§ 33. Mr. Alan Clark (Kensington and Chelsea)What discussions he has had with the Secretary of State for Home Affairs concerning declarations of incompatibility under the Human Rights Act 1998. [63019]
§ The Solicitor-General (Mr. Ross Cranston)The contents of the Human Rights Act were discussed extensively among Ministers in the preparation of the Government's White Paper, in the process of drafting the Bill and during debates in Parliament. The provisions relating to declarations of incompatibility, although complex, are an important and central part of the legislation. Ministers are satisfied with the Act and in particular with the provisions relating to declarations of incompatibility.
§ Mr. ClarkThat does not really take the matter any further. One of the primary functions of the Attorney-General is to ensure that Ministers and the Government stay within the law. The Home Secretary only recently told the House that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given and is not binding on the parties to the proceedings in which it is made. Leaving aside the implicit contradiction between two senior Ministers, what advice would the Solicitor-General give to successful or potential litigants?
§ The Solicitor-GeneralThis country has been an adherent to the European convention on human rights since 1951. All Governments have complied with their international obligations. The legislation that they have introduced has in their view been compliant with the law. Occasionally, courts may decide that there is non-compliance and in future there may be declarations 1095 of incompatibility under the provision but, on the whole, we take the view—as did the Government in which the right hon. Gentleman served—that we comply with our international obligations and so does our legislation.
§ Sir Nicholas Lyell (North-East Bedfordshire)Do the Solicitor-General and the Attorney-General realise that there is a serious problem and unfinished business under the Human Rights Act 1998? Where the courts have declared our law to be incompatible with the convention, the Act provides under section 4(6) that the law none the less remains the same until it is changed by Parliament. However, supposing the Government disagree with the House of Lords and wish the matter to be resolved by Strasbourg so that our law is not out of kilter with that which applies in the rest of the Council of Europe. What would happen then? Which law would apply? Would it be the law before the ruling of the court or after the ruling of the court? Technically, it would be the law that applied before the ruling but, unless the Government make their position clear, neither the citizen nor our courts will know where they stand.
We suggested a mechanism so that citizens and courts would know whether the Government would take the matter on to Strasbourg or force the other party to take it on to Strasbourg. Will the law officers and the Home Secretary find a sensible mechanism to resolve that serious potential problem, and will they or the Home Secretary announce it to the House?
§ The Solicitor-GeneralThat section was a neat solution to the problem of parliamentary sovereignty—it retains parliamentary sovereignty. The courts cannot strike down legislation under section 4. Obviously, we are still obliged to comply with our international obligations under the convention, and we shall do so.