netherlands, and comparing them from an ECHR perspective. It then explains the comparative findings by proposing a theory of accountability. Because of webs of accountability legislative actors in both countries actively seek to make bills human rights compatible. More popularly said: everyone's fingerprints are on the bills to try and render them ECHR proof. The interest of this book lies with the people that support the formal legislative institutions in this human rights quest. Interviews have been held in London and The Hague with over 25 civil servants, working in departments (the ministries of Justice, the Attorney General's Office, the Council of State), as draftsmen (the Office of the Parliamentary Counsel), or in the two parliaments (the JCHR, clerks in the States-General). These frank interviews provide new material and insights into the formal process of turning bills into Acts that ideally are Convention proof.

Table of Contents:
INTRODUCTION Chapter 1 Of Bills and Rights 1. Research question & thesis 2. Conceptualising human rights 3. Comparative research 4. Empirical socio-legal research 5. Choice of jurisdictions 6. Pre-legislative scrutiny 7. Terminology 8. Structure PART I DESCR IPTION Chapter 2 The Hague: The Government and its Ministerial Departments 1. Introduction 2. Governmental policy on legislative quality 2.1. Three decades of debate and criticism 2.2. Government action 2.3. Requirements for legislative quality 3. Initiating bills 3.1. Sources of legislation 3.2. Starting memorandum 4. Drafting bills 4.1. Draftsmen 4.2. Training and information 4.3. The instructions for legislation 4.4. The scenario for legislation 5. The Division for Constitutional Affairs 5.1. Task 5.2. Staff 5.3. Becoming involved 5.4. Working method 5.5. The politics in the working method 6. The Policy Sector for Legislative Quality 6.1. Task 6.2. Staff 6.3. Becoming involved 6.4. Working method 7. The Council of Ministers 8. Political expediency versus legislative quality 9. Summary Chapter 3 The Council of State 1. Introduction 2. Historical background 3. Main functions 4. Councillors and staff 4.1. Royals and other members 4.2. Councillors - background & selection 4.2.1. Selection 'qualities' 4.2.2. Some reflections 4.2.3. Appointment 4.3. Staff 5. Requests for scrutiny 6. Working method 6.1. Internal organisation 6.2. Labelling the bill & time constraints 6.3. Team of rapporteur and lawyer 7. Framework for scrutiny 7.1. Background 7.2. Policy-analytical scrutiny 7.3. Scrutiny of legislative technicalities 7.4. Legal scrutiny 7.4.1. Higher written law 7.4.2. Unwritten legal principles 7.4.3. Fitting into the system 7.5. Empirical research 1998 - 1999 8. Scrutinising human rights compatibility 9. Advisory opinions 9.1. Dicta 9.2. Unanimity 9.3. Response and publication 9.4. Influence 9.4.1. Previous assumptions 9.4.2. Empirical research 2001 - 2002 9.4.3. Own empirical research 10. Summary Chapter 4 The States-General 1. Introduction 2. Historical background 3. Role and characteristics 3.1. Tasks 3.2. Competencies 3.3. Election 3.4. Party discipline 4. Parliamentarians and staff 4.1. MPs 4.2. Senators 4.3. Staff 5. Passage and scrutiny in the lower house 5.1. Submitting bills 5.2. Succinct and extensive legislative reports by Clerks 5.2.1. The extensive legislative report 5.2.2. Influence 5.3. Report by the permanent parliamentary committee 5.3.1. Committee structure 5.3.2. Committee competencies 5.4.3. Committee reporting 5.4. Debating and voting bills on the floor of the house 5.5. Human rights scrutiny by MPs 6. Passage and scrutiny in the upper house 6.1. Speaker and College of Seniors 6.2. Legislative reports by the Division for Substantive Support 6.3. Report by the permanent parliamentary committee 6.4. Debating and voting bills on the floor of the house 6.4.1. Rejections 6.4.2. Influence 6.5. Human rights scrutiny by Senators 7. A separate committee for human rights scrutiny? 8. Enactment of bills 9. Summary Chapter 5 Whitehall: The Government and its Ministerial Departments 1. Introduction 2. Criticism and guidance on legislation 2.1. Debates, criticism, and Government action 2.2. Rights brought home - The Human Rights Act 2.3. Section 19 statements 2.4. The Guide to Making Legislation 3. Initiating bills 4. Developing bills 4.1. Bill teams, policy leads, and departmental lawyers 4.2. The Human Rights Toolkit 5. The Human Rights Division 5.1. Task 5.2. Staff 5.3. Becoming involved 5.4. Working method 6. The Cabinet 6.1. Collective responsibility for bills and policies 6.2. Policy clearance 6.3. Slot and bill clearance 6.4. The ECHR Memorandum 6.5. Human rights scrutiny 7. The Office of the Parliamentary Counsel 7.1. Task 7.2. Staff 7.3. Becoming involved 7.4. Working method 8. The Attorney General 8.1. Task 8.2. Staff 8.3. Becoming involved 8.4. Working method 9. Summary Chapter 6 The Westminster Parliament 1. Introduction 2. Role and characteristics 2.1. Tasks 2.2. Competencies Contents 2.3. Election & appointment 2.4. Party discipline 3. Passage of bills through the Commons 3.1. Three Readings, a Committee and Report Stage 3.2. Public Bill Committees 3.3. Departmental Select Committees 3.4. Library 4. Section 19 statement 4.1. Purpose 4.2. Manner 4.3. Frequency 4.4. Minister's individual responsibility 4.5. No explanation 4.6. Improving the explanation 5. Joint Committee on Human Rights 5.1. Task 5.2. Members and staff 5.3. Becoming involved 5.4. Working method 5.5. Influence 6. Passage of bills through the Lords 6.1. Three Readings, a Committee and Report Stage 6.2. Section 19 statement 6.3. Select committees 7. Ping pong and Royal Assent 8. Summary PART II COMPARISON Chapter 7 Comparison of the Governmental Phases 1. Introduction 2. Initiating and developing policy 3. Government guidance 3.1. Legislative policy 3.2. Soft law instruments 3.3. Level of scrutiny 4. Human rights scrutinising units 4.1. Task 4.2. Staff and their human rights expertise 4.3. Becoming involved 4.3.1. Involvement on request 4.3.2. Involvement out of own volition 4.4. Working methods 4.4.1. Co-operation 4.4.2. Co-operation turning into policing 4.4.3. Safety nets 4.4.4. Effectiveness 4.4.5. Political limits 5. Bill draft ing 6. Clearance in Cabinet or Council of Ministers 7. Summary Chapter 8 Comparison of the Parliamentary Phases 1. Introduction 2. The scrutineers 2.1. Political affiliations and neutrality 2.2. Human rights expertise 2.3. Summary 3. Method of scrutiny 3.1. Selection for scrutiny 3.2. Selection criteria 3.3. Standard of scrutiny 3.3.1. Sources 3.3.2. Standard of scrutiny 3.4. Checklists 3.5. Time constraints 3.6. Unanimity of the reports and advisory opinions 4. Th e influence of scrutiny 4.1. Short term influence on Government 4.2. Short term influence on Parliament 4.3. Long term influence 5. Summary PART III ASSESSMENT AND CONCLUSION Chapter 9 Accountability - A Framework 1. Introduction 2. The origins of accountability 2.1. An emerging concept 2.2. Etymology Contents 3. A general theoretical framework 3.1. The six elements 3.2. Listing fewer elements 3.3. A relationship between accountor and forum 3.4. The process of accountability 3.5. The element of consequences 3.6. The element of standards: prospection & retrospection 4. Accountability at state level 4.1. Three families of accountability 4.2. The purpose of accountability at state level 4.2.1. Objectives of accountability 4.2.2. Delegation or principal-agent theory 4.2.3. Criticism of the chains of delegation and accountability 4.3. Genera of accountability at state level 4.4. Three genera for our research 4.5. The species amongst 'accountability at state level' 5. Summary Chapter 10 Interpretation and Conclusion 1. Introduction 2. Judicial accountability 2.1. Relationship 2.2. Procedure 2.3. Standards 2.4. Sanctions 3. Political accountability 3.1. Relationship 3.2. Procedure 3.3. Standards 3.4. Sanctions 3.5. Communication 4. Administrative accountability 4.1. Relationship 4.2. Procedure 4.3. Standards 4.4. Sanctions 4.5. Communication 4.6. Summary 5. Webs of accountability 5.1. Chain of accountability 5.2. Circle of accountability 5.3. Interdependency and redundancy models 5.4. Summary 6. Anticipating accountability 6.1. Anticipating judicial accountability 6.2. Anticipating administrative and political accountability 6.3. Summary 7. Concluding remarks Appendices Appendix 1A. Interview Guide (The Netherlands) Appendix 1B. Interview Guide (United Kingdom) Appendix 1C. Table of Draft Bills, 2002 - 2010 Appendix 2. The Hague Departmental Process Appendix 3. Council of State Appendix 4. States-General Appendix 5. The Whitehall Process Appendix 6. The Westminster Process Appendix 7. The Dutch Legislative Process Appendix 8. The British Legislative Process Bibliography Bibliography 1. The Netherlands Bibliography 2. United Kingdom

About the Author :
Gijsbert ter Kuile holds a PhD in comparative constitutional law from University College London. He has lectured at UCL, Leiden University, and the Hague Academy for Legislation. For several years, he practised in The Netherlands and Brussels. He now works at the Dutch Central Bank in Amsterdam, where he is involved in the legislative process of the EU banking union.