HC Deb 03 February 1998 vol 305 cc913-8
Mr. Oliver Letwin (West Dorset)

I beg to move amendment No. 373, in page 51, line 43, leave out 'or any of the Convention rights'. I move the amendment with some slight trepidation, as I am speaking from a Front-Bench position to which I have no right.

The amendment relates to clause 105 which, as Labour Members are aware, prevents the assembly from legislating in contravention of Community law and in contravention of the European convention on human rights, which are stipulated in the current Human Rights Bill. Our amendment would remove the reference to convention rights. That may seem an odd thing to do, but I hope that I shall be able to explain to the satisfaction of the Committee and that of the Minister why we seek that aim, and perhaps make him pause and reconsider.

Perhaps I may be forgiven for first explaining why we do not seek to remove the reference to adherence to Community law. There is a slightly elaborate, but important, reason that shows why we seek to remove references to convention rights.

Under the European Communities Act 1972, Community law is superior to our own once an adjudication has been produced by the European Court of Justice or, in the absence of such an adjudication or any contest, simply by virtue of its existence. If every Community law had a direct effect—if it applied automatically to the citizenry and to the Government—that would be an end to the matter. There would be no need for the part of clause 105 that relates to Community law because any legislation—in this case subordinate legislation produced by the assembly—which was in contravention of Community law would automatically face a conflict of law and be overruled and overwhelmed by the directly effective Community law in question under the 1972 Act. In addition, as the Secretary of State and his colleagues have repeatedly stressed, because the assembly is a legislature being set up under primary legislation and has subordinate legislative powers only, where there is an Act of Parliament, it will supervene on the assembly.

There are parts of Community law that, at least arguably, do not have a direct effect. That is particularly true of the framework decisions that are envisaged in the Amsterdam treaty, such as the third pillar on justice and home affairs. In those cases, there is a real reason for the part of the clause that relates to the assembly not contravening Community law. Were there not such a clause, if the assembly happened to be the body to which it fell to implement a framework decision, it would be theoretically possible for it, in contravention of the United Kingdom's treaty obligations, but not in contravention of an Act of this Parliament, to legislate in a vein contrary to the intended spirit of that framework decision.

It would then fall to the European Court to adjudicate. In the case where there was no direct effect, it is uncertain how that adjudication would fall. A situation could have been created in which the United Kingdom was in contravention of treaty obligations by virtue of an action of the assembly. For that reason, we do not seek to remove the reference to Community law in the clause.

The situation is altogether different when we come to the European convention on human rights because the ECHR has no superiority to United Kingdom law. There is no Act of Parliament, existent or intended, that would give it such superiority. On the contrary, the way in which the Human Rights Bill has been drafted enacts some, but not all aspects of the ECHR into English law. It defines convention rights as those things that happen to have been enacted by that Bill.

No circumstance could arise, therefore, under which there could be the possibility of the assembly legislating—legally under United Kingdom law—in contravention of those convention rights. By so legislating, it would automatically be in default of an Act of Parliament; as the Secretary of State and his colleagues have repeatedly stressed, the assembly cannot act in that way.

There are only two possible explanations for the inclusion of the reference to convention rights. One is that, alas, we face another example of the Bill having been rather poorly drafted to include an otiose item. The other is a more sinister explanation—that there is the thought at the back of the draftsmen's minds, and hence at the back of some ministerial minds, that there might, at some later date, be a change in the Human Rights Bill, or in some other legislation passed in the House, which would allow the assembly to have a direct relationship with the ECHR.

That would permit a situation to arise whereby something was defined as a convention right by an Act of this Parliament that had not been enacted into English law. Under those circumstances, the assembly would begin to take on a quite different character, because, in relation to a body external to the United Kingdom, it would have a special relationship—one different from that of the United Kingdom Parliament and not sanctioned by it. Were that the intention, we would wish to resist it.

The structure of the argument is straightforward. There is a reason for the reference to Community law in clause 105, but there is either no reason for the convention rights reference because it is unnecessary or there is one and it is malign—to create the possibility of the establishment of a separate relationship. I happen to believe that it is probably error rather than intention that is at work. If that is so, I hope that, after due consideration, the Minister will offer the Committee the grand gesture of removing the offending phrase, perhaps by rephrasing the amendment, in order not to appear to accept our feeble wording.

Ms Julie Morgan (Cardiff, North)

I oppose the amendment. I am surprised by the reference of the hon. Member for West Dorset (Mr. Letwin) to sinister motives among others. The amendment reveals the official Opposition's fear of change of any kind. Not only do the Conservatives oppose constitutional change by opposing devolution, which is bringing power closer to the people, but they appear to be using the mechanism for scrutinising the Bill to express their opposition to the incorporation of the European convention on human rights into United Kingdom law by the Human Rights Bill. That appears to be the motive behind what their spokesperson said today.

It is absolutely right and proper that the National Assembly for Wales should comply with the European convention on human rights, and that the Bill should say so. The assembly will have responsibility for all the functions of the Welsh Office, many of which are obviously fundamentally concerned with the rights covered by the European convention on human rights and its protocols, such as the right to life, liberty and security; respect for private family life, home and correspondence; prohibition of discrimination; freedom of peaceful assembly; the right to join a trade union; and the right to education. The national assembly needs to comply with all those rights, and the Bill should say so.

I believe that the Human Rights Bill will receive its Third Reading in the House of Lords on Thursday 5 February 1998. The UK was the first country to ratify the convention, nearly 50 years ago, and 30 years ago the UK accepted its jurisdiction. I believe that we would all welcome the incorporation of the convention into UK law.

I believe that the motive of the official Opposition in tabling amendment No. 373 is to express concern about those rights applying in UK law, and that they are using these Committee proceedings to express their concern. I believe that the European convention on human rights should be mentioned in the Bill, and that it is essential that the national assembly abides by the duties of the convention.

Mr. Öpik

Amendment No. 373 would remove the stipulation that assembly legislation must be compatible with European Community law. However, the Liberal Democrats think that the stipulation is a good one, and on that basis we oppose the amendment.

Dr. Marek

I agree with the contents of clause 105. I only wish that Ministers would write a few other things into the Bill, given that we had an interesting debate about whether some sort of needs formula would be better than the Barnett formula. If there is a bit of inconsistency, I hope that Ministers will think about the word consistency. It is important.

Mr. Win Griffiths

The debate has been brief but illuminating. I congratulate the hon. Member for West Dorset (Mr. Letwin) on his contribution from the Dispatch Box. He had obviously thought a great deal about what he wanted to say. However—as you would expect, Sir Alan—I could not agree with all he said.

In our opinion, clause 105 makes it clear that the assembly has no power to do anything that is incompatible with European Community law or any of the convention rights. An argument could be made—to a certain extent, the hon. Member for West Dorset did so—about whether it was necessary to mention convention rights, and whether reference to Community law would be necessary only in certain accepted instances.

However, we felt that, in the case of both Community law and the convention, it would be appropriate to ensure that the Bill made the obligations of the assembly absolutely clear. The hon. Member for West Dorset is of course aware of the fact that, as my hon. Friend the Member for Cardiff, North (Ms Morgan) said, the Human Rights Bill, which deals with the issue of the convention, is passing through another place. My hon. Friend made a spirited and convincing argument for our proposal to include the convention in clause 105.

I am pleased that the hon. Member for Montgomeryshire (Mr. Öpik) endorsed the clause from the Liberal Democrat Benches and that, once again, I had strong support from my hon. Friend the Member for Wrexham (Dr. Marek).

Mr. Ieuan Wyn Jones

In order to ensure that the spirit of inclusiveness pervades the whole Chamber, would the Minister accept that Plaid Cymru Members also welcome the inclusion of a reference to the convention in the clause?

Mr. Griffiths

I am very happy indeed to take on board what the hon. Member for Ynys Môn (Mr. Jones) has to say on behalf of Plaid Cymru.

Anyway, the Government decided that although, as the hon. Member for West Dorset said, the Human Rights Bill will apply to the assembly in any event, it should be made clear in the Bill that a failure by the assembly to observe the convention rights should be a devolution issue—that is, within the terms of part I of schedule 6.

I was very pleased that the argument made by the hon. Member for West Dorset was in no sense an effort to allow the assembly to dodge its human rights responsibilities.

We felt that the convention should be mentioned in the Bill because the assembly, in matters such as health, education and social services, will have the ability, directly or indirectly, to touch upon convention rights. It may be a belt and braces question in this case, but we felt that it would be better to do it that way—to make it clear that, although the Human Rights Bill, when enacted, will place a duty on the assembly, we consider this to be a devolution issue in terms of the assembly's responsibilities.

I hope that, having heard those few words of explanation, the hon. Member for West Dorset will be prepared to ask leave of the Committee to withdraw the amendment.

8.15 pm
Mr. Rhodri Morgan

On a point of order, Sir Alan. About half an hour ago, during the debate on clause 90, I indirectly made a reference to the powers under which the director general of the Office of the National Lottery could be caused to resign. I am given to understand that he has since resigned—probably not because I made that reference in the debate on clause 90 of the Bill. Have you received any notice from the Secretary of State for Culture, Media and Sport, indicating that he wishes to make a statement, tonight or tomorrow, confirming either that he has caused Mr. Davis to resign or that Mr. Davis has resigned anyway?

The Chairman

That is not strictly a point of order for me, as the hon. Member knows. I have received no such request, and the hon. Member was rather lucky that I allowed him to make his earlier remarks within order, in the context of the debate that we were having.

Mr. Letwin

I am grateful to the Minister, who entirely understood the brunt of my remarks, unlike the hon. Members who spoke in the debate, who seemed to think that I was suggesting that the assembly should not be forced to obey the European convention on human rights.

Mr. Morgan

But the amendment says that.

Mr. Letwin

No, it does not, because the proposition is that the assembly will in any case be so forced by an Act of Parliament, which is where we believe that the burden should lie.

I shall try to persuade the Minister to think slightly more about whether this belt and braces is only belt and braces or whether it may have unintended consequences. My reason for doing so comes straight from the Minister's speech, because he said that he wanted to ensure that, in the event of a conflict between the subordinate legislation of the assembly and the European convention or the Human Rights Bill, which is to become an Act, that would be a devolution issue. There is some real force in that argument. However, if there is force in that argument, it would also apply to many of the things that have been asserted by Conservative Members during previous sessions of the Committee.

Yesterday, we discussed regulatory appraisals. I asked whether it would be the assembly that decided whether it was, or was not, in a specific case, appropriate for there to be regulatory appraisal, and the Minister assured me and the House that that was not a problem because, under the primary legislation governing particular orders which had been transferred by the transfer order to the assembly, a regulatory appraisal was already assured.

That is a case in which, for the purpose of clarity, it would be advantageous for the matter to be written into the Bill, and it would be advantageous for it to be a devolution issue. Now the Minister and his colleagues have set their face against that in the case that I raised, and in 10 or 20 other such cases in Committee. They have established a tissue of precedents through the rest of the Bill suggesting that there should not be belt and braces, but rather a great economy of drafting.

Wherever there is an underlying Act of Parliament that achieves a certain effect, the Government eschew putting that into the Bill. A lawyer will be able to make the argument with some force that in this particular case there must have been an intention stronger than merely to put it into the Act and make it a devolution issue. I wonder whether the Minister wants to achieve that, and whether it might not rebound on all of us—who knows who might then be in government? Although we are prepared to withdraw the amendment, I wonder whether the Minister might wish to reconsider.

Mr. Win Griffiths

The argument that the hon. Gentleman is developing is essentially speculative. Although I would be prepared to look in detail at some of his arguments, the force of our feeling about the clause and the need for it is unlikely to be changed. I will write to him on the other issue he raises, and I hope that he will withdraw the amendment.

Mr. Letwin

That is a gallant response from the Minister. If, by any chance, this should prod him into the obverse reaction of putting into the Bill more of what we suggested in earlier sittings of the Committee to remedy the imbalance, that would be a greater gain even than the removal of this clause. In that spirit, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 ordered to stand part of the Bill.

Clause 106 ordered to stand part of the Bill.

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