POWER TO TAKE REMEDIAL ACTION

HC Deb 24 June 1998 vol 314 cc1115-43

Mr. Garnier

I beg to move amendment No. 62, in clause 10, page 7, line 21, after 'stated', insert 'in writing'.

The Second Deputy Chairman

With this, it will be convenient to discuss the following amendments: No. 63, in clause 10, page 7, line 27, leave out `a Minister of the Crown or'.

New clause 2—No remedial order before determination of European Commission of Human Rights— `.—Where

1. (a) a Court, as defined in section 4(5), has made a declaration of incompatibility in respect of any legislation and where there is no further domestic right of appeal; but
2. (b) it nonetheless appears to a Minister of the Crown that it is desirable in the public interest that the question of compatibility, and all and any issues arising in the proceedings which have given rise thereto should not be the subject of any remedial order unless and until such issues shall have been fully considered by the European Commission of Human Rights or, if admissible, should have been the subject of a judgement, decision, declaration or opinion of the European Court of Human Rights;

he may issue a certificate to the said effect in writing, and in such event the said declaration shall be of no effect pending consideration of the said issues by the Commission and the Court.'.

Mr. Garnier

We now come to one of the two most important debates this evening. The amendments deal with the right of appeal by the Government or a public authority.

Clause 10 is the first of three clauses grouped under the heading "Remedial action". One has only to mention those words for the Home Secretary to come rushing in rather like the US cavalry. I am delighted to see him, so long as he does not think that I am wearing a black hat or considers me to be a dangerous rebel. He has not missed very much, as the Minister will confirm as he leaves to get something to eat.

The amendments are in respect of the remedial action clauses, 10, 11 and 12. Clause 10 deals with the power to take remedial action, clause 11 concerns remedial orders, and clause 12 sets out the procedure under which orders can be made.

8.15 pm

The amendments seek to provide a right of appeal to the European Court of Human Rights at Strasbourg for the Government and for public bodies that are not satisfied with the decision of the final domestic court of appeal in any particular case. The deeper purpose is to ensure that the human rights regime set up under the Bill is one in which the human rights law that applies in the United Kingdom is Strasbourg law—the same body of law that applies to the 30 or so other member states of the Council of Europe—and not a separate body of human rights law applicable only to the United Kingdom.

In other words, we do not seek—nor do we believe that it is the Government's intention—that the Bill should be used by our courts as a substitute written constitution, against which all our legislation should be tested and potentially struck down, notwithstanding that the European Court of Human Rights at Strasbourg would have found no such incompatibility.

One example is abortion. It is unlikely that our courts would go so far, but, in the USA and Canada, the courts have overturned the legislature on such subjects. For our part, the official Opposition wish to ensure that, before the convention is put to any such extreme use, the issue is fully ventilated at Strasbourg and the vital doctrine of margin of appreciation is given full and proper expression.

I hope that I shall command the agreement of both sides of the Committee when I say that we are discussing a matter of considerable constitutional importance. The presence of the Home Secretary—and the fact that he is nodding in agreement—lends support to that argument.

New clause 2 is necessary in order to give the margin of appreciation full and proper expression, and to ensure that the convention is not put to extreme use in the sense that I outlined in relation to abortion in the USA and Canada. It is not generally known that Governments and public bodies do not have any direct right of appeal to the Strasbourg institutions; hence it is necessary to achieve the same result by enabling the ruling of the domestic court to be suspended unless and until the aggrieved citizen takes the matter to Strasbourg.

New clause 2 reads as follows: Where (a) a Court, as defined in section 4(5)"— the courts that have powers to make declarations of incompatibility or, broadly, our High Court— has made a declaration of incompatibility in respect of any legislation and where there is no further domestic right of appeal; but (b) it nonetheless appears to a Minister of the Crown that it is desirable in the public interest that the question of compatibility, and all and any issues arising in the proceedings which have given rise thereto should not be the subject of any remedial order unless and until such issues shall have been fully considered by the European Commission of Human Rights or, if admissible, should have been the subject of a judgement, decision, declaration or opinion or the European Court of Human Rights; he"— the Minister of the Crown— may issue a certificate to the said effect in writing, and in such event the said declaration shall be of no effect pending consideration of the said issues by the Commission and the Court.

Part of the wording of paragraph (b) is redundant, because the European Commission of Human Rights will shortly cease to exist, and a new court system will apply. However, our point is equally valid under the existing arrangements or the new ones. I hope that our courts will only rarely find it necessary to strike down legislation. Likewise, I hope that the Government and public bodies will only rarely find it necessary to use the power. However, it is important that the power should be available. We must be under no illusion: many litigants, with or without legal aid, will push at the frontiers of the new jurisdiction. It is essential that the courts know that Parliament intends that the regime under the European convention should be available in our domestic courts, not a home-grown Bill of Rights regime advocated by some.

That does not mean that we should never extend our human rights and liberties through domestic legislation. In our own English way, we have done so, and have led the world. However, that should be done by tailor-made primary legislation, honed and crafted in Parliament, not by incorporating a convention designed at other times for other purposes.

There will be nothing to prevent our courts from expanding convention rights beyond what might be the view of the Strasbourg court. Under clause 2, our judges will take account of Strasbourg decisions, but, as Sir Brian Cubbon, a former permanent under-secretary at the Home Office has said, they will have a free hand to blaze a trail for human rights".

In the absence of new clause 2, the Bill provides the aggrieved citizen with a two-way bet. If our courts find for him, the public authority or the Government cannot appeal to Strasbourg. However, if the citizen loses, he can appeal to Strasbourg. That will exacerbate the fears of Europhobes that there is an anti-British bias. I am not such a person, but I understand those fears. The new clause should help the Government—I always want to help the Home Secretary, if not the Government as a whole—and should be helpful in the wider context of dealing with the future development of Europe and our relationship with it.

Many a red herring is raised in the great debate about Europe. There is huge confusion between the European Court of Justice and the European Court of Human Rights. There is just as much confusion about the powers that have been taken away from the House under European Communities Acts and what we are discussing. Those are real fears for many, albeit misconceived. We have to deal with them, and there is no better time to do so than now, through the new clause. I am not suggesting that it will eradicate the wrong-headed fears of some, but, if it contributes in some small way to ending those fears, I trust that the Government will at least give it some attention, even if they do not take their hat off to it.

The constitutional implications of passing clause 10 unamended will be considerable. The stresses already placed on our constitution by, for example, section 2(4) of the European Communities Act 1972, and the fears, well founded or not, of a central European bank that is unaccountable to our electors, are manifest. The growth of the Referendum party before the last election, and the growth in other European countries—and to some extent in this country—of nasty, violent nationalism, fuelled by feelings of increasing political impotence and irrelevance among our citizens, are warning signals that we ignore at our peril.

Our constitution has evolved over many centuries. It is flexible and robust, but it is not indestructible. I acquit the Home Secretary of wanting to undermine or destroy the constitution, or of any charge of lack of patriotic feeling for this country. The Government and the party that perhaps one day he will lead must not allow themselves to be seduced by their large parliamentary majority into legislative complacency.

I am happy to see two and a half of the Back Bench Members who make up the Government's majority present in Committee—I count the parliamentary private secretary as halfway on to the Front Bench. Perhaps through a lack of intellectual curiosity, or any curiosity, perhaps through a fear of speaking out of turn, going off message or saying what they think—if they think at all—Labour Back Benchers have been slow to contribute to our debates on the Bill.

That is a pity, because, as hon. Members on both sides accept, the Bill will have greater implications for the constitutional development of the country than many people who have thought about it are prepared to admit. When members of the governing party are conspicuous by their absence, with one or two notable exceptions—perhaps it is because I have been on my feet for too long—

Mr. James Cran (Beverley and Holderness)

Never.

Mr. Garnier

I am most grateful—my worries are further exacerbated.

Labour Members should take part in our deliberations to justify the manifesto on which they were elected and so that they can explain to their constituents what they are doing to our constitution. They will not be able to do that unless they pay attention. Their constituents will want to know what they are doing to advance and protect their interests and the democratic institutions that have served us so well for centuries.

It will do Labour Members little good to stand at the hustings in two or three years proclaiming, "I can do nothing for you, because I gave away my powers as your elected representative to the courts or to bodies outside Parliament, or even offshore"—that is not a dig at the Paymaster General. We should not lightly cut the link between us and our constituents, nor should we break down the barrier that has, wisely and successfully, long separated the three sources of power in our constitution—the Executive, the legislature and the judiciary.

Machiavelli said: Let no man who begins an innovation in a state expect that he shall stop it at his pleasure or regulate it according to his pleasure. I accept that, when we, as convinced parliamentarians, are dealing with the powers of this House over the Executive and the courts, it is easy, if forgivable, to be tempted towards hyperbole, but if the balance that has served our constitution well is to be preserved, we should protect the institutions of democratically accountable government as much as the rights of the citizen to appeal to Strasbourg.

As currently drafted, the Bill reveals an imbalance. The Government—the Crown in Parliament—must be held to account in this place. The Government, through Parliament and elsewhere, must be responsive to the needs, aspirations and fears of our citizens. However, they should not be hobbled when it comes to dealing with cases involving the European convention as integrated into our domestic law by their inability to have recourse directly to Strasbourg. 8.30 pm

Under the Bill and the current arrangements, the Executive—the Government, the United Kingdom—have no right of appeal to Strasbourg. The same applies to all the public authorities we were discussing last week during consideration of clause 6, under which public authorities are defined not so much by who they are as by what they do at any given time. There has been a great deal of discussion in the press, in the Chamber and elsewhere about what constitutes a public authority. The Press Complaints Commission was the classic example, given time and time again. That is hardly surprising, since the press were most concerned about the effects of the Bill upon them.

There are other bodies—I will not list them now, because it would be tedious, and because, if anyone is interested, they can look at the report of our earlier proceedings—which could, in my submission, be unfairly and irredeemably affected by the way in which the Bill is drafted.

I urge the Government to give careful consideration to new clause 2. I am not claiming that it is perfect in every way. I have already admitted that certain parts of subsection (b)—those dealing with the European Commission of Human Rights—will soon be rendered redundant.

I anticipate the remark that the Home Secretary usually so kindly makes at this stage about the fact that he understands the difficulty of drafting in opposition, because he spent 18 years doing it. I can assure him that I have no intention of spending more than five years doing it. I look forward to occupying the Government Benches, together with all my hon. Friends, after the next election. In the interim, doing the best we can, we are happy to put before the Committee new clause 2. I hope that the Home Secretary will respond, as he usually does, in a reasoned and courteous way.

Amendment No. 62—I will deal with the broader issue first—requires the insertion of "in writing" after the word "stated" in clause 10, line 21. The clause should then read: This section applies if— (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies— (i) all persons who may appeal have stated in writing that they do not intend to do so".

The Home Secretary may be able to deal with that easily, because there may be some precedent or custom and practice which says that, throughout the Bill or in similar Acts, when a person wishes to say something with regard to his rights of appeal, it must be done in writing. It is not clear from the Bill as I understand it, but there may be other sources of learning that the Home Secretary keeps up his sleeve to deal with Opposition amendments such as this. I look forward to hearing what he has to say.

Amendment No. 63 suggests that we should leave out the words: a Minister of the Crown or in clause 10(1)(b). At present, the subsection states: it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention. This may bring a smile to the Home Secretary's face, but I have to confess that I fail to understand that amendment, and I will say no more about it.

The Secretary of State for the Home Department (Mr. Jack Straw)

I accept entirely what the hon. and learned Member for Harborough (Mr. Garnier) said about the importance of the role of Parliament. I have made that clear throughout the debate. As we spelled out in the White Paper and have spelt out continually ever since, we have been acute about the need to ensure that nothing in this very important Bill undermines the sovereignty or the powers of this Parliament.

The hon. and learned Gentleman delivered an elegant homily about the fact that we should not give away our rights to the courts or compromise the separation of powers. He said that it was important to protect the institution of democratic government as well as the right of electors. I not only subscribe to that, but have sought to ensure that those principles have been put into effect in the Bill.

As the hon. and learned Member has pointed out, clause 10 is an important clause. I suspect that we will debate at even greater length the issue of remedial orders on the next group of amendments, but I should like to respond to the points made on amendments Nos 62 and 63 and new clause 2.

Clause 10(1) describes the circumstances in which the power to make a remedial order applies. The first—clause 10(1)(a)—is where a domestic court has made a declaration of incompatibility and there is no prospect of an appeal, either because those who may appeal have stated that they do not intend to do so, or for other specified reasons. The provisions about appeals were inserted in another place to guard against the possibility of legislation being amended by a remedial order in response to a declaration of incompatibility which was then overturned on appeal.

Amendment No. 62 would require persons stating they do not intend to appeal to do so "in writing" before the power to make a remedial order could be exercised. That is what is likely to happen anyway, because the only way in which clause 10(1) can operate in practice will be for the person making the order, if he wishes to proceed urgently before the time for appealing has expired, to take proactive steps by seeking statements from all interested parties to the effect that they do not propose to appeal. I should like to thank the hon. and learned Gentleman for spotting what could have been an ambiguity in the Bill. Amendment No. 62 is excellently drafted, and we propose to accept it.

The second circumstance in which the power to make a remedial order applies—clause 10(1)(b)—is where the European Court of Human Rights has found a violation of the convention in proceedings against the United Kingdom, and it appears to a Minister of the Crown or to Her Majesty in Council that a provision of legislation is incompatible with an obligation of the United Kingdom arising from the convention.

The hon. and learned Member was generous enough to say that he did not entirely understand amendment No. 63. In the small hours of the night during a Finance Bill Standing Committee in 1981, I think, I had to say something similar about an amendment that I had drafted myself. Embarrassingly, my words were then included in a textbook on legislation in Parliament, written by my hon. Friend the Member for Great Grimsby (Mr. Mitchell)—so I understand the problem. From what the hon. and learned Gentleman has said, I assume that he will seek leave to withdraw it.

Mr. Garnier

Perhaps.

Mr. Straw

I suggest that the hon. Gentleman should do so.

The point of having the Minister of the Crown is that he or she normally has to exercise those duties. The burden of the hon. and learned Gentleman's remarks is contained in new clause 2, which provides for no remedial order to be made following a declaration of incompatibility if a Minister of the Crown considers that the issues raised by the declaration should be considered in Strasbourg.

New clause 2 seems to be based on two assumptions. The first is that a declaration of incompatibility will have some legal effect unless a ministerial certificate is issued. The second is that the Government must make a remedial order following a declaration of incompatibility. Neither of those assumptions is true. As clause 4(6) makes clear, a declaration of incompatibility does not affect the continuing validity, operation or enforcement of the provision in respect of which it is given. That is a crucial part of the Bill to preserve the sovereignty of this Parliament.

In most cases, a Minister's view is endorsed by Parliament, and if a Minister decides that it is not appropriate for the Government to take action in respect of the declaration of incompatibility, no action need be taken. In controversial cases, the Minister's decision might have to be endorsed by the House. Indeed, the Opposition could force it to be endorsed, so it would always be subject to that possibility, which is right.

Nor is there any obligation on the Government to remedy any incompatibility by means of a remedial order. We expect that the Government will generally want to do so, just as successive Governments have sought, as we will discuss on the next group of amendments, to put right any declaration by the Strasbourg court by way of legislation or Executive action in the United Kingdom. That is the effect of clause 10, and it is the logical consequence of our decision that the courts are not to have a power to set aside Acts of Parliament under this Bill.

Therefore, although I understand the point of new clause 2, it would not achieve anything. Nothing in it could not equally be achieved—and will not equally be achieved—within the framework of the Bill as it stands.

Mr. Maclennan

Obviously this is hypothetical, but in the event of the circumstance that he described arising and a Minister recommending that no action be taken, does the right hon. Gentleman assume that the Government would feel obliged to derogate from the relevant provision of the European convention?

Mr. Straw

No, I do not. That would arise only if there had been an adverse judgment by the court—I was about to deal with that. Normally in such a circumstance, if the Government had refused to accept a clear declaration of incompatibility—for example, by the Judicial Committee of the other place, the highest court of the land—the victim, who would be the applicant in the action, would take the matter to the Strasbourg court. In practice, in most cases, an appeal to the European court in Strasbourg would naturally follow.

The assumptions implicit in new clause 2 and some of the other remarks made by the hon. and learned Member for Harborough demonstrate a misreading of the convention—that it is somehow possible for a Government party to effect an appeal to the Strasbourg court. The convention is so drawn that the only parties that can make an application to the Strasbourg court are the citizens, or residents, of the country, as the convention exists to protect the rights of the individual against the state.

A state has never, under the convention, been able to take action before the Strasbourg court. Given the conceptual, jurisprudential structure of the convention, that would be entirely otiose—it would entirely reverse the convention's purpose. Even if the House of Commons was determined that the state should have a right of appeal in the Strasbourg court against the decision of a higher court in this country, that could not be effected under the convention.

I should also say to Conservative Members, whose interest in the sovereignty of Parliament is at least as strong as ours, that, if we were to seek to do that, we would genuinely be open to the charge that we were undermining the power of Parliament by setting above it a supreme international court with powers over this country's courts. The only way in which to avoid that would be to withdraw from the convention, which we would not want to do. We believe that the way in which the convention has been applied over the years, particularly with the margin of appreciation, is sensible, so I suggest that it would not be desirable to go down that road.

Mr. Lansley

The Home Secretary will correct me if I am wrong, but is it not entirely possible, under new clause 2, not so much that the Government would contemplate resolving issues through the European convention on human rights or the court, as that parties to those proceedings might do so?

8.45 pm

Mr. Straw

Of course it is correct to say that parties to the proceedings may voluntarily decide to take a case to the Strasbourg court. Even if there is a declaration of incompatibility, and a remedial order amending primary legislation is put through the House of Commons and the other place, it is still open to the other party to the proceedings to take the matter to the court, although I suggest that they would get short shrift if they sought to do so.

New clause 2 would effect a right of appeal to the Government. It tries to get around the way in which the convention has been constructed by requiring the victim to exercise his existing rights to go to Strasbourg so that the case could be considered there before anything happened at home.

I do not think that that is a sensible way in which to proceed. In practice, if the Government and Parliament refused to act on a declaration of incompatibility, the so-called victim—the citizen—would almost certainly take the case to Strasbourg. If the victim did not, but accepted that the Government and Parliament were right to ignore the declaration of incompatibility, I see no reason why anyone would want to pursue the matter to Strasbourg. For those reasons, I hope that the Opposition will see fit to not to press new clause 2 and amendment No. 63.

Mr. Garnier

The right hon. Gentleman is perfectly right to suggest that the new clause is a device. It has to be a device, for the reasons that I had hoped I had explained and that he himself expressed—the state does not have a right to go to Strasbourg; it is for the citizen to do that.

What happens in this example, however? A case fought between a citizen and a public authority—be it a Government authority or some other public authority—eventually reaches the Judicial Committee of the House of Lords, which says that the legislation we are discussing is incompatible with the citizen's conventional rights. The citizen therefore wins in our domestic courts. However, the political will of Parliament and the advice of the Government are that that is a mistake.

What does the Home Secretary suggest the Government—it does not matter which Government—should do in those circumstances? Under the Bill, the Government are stuck. The purpose of new clause 2 is to overcome a logjam.

Mr. Straw

Let me try to put the hon. and learned Gentleman's mind at rest. There will be no logjam. If there had been a declaration of incompatibility, and the Government and Parliament had decided not to act on it, I would guess that, in most cases, the applicant would take the case to Strasbourg. That almost certainly follows. However, in the rare examples where that did not happen, the status quo ante would obtain because of clause 4(6), which makes it clear that A declaration under this section ("a declaration of incompatibility")—

1. (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
2. (b) is not binding on the parties to the proceedings in which it is made."

If the issue before the Judicial Committee of the House of Lords was, say, whether a statutory instrument was ultra vires, the Committee could use its existing powers to deal with that issue. If, however, the issue was a piece of primary legislation that was incompatible with the convention, on which the Judicial Committee had made a declaration that the Government and Parliament had decided not to accept, and on which there had been no appeal to Strasbourg, the original piece of primary legislation would stay in force. There would be no logjam, and that is why the new clause is not necessary.

To set up, by whatever device, a system by which the Government of the day—and therefore Parliament—would be able to appeal to the Strasbourg court, would be to elevate that court to a position of supremacy over Parliament, a circumstance that very few Members on either side of the House wish to bring about.

Mr. Maclennan

This interesting debate has revealed, as the hon. Member for Gainsborough (Mr. Leigh) earlier implied, that there are significant consequences in the Bill for the sovereignty of Parliament. If, after a declaration of incompatibility, the Government of the day decide not to act but to recommend an amendment to the House, as the Bill prescribes, it will, the Home Secretary tells us, be none the less probable that the matter will go to Strasbourg. It is unlikely, to say the least, that the court there will differ from the highest court in the United Kingdom on the interpretation of the issue. All that will happen is that the remedy for the aggrieved party will be substantially delayed.

At some point, however, the issue would arise whether the Government would accept the ruling of the court in Strasbourg. I think that the Bill maintains a fiction. If the Government took the view that a particular incompatibility was one with which they would wish to live—if, in other words, they decided not to implement the finding of the highest court in our country—the proper step would be to derogate straight away and to indicate that, for reasons of public policy, which would be defensible under the terms of the convention, they did not wish to give effect to convention rights.

I make that point only because I do not share the general view, expressed by the Government and echoed by the official Opposition, that it is desirable to sustain parliamentary sovereignty, which I believe is a doctrine at least 100 years out of date. I would prefer a genuine separation of powers, rather than lip service being paid to it, and sovereignty to rest with the people.

Mr. Leigh

I do not agree that parliamentary sovereignty is an idea 100 years out of date, but the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) has done the Committee a service by revealing the fiction that lies at the heart of clause 10—the fig leaf that preserves parliamentary sovereignty.

At this late hour, it is easy for us, in a sparsely filled Chamber, to be lulled into a false sense of security by the charming way in which the Home Secretary debates these matters, which he does very effectively. My hon. and learned Friend the Member for Harborough (Mr. Garnier) made a powerful speech, which may be read again in future years. I hope that I do not resort to hyperbole, but it was a fine speech, which revealed some of the problems of which the House should be aware.

The new ministerial power to amend legislation by order is very broad. It is a virtual carte blanche, which grants Henry VIII powers to Ministers. Ministers should not lightly dismiss our fears.

Mr. Straw

indicated dissent.

Mr. Leigh

I am glad to see the Home Secretary shaking his head.

Mr. Straw

The next group of amendments includes several tabled by the Government that pick up concerns expressed by hon. Members, especially Conservative Members. They severely restrict the circumstances in which remedial orders could be made.

Mr. Leigh

I am grateful for that intervention, which makes it clear that the Home Secretary and the Government take our fears very seriously. Again, I do not want resort to hyperbole, but it has become fashionable to decry our record on civil liberties and human rights. We have nothing to be ashamed of over the past 200 years. With its unwritten constitution, our country has been a beacon for civil liberties. Amending the constitution is a very serious matter, as I am sure everyone realises. I hope that we are not taking a dangerous course.

Let me describe what could happen. Under clause 10(3)(b), a Minister can make such amendments "as he considers appropriate". He can amend primary and secondary legislation to make it compatible with the convention. United Kingdom courts can make declarations of incompatibility under clause 4(6), which the Home Secretary was searching for earlier. Courts can make a finding that a provision of UK statute law is incompatible with the convention. Strasbourg can also make such a finding.

This is where we have the fig leaf of parliamentary sovereignty. Such directions are not meant in themselves to strike down the legislation, as happens in Canada and the United States. The ministerial power arises once a final court order has been made that cannot be further appealed against and in which there is a finding of incompatibility, or—this is the important point in clause 10(1)(b)—if it appears to a Minister that a finding of the European Court of Human Rights in proceedings involving our country means that a provision of legislation is incompatible".

I believe, and I think that my hon. and learned Friend the Member for Harborough believes, that that power should and must be more narrowly drawn. It might appear to a Minister that a finding of the Strasbourg court requires legislation to be amended, even though that was never the intention of the court. If the power is to be given, it should be invoked only when there is a judgment from Strasbourg that states unequivocally that there is incompatibility. That would be a safer course.

I hope that the right hon. Member for Caithness, Sutherland and Easter Ross will not accuse me of being a Euro-enthusiast at this point, but, in my respectful judgment, I believe that to be a safer course than leaving such matters to the personal opinion of the Minister. The Bill refers to such amendments … as he considers appropriate", but I believe that that gives too much power to the Minister to overturn or interfere with legislation passed by Parliament. The words "such amendments as are necessary" would be preferable.

9 pm

The Government are giving strong powers to their Ministers; we should be aware of that. To defend his position, the Home Secretary said that it was not simply a matter of giving powers to Ministers, because the power to make remedial orders is subject to parliamentary scrutiny; but the Committee should be aware that that is very limited scrutiny.

Only 60 days are allowed for consideration of draft remedial orders, but there is no indication of how much parliamentary time will be given to the actual debate. Debates on statutory instruments are often limited to 90 minutes. Members of Parliament and peers will not be able to move amendments to the Government's draft order-only to accept or reject it in its entirety. Urgent remedial orders can be made without initial parliamentary consideration, and 40 days are allowed, after which the order must be approved or lapse. As the calculation of the period for consideration does not include any time during which Parliament is dissolved, prorogued or adjourned for more than four days, such an order could be in force for a considerable period without any parliamentary scrutiny. I hope that I have made my point.

I believe that we are giving unprecedented powers to Ministers. As the right hon. Member for Caithness, Sutherland and Easter Ross said, the Government, who are rightly concerned about the notion of parliamentary sovereignty, are desperately trying to erect a legal fiction to protect that notion, which is precisely that—a fiction. The course on which we are embarking is dangerous indeed.

Mr. Grieve

I find the comments of my hon. Friend the Member for Gainsborough (Mr. Leigh) extremely compelling in some ways. I have listened with care to what has been said in the debate. However, I think that we are in danger of focusing too closely on new clause 2 when considering clause 10, rather than looking at the next set of amendments, which are of equal—in my view, greater—importance, although I accept that the two groups are intimately linked.

The problem, which I hope the Home Secretary understands, and the issue we are debating is the extent to which new clause 10 is, as my hon. Friend says, merely a fig leaf to protect parliamentary sovereignty; and the extent to which there will really be a tandem movement of courts and Parliament in enforcing human rights, when, at the same time and in certain circumstances, Parliament may express a view that differs from that of the courts. The difficulty facing Opposition Members is that there is quite a lot of material to suggest that, in presenting the legislation before Parliament, and especially when it started its passage in the other place, the assumption has been made—and certainly expressed in the Lord Chancellor's speeches—that, if an incompatibility is found, there will be a rubber-stamp procedure to remedy it.

New clause 2 is concerned not with derogation, but with the odder circumstance of its being concluded that their Lordships in the Judicial Committee in the other place have come to a wrong conclusion, which would not be endorsed by the European Court of Human Rights. I confess my view that that is a somewhat unlikely state of affairs, and I should be quite content not to press new clause 2, as long as I was happy and confident on the other aspects of clause 10 that we are to debate soon.

I say to my hon. Friends that, if the Judicial Committee of the other place has ruled that there is incompatibility, it is difficult to see where the Government will get at home a contrary viewpoint to make them wish to take the matter to the European Court by the device provided for—we accept that it is a device. I suppose that one might consult learned lawyers, but one might assume, I think safely, that the learning present in the Judicial Committee would probably amount to the best advice that the Government could obtain.

There is nothing new about Governments obtaining the advice of the judiciary. Casting my mind back to what we read of the middle ages, the statute of treason, which is one of the earliest pieces of criminal statute governing a particular matter still in existence in this country, was the result of consultation with the judges on what treason actually was. The result of that consultation was then embodied in legislation. I do not find any great difficulty in saying, "The Judicial Committee has advised, and Parliament can take it or leave it."

The anxiety that, at that point, people might say, "We believe that the European Court would come to a different conclusion," appears to me to be somewhat far fetched. At that stage, the time would have come for Parliament to bite the bullet. The anxiety is whether Parliament would feel able to do so and, if necessary, take steps that might technically amount to a derogation if the matter were challenged later in the European Court. However, that is a hypothetical question.

I think that the Home Secretary is correct when he says that, as there would be no derogation, it would be up to the Government, the House of Commons and Parliament generally to come to a conclusion based on the opinion that they had obtained from the judges.

With those remarks, I prefer to reserve my comments for the next set of amendments, which I think are crucial and bear on one of the central issues in the Bill. I would not be disposed to press the point of new clause 2, but I am grateful that it has helped us to ventilate what I consider an important issue. It would seem that it is intimately linked with the next section of the Bill that we are to consider.

Mr. Lansley

I shall raise one or two points that relate to new clause 2. The Home Secretary did something of a disservice to my hon. and learned Friend the Member for Harborough (Mr. Garnier): judging from remarks that he made in an earlier debate, my hon. and learned Friend was only too aware of the fact that Governments would not be able to go to Strasbourg to try to test before the European Court of Human Rights. the issues that we are considering.

I am sure that it was contemplated by my hon. and learned Friend that the circumstances that arise under new clause 2 relate to circumstances where parties to proceedings may well wish further to seek conclusions from the European Commission or the European Court of Human Rights.

As I listened to the Home Secretary—I am often persuaded by what the right hon. Gentleman says—I took the view that, on this occasion, there was a major gap. Perhaps the Home Secretary can resolve the issue for me.

In so far as the right hon. Gentleman rested on clause 4(6), that would be the correct approach if it settled the matter in relation to all the implications of a declaration of incompatibility by a court. However, as we have heard in previous debates, the position is not quite like that. First, as I understand these matters, if a court finds that secondary legislation is incompatible, in effect it makes a declaration of incompatibility. As a consequence, that secondary legislation is quashed.

Although clause 4(6) states that the "continuing operation or enforcement" of provisions is not affected, surely that is not the case with secondary legislation, and they are directly affected.

I have a second and slightly related point to put to the Home Secretary. If a court makes a declaration of incompatibility and, as a consequence, someone seeks to sue on the basis that a public authority had acted unlawfully, might there be scope for the court to consider that declaration of incompatibility in relation to secondary legislation, and to act on the declaration and find that the public authority had acted unlawfully?

In both those circumstances, might there not be a desire among Ministers for the parties to proceedings to argue to a conclusion, including resolution through the Commission and the European Court of Human Rights, as new clause 2 contemplates? On that basis, the Home Secretary's position, while true for primary legislation, does not meet the argument, and I should be grateful for clarification.

Mr. Straw

The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), who, I am sorry to say, has just left the Chamber, made a sweeping assertion with which I profoundly disagree. He said that he regarded the doctrine of parliamentary sovereignty as 100 years out of date. The doctrine is of much greater antiquity than that.

Mr. Grieve

The Home Secretary was present during many of the proceedings on Scottish devolution legislation and he will have learnt that many Scots do not recognise parliamentary sovereignty as a doctrine—which may explain the view of the right hon. Member for Caithness, Sutherland and Easter Ross—because they claim that it did not exist before the Union. The Home Secretary may agree that that also explains why the Scots Parliament has hardly a footnote in history.

Mr. Straw

I shall not be tempted on the latter point, but I shall make the chronological point that the doctrine of parliamentary sovereignty can certainly be traced back to 1689 and the Bill of Rights. A few years later, in 1707, Scotland and England formed a Union, which continues, and will continue after the implementation of the Scotland Bill.

My second point in response to the right hon. Member for Caithness, Sutherland and Easter Ross relates to derogations. He said that, if there was a declaration of incompatibility by the Judicial Committee in the other place, we could derogate from that. Derogation arises only from the convention.

In addition, it is not open to member states to derogate judgment by judgment from decisions of the European Court of Human Rights in Strasbourg. It is possible to derogate only in case of war or other emergency that threatens the life of the nation. As hon. Members will see if they turn to the back of the Bill, schedule 2 sets out the one derogation that this country has made in respect of the convention, which arises from the threat of terrorism and the need for us to operate the Prevention of Terrorism (Temporary Provisions) Act 1984.

The hon. Member for Gainsborough (Mr. Leigh) suggested that clause 10 was a fig leaf, and that it gave Ministers carte blanche to amend matters. It is in no sense a fig leaf. The powers of any Minister to bring a remedial order before the House or the other place are very circumscribed.

However, as I shall spell out when we discuss the next group of amendments, we have accepted the strong views expressed in the other place and by many hon. Members in this House about the need further to constrain the opportunity for Ministers to bring remedial orders. I accept what the hon. Member for Beaconsfield (Mr. Grieve) said on that matter. By the way, I reassure him that, because of the rules of the Committee, we would not divide on new clause 2 before dealing with the next group of amendments.

I say to the hon. Member for South Cambridgeshire (Mr. Lansley) that the courts already have power to strike down subordinate legislation, and they do so with some regularity. If they feel that a statutory instrument has been introduced in a way that is ultra vires the primary legislation, they can do so. When we discussed the matter in detail in the Cabinet Ministerial Sub-Committee on Incorporation of the European Convention on Human Rights, it seemed to us that, as that power was already there, it would be very odd not to continue to allow courts to strike down subordinate legislation if it was incompatible with the Bill.

9.15 pm

In a sense, that does not affect the sovereignty of Parliament, because it is open to Ministers to try to put the subordinate legislation right by simply introducing further regulations. That happens quite often, as any Minister who has held office in the Department of Social Security can testify.

The issue is whether the courts have power to strike down primary legislation, and we are clear in our minds that they should not.

Mr. Lansley

rose—

Mr. Straw

May I debate this point? Then, of course, I shall give way, but time is short, as we need to press on to the next group of amendments.

A question arises, which is dealt with under clause 4(3), in respect of a small category of inevitably incompatible subordinate legislation which cannot be quashed by the courts and can only be declared incompatible because of the nature of the primary legislation that brought about that subordinate legislation. In those cases, again to ensure that the sovereignty of Parliament is not inadvertently challenged by striking down subordinate legislation and, in so doing, striking down the primary legislation, we have adopted the other approach and said that, in those cases, all the courts can do is to make a declaration of incompatibility in respect of the subordinate legislation as well.

Mr. Lansley

I accept what the Home Secretary says about primary legislation, but, in this instance, is not the question not so much about the sovereignty of Parliament as about whether it is desirable that there should be a mechanism, as in new clause 2, for the Government to suspend, as it were, the courts' quashing of secondary legislation in this respect, based on convention rights, until the interpretation of convention rights has proceeded all the way through to the European Court of Human Rights, where the Government consider that to be desirable?

Mr. Straw

I am sorry; I do not accept that. We might equally take the example of social security, but let us take the prison rules as an example.

The prison rules are subordinate legislation, which I change from time to time, under the powers given me under the prison Acts. If they were struck down for incompatibility with the convention, the important thing would be to introduce new prison rules that were compatible with the legislation, not to leave a hole in the provision.

On the other hand, if the prison Acts were declared incompatible, it would be a much more serious matter, and the important thing would be for the Government and Parliament to make a judgment about whether to take action in respect of that declaration. We have dealt with that.

I invited the hon. and learned Member for Harborough to withdraw his amendments, but I need not have done so, because I now invite the Committee to approve amendment No. 62, which we accept. I hope that the hon. and learned Gentleman will stay silent and not press amendment No. 63 to a vote, or even move it.

Mr. Garnier

I shall not stay silent, for one reason only: because I want to thank the Home Secretary for surprising me by accepting our amendment No. 62. It is something of a record, certainly in the context of the Bill, if not in the context of legislation introduced by the Government since May 1997.

I shall not mention the points raised by my hon. Friends, because the Home Secretary has responded to a number of them. I thank them for their contributions, because, as we all agree, we have discussed a particularly important area of the Bill. I suspect that the debate will not go away. The fact that my hon. Friend the Member for Gainsborough (Mr. Leigh) spoke to the next group of amendments during this debate is not a criticism; he has highlighted an especially important constitutional problem.

In respect of my amendments, I wonder whether you, Mr. Lord, would remind me of where I am procedurally.

The Second Deputy Chairman

We are dealing with amendment No. 62. For the time being, that is all that we have to deal with.

Amendment agreed to.

Mr. Garnier

I beg to move amendment No. 64, in clause 10, page 7, leave out lines 33 to 45 and insert— '(2) The Secretary of State shall, within 15 sitting days, lay before each House of Parliament a statement setting out the grounds of the incompatibility and each House of Parliament shall—

1. (a) in the case of a declaration of incompatibility under section 4, by resolution signify its agreement or disagreement with the declaration;
2. (b) in any other case, debate the statement.

(3) If either House of Parliament by resolution under subsection (2)(a) signifies its disagreement with a declaration of incompatibility, the case in relation to which the declaration was made shall stand in abeyance, save for any appeal to the European Court of Human Rights. (3A) If both Houses of Parliament by resolution under subsection (2)(a) signify their agreement with a declaration of incompatibility, or when both Houses have debated a statement under subsection (2)(b), as the case may be, the Secretary of State shall lay before Parliament a report containing proposals for amending legislation to remedy the incompatibility. (3B) In any case where it is necessary to amend primary legislation in order to remedy the incompatibility, amending legislation shall take the form of an Act of Parliament unless the Secretary of State considers that there are exceptional reasons which make it impracticable to proceed by Act of Parliament; and in that case he shall state those reasons in the report, and may by order make such amendments to the primary legislation as he considers appropriate. (3C) An order under subsection (3B) above shall not be made until a draft of it has been laid before, and approved by a resolution of, each House of Parliament.'.

The Second Deputy Chairman

With this, it will be convenient to discuss the following amendments: Government amendments Nos. 144 to 146.

No. 36, in page 7, line 45, at end insert— '(3A) Any amendment to legislation, whether primary or subordinate, shall be no more extensive than is required to reverse the specific incompatibility specified by the declaration of incompatibility specified by the declaration of the court made under section 4 or the specific finding of the European Court of Human Rights.'.

Government amendment No. 147.

No. 65, in page 8, line 1, leave out 'conferred by subsection (2)' and insert `to make amending legislation by order'.

Government amendment No. 131.

No. 66, in page 8, line 6, leave out '(2) or (3)' and insert '(3B)'.

Government amendment No. 132.

No. 67, in clause 11, page 8, line 13, after 'contain', insert 'only'.

No. 68, in clause 11, page 8, line 16, at end insert `but shall not have effect earlier than the date on which the proceedings which led to the declaration of incompatibility or the quashing or declaring invalid of subordinate legislation commenced'.

No. 69, in clause 11, page 8, leave out line 17.

Clause 11 stand part.

No. 72, in clause 12, page 9, line 4, leave out '(a) in subsection (1)'.

No. 73, in clause 12, page 9, line 5, leave out from `laid' to end of line 7 and insert `or the order was made, as the case may be'.

No. 74, in clause 12, page 9, line 7, at end insert— '(4A) The Secretary of State shall have regard to any representations, and in particular to any report of a Committee of either House of Parliament, that may be made during the period of consideration relating to a remedial order or draft, and may, if he considers it desirable in the light of any such report or representation, lay a revised draft or make a new order as the case may be. (4B) At the end of the period of consideration the Secretary of State shall lay before Parliament a statement giving details of any representations made relating to the remedial order or draft and his response to those representations.'.

No. 78, in clause 12, page 9, line 7, at end insert `and— (c) a statement that the order is no more extensive than is required to reverse the specific incompatibility identified in the declaration of incompatibility made by the court or in the relevant finding of the European Court of Human Rights.'. Clause 12 stand part.

Government new schedule 3.

Mr. Garnier

Thank you, Mr. Lord; here I am again.

We come to what my hon. Friend the Member for Beaconsfield (Mr. Grieve), has described as the most important debate of the evening. It is certainly of equal importance to the previous debate; indeed, it is vital. I mean no disrespect to anyone when I say that we have a rag-bag of amendments before us, but important points need to be discussed. I fear that the Home Secretary may be detained a little longer. None the less, I am grateful to him for doing us the courtesy of joining us at this stage of the Committee.

Amendment No. 64 states: `(2) The Secretary of State shall, within 15 sitting days, lay before each House of Parliament a statement setting out the grounds of the incompatibility and each House of Parliament shall—

1. (a) in the case of a declaration of incompatibility under section 4, by resolution signify its agreement or disagreement with the declaration;
2. (b) in any other case, debate the statement.

(3) If either House of Parliament by resolution under subsection (2)(a) signifies its disagreement with a declaration of incompatibility, the case in relation to which the declaration was made shall stand in abeyance, save for any appeal to the European Court of Human Rights. (3A) If both Houses of Parliament by resolution under subsection (2)(a) signify their agreement with a declaration of incompatibility, or when both Houses have debated a statement under subsection (2)(b), as the case may be, the Secretary of State shall lay before Parliament a report containing proposals for amending legislation to remedy the incompatibility. (3B) In any case where it is necessary to amend primary legislation in order to remedy the incompatibility, amending legislation shall take the form of an Act of Parliament unless the Secretary of State considers that there are exceptional reasons which make it impracticable to proceed by Act of Parliament; and in that case he shall state those reasons in the report, and may by order make such amendments to the primary legislation as he considers appropriate. (3C) An order under subsection (3B) above shall not be made until a draft of it has been laid before, and approved by a resolution of, each House of Parliament.'. The amendment is altogether better than that which is set out in the Government's new schedule 3, but I shall come back to its wording in a moment.

The amendments and the new clause are all concerned with what we can simply call the fast-track procedure. If the UK's domestic courts or the European Court of Human Rights in Strasbourg declares that primary or secondary legislation is incompatible with the convention, the Government may change the law simply by laying an order before Parliament under the affirmative resolution procedure. We oppose that in principle—it is both unnecessary and unjustified. There have been only 11 occasions in the 32 years since the UK gave right of individual petition to bring cases to Strasbourg when it has been necessary to introduce primary legislation to change our law as a result of an adverse ruling.

The Lord Chancellor has stressed that such cases are likely to be rare, and that therefore there is no practical justification for the power. Even more importantly, it is wrong in principle. Our laws on human rights issues should be created and crafted by Parliament, with proper opportunity to debate and amend. Our laws are not to be made by the courts or simply by the Government of the day through statutory instrument. To allow the fast-track procedure is to diminish the role of Parliament and to weaken our democracy. This is not just the appearance of a fig leaf, but no fig leaf at all, and my hon. Friend the Member for Gainsborough was right to draw our attention to that danger.

In amendment No. 144 and new schedule 3, the Government appear to recognise that there is some force in our criticism. Indeed, if the Home Secretary did not expressly say so, he at least implied that during a response to a recent intervention. The Government now propose a revised scheme under which the fast-track procedure will be used only if there are compelling reasons. Our amendment No. 64 proposes that any changes in the law should be by primary legislation, unless the Secretary of State considers that there are exceptional reasons which make it impracticable to proceed by Act of Parliament; and in that case he shall state those reasons in the report".

That is much preferable, because it is an objective criterion, not the purely subjective test proposed by the Home Secretary. After all, it is the Secretary of State, and he alone, who decides what are compelling reasons. It may simply be that he wishes to avoid any debate on what he knows is a contentious matter. If he replies that he would never use his powers in such a way, the proper course must be not to grant such powers in the first place. The common sense of that is inescapable.

New schedule 3 does not give us confidence that the very wide powers will not be abused. Paragraph 1(1)(a) shows how wide a remedial order can go. I shall return to that matter in more detail later. Such an order cannot merely remedy the incompatibility declared by the court and make incidental or consequential changes, which would be reasonable, but can make any supplemental provisions that the person making the order considers appropriate.

Paragraph 1(2) includes the power to amend, revoke or repeal primary or secondary legislation other than that which contains the incompatible provision". In other words, smuggled into the new schedule—which will be presented as a generous, emollient gesture—is a Henry VIII clause of the widest proportions. I shall come back to that point in a moment.

Save in genuinely exceptional circumstances, for which the Opposition have responsibly provided, this fast-track procedure is wrong and should be expunged from the Bill. Such objections are not new to discussions about the Bill. At the outset, on Second Reading in the upper House, my noble Friend Lord Kingsland pointed out that the Bill—especially the provisions on the fast track—was a defining moment in our constitution.

9.30 pm

In Committee on 3 June, when we were discussing earlier clauses, I referred to a number of collision points highlighted by the Bill. I was concerned about the collision between the courts and Parliament represented by clause 4, under which certain courts can make declarations of incompatibility. We are facing another collision in clause 10, but this time it is between the Executive and Parliament.

My noble Friend Lord Kingsland put the point far more exactly and elegantly on Second Reading in the other place on 3 November 1997. He said that the Bill was a defining moment in the life of our constitution and as important in the history of our constitution, as the Parliament Acts of 1911 and 1949. He said that these matters lie at the heart of the doctrine of the separation of powers in our constitution, which has been the hallmark of our liberties throughout the centuries."—[0fficial Report, House of Lords, 3 November 1997; Vol. 582, c. 1235.]

I was perhaps not shocked, but none the less perturbed, when the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) said that the doctrine of parliamentary sovereignty was 100 years out of date. That merely shows that the Liberal Democrats are even more out of touch with the popular will that I thought, but I digress. There is much that the right hon. Gentleman—

Mr. Straw

He is not a Privy Councillor.

Mr. Garnier

Yes, he is. I think that the Labour Government made him one some time ago.

The right hon. Member for Caithness, Sutherland and Easter Ross should not be the butt of too much criticism, because he was helpful to the official Opposition at the outset of our deliberations when we discussed access to the courts.

Mr. Andrew Stunell (Hazel Grove)

I am sure that my right hon. Friend the Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) is sorry that he cannot be present. Does the hon. and learned Gentleman agree that the Liberal Democrats have argued from first principles about what we should be seeking to achieve in the Bill? The hon. and learned Gentleman and his party have come late to the principles of the Bill. Perhaps that explains why he has fundamentally misunderstood the point that my right hon. Friend put to the House.

The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)

Order. We must keep to the amendment. The hon. and learned Gentleman has strayed from the amendment, as did the hon. Gentleman in his intervention. The debate is subject to a programme motion, so it is important that we keep to the amendments before us and not go any wider.

Mr. Garnier

I am glad that you intervened, Mr. Martin, because you have saved me from saying something that I might later regret.

For his part, the Lord Chancellor did not refer to clauses 10 and 12 in his opening speech on Second Reading in the other place. He said that the Bill is carefully drafted, and designed to respect our traditional understanding of the separation of powers.

It is significant that a Bill that was apparently so carefully drafted is now to be amended, if the Committee agrees, by the same Government who praised its original terms to take account, if only marginally, of our concerns. A comparative study of amendment No. 64 and those that flow from it, and Government amendment No. 144 and new schedule 3 tells a worrying story.

I shall not deal with amendments Nos. 64, 36 and 74 because I want to demonstrate, as quickly as I can, the problems in new schedule 3. I accept that the arithmetic of this Parliament means that new schedule 3 is most likely to find its way into the Bill in due course, so it is on that that I should concentrate.

Paragraph 1(1) of new schedule 3 states: A remedial order may— (a) contain such incidental, supplemental, consequential or transitional provision as the person making it considers appropriate". We all know that the person making it will be a Minister. Contained within the first three lines of new schedule 3 are extraordinarily extended powers to make legislation by secondary legislation.

Sub-paragraph (1) continues: (b) be made so as to have effect from a date earlier than that on which it is made". Therefore, it will be not only widely configured but antecedent. The sub-paragraph continues: (c) make provision for the delegation of specific functions". The Minister is not only amending primary legislation by secondary legislation, not only amending the primary legislation which has been held to be incompatible, but will be able to delegate the making of provisions for other specific functions. Sub-paragraph (1) concludes: (d) make different provision for different cases".

Sub-paragraph (2) states: The power conferred by sub-paragraph (1)(a) includes—

Mr. Leigh

I hope that, before my hon. and learned Friend sits down, he will refer to the even more worrying point that we are concerned not simply about the amending of primary legislation by secondary legislation, but about the fact that these matters will not be amended and will be debated for only 90 minutes, and, because of the Bill's timetabling, matters which could have been debated under clause 20 will not be debated. As the Bill passes into law, Parliament will not debate this critical change in our constitution. We shall not even reach clause 20 tonight.

Mr. Garnier

My hon. Friend is entirely correct, and that is why I am trying to make some progress. We are reaching a part of the Bill which should make our hair stand on end.

Sub-paragraph (2) continues: (a) power to amend or repeal primary legislation (including primary legislation other than that which contains the incompatible provision); and (b) power to amend or revoke subordinate legislation (including subordinate legislation other than that which contains the incompatible provision). The only good thing that I can find here is sub-paragraph (3), which states: No person is to be guilty of an offence solely as a result of the retrospective effect of a remedial order. That is very nice. But already, the first paragraph of new schedule 3 gives a Minister immense powers to deal with existing primary legislation and secondary legislation, and it is extremely doubtful whether it is proper for a Minister to take unto himself such powers.

Paragraph 2 states: No remedial order may be made unless— (a) a draft of the order has been approved by a resolution of each House". No doubt the Government will say that that is a benefit for Parliament, because it will be able to deal with this at the end of 60 days. Secondly, no remedial order may be made unless it is declared in the order that it appears to the person making it that, because of the urgency of the matter, it is necessary to make the order without a draft being so approved. Again, the Minister can take unto himself powers which should be carefully considered.

Paragraph (3) deals with orders laid in draft. Sub-paragraph (2) states: If representations have been made during that period"— the 60—day period the draft laid under paragraph 2(a) must be accompanied by a statement containing—

1. (a) a summary of the representations; and
2. (b) if, as a result of the representations, the proposed order has been changed, details of the changes."

The problem with that provision is that it does not say that the Minister "shall have regard" to the representations or opinion of any Committee—as our own amendment No. 74 would clearly require—but merely says that he shall summarise the representations. It does not say that he should ensure that the representations are placed before Parliament, verbatim. We all know that one of the best ways of dealing with inconvenient matters is to summarise them in a manner that suits one's own argument. Who will draft the summary, and why is the Minister not required to have full regard to the representations?

The same fault can be found in clause 4, which mentions the "summary of the representations", and allows the Minister, if, as a result of the representations, he considers it appropriate to make changes to the original order", to put into his statement details of the changes. The power to edit is one that editors are loth to give up. I dare say that the power to edit and to summarise given to Ministers by the new schedule is one that they will jealously guard, to the disadvantage of the parliamentary process.

I hope that, in those few observations on new schedule 3, I have persuaded the Committee that the new schedule is not what the Government undoubtedly will say it is—a meeting halfway between our concerns and their intention—but constitutes something else entirely. I suggest that the new schedule is not so much a Henry VIII clause—at the behest of Cardinal Wolsey—as a provision that would allow Ministers a huge extension of power to alter, repeal and redraft primary and secondary legislation connected directly not only with a clause 4 declaration of incompatibility but with further primary and secondary measures.

From now on, the expression "Henry VIII clause" will be inadequate to describe the Government's action. I suggest that, henceforth, new schedule 3 should be regarded as the birth of the Henry XVI clause. Constitutionally, new schedule 3 stinks.

Mr. Straw

In an earlier speech, the hon. and learned Member for Harborough (Mr. Garnier) spoke of the risks of hyperbole. Those risks were well evidenced in his most recent remarks. It is very unconvincing for Opposition Members to work themselves into a lather over Henry VIII clauses unless that lather is preceded by an admission of guilt—a mea culpa—for introducing such clauses into legislation—[Interruption.]

The hon. Member for Gainsborough (Mr. Leigh) seems to accept that point. I simply remind the Committee that he was a Minister in the Department of Trade and Industry from 1990 to 1993, during which time the previous Administration introduced the Deregulation and Contracting Out Bill, with far fewer protections and safeguards against arbitrary use of subordinate legislation in overturning primary legislation than was ever contemplated in the first draft of the Human Rights Bill.

I thought that the hon. and learned Member for Harborough was uncharacteristically lacking in generosity in chiding the Government and me for—he said sarcastically—introducing a Bill that is so well drafted that it now has to be amended. In almost the same breath, he chided us for being reluctant to accept amendments tabled by the Opposition. I do subscribe to the view that Ministers are subordinate and subject to the will of the House. We did our best—and so did parliamentary counsel—with the drafting of the Bill, but it would be impertinent for any Minister to suggest that it was absolutely perfect.

It is our duty to listen to debates and, where we think that an argument has been made, to acknowledge it and to table amendments. For the record, I remind the hon. and learned Gentleman that the Government's acceptance of the exquisitely drafted amendment No. 62 is by no means the only occasion on which my Department has accepted Opposition amendments. Sometimes they are not quite in proper order, so we ask parliamentary counsel to put them in order. Two of the amendments that we made to the Crime and Disorder Bill on Monday, as I acknowledged, were only to put in order amendments that had been tabled by the official Opposition.

9.45 pm

I now turn to the issues that have been raised. I shall not go over the crucial concept of declarations of incompatibility that exist to recognise the sovereignty of Parliament. Most right hon. and hon. Members on both sides of the Committee accept that and demur from the view of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan).

Having decided on the concept of declarations of incompatibility, we had to determine what procedures to put in place where such a declaration was made. One option available to Government and Parliament is simply to ignore the declaration of incompatibility, and we have discussed the possibilities that can arise in such a circumstance when no action is taken. However, in most cases when there is a declaration of incompatibility, any Government who are committed to promoting human rights will want to do something about that part of the law that the Judicial Committee in another place has declared outwith the convention.

It is certainly possible for primary legislation to be introduced and passed very quickly in certain circumstances, and the previous Government had an honourable record of introducing the necessary legislation to give proper effect to the judgments of the European Court of Human Rights. Successive Governments have always acknowledged that it is their duty to bring into law—and into effect—judgments of the European Court of Human Rights.

Opposition Members who have served in previous Parliaments have experience of the pressures on the legislative timetable that sometimes mean that it is not always possible to bring legislation into force timeously. The power to make a remedial order exists for cases—we do not think that there will be very many—when there is a very good reason to amend the law following a declaration of incompatibility or a finding by the Strasbourg court, but no suitable legislative vehicle is available.

Let me give an example that shows why the hyperbole by the hon. and learned Member for Harborough was quite out of place. A declaration of incompatibility might arise where the legislation in question had touched on the liberty of the subject. In most cases, the Judicial Committee in another place has said that primary legislation here is outwith the convention because it has taken the view that the rights of the subject spelled out in the convention have been unjustifiably interfered with by the primary legislation of this Parliament. Therefore, a remedial order aims to restore, or to give to the subject for the first time, liberties that the subject had previously been denied by Parliament.

In those cases, I believe that Parliament would wish to act swiftly, but it could well be that there was no criminal justice Bill before the House through which amendments could be made. In those circumstances, the power to make specific and necessary amendments by means of a remedial order could be useful.

We have to finish all our debates by 10 minutes past 10, so I shall not detain the Committee for much longer; but I should like to refer to the case of Mr. Chahal, in which the European Court declared that the arbitrary powers of the Home Secretary to deport an individual on the ground that his presence here was not conducive to the public good was not acceptable, and that there had to be a judicial element in the decision. Primary legislation has now been passed, but, because of the time that it took, individuals were left in limbo with no proper procedure for making decisions on whether people could be deported. Mr. Chahal was released, but in other circumstances such an individual would have to continue to be detained, perhaps for many months or a year, before primary legislation was passed. That is not acceptable, and a remedial order would be right for such a case.

I hope that the hon. and learned Member for Harborough will acknowledge our good faith. I have listened with great care to the arguments. I am sorry that the right hon. and learned Gentleman who used to sit for Grantham and now has an unmemorable and lengthy constituency—[Horn. MEMBERS: "Sleaford and North Hykeham."] Sleaford and South Hykeham. [HON. MEMBERS: "North Hykeham."] It makes no difference to me whether it is North, South, East or West Hykeham. He and others made some important points on Second Reading, which I wanted to take on board. Our amendments and new schedule 3 constrain the circumstances in which remedial orders can be brought forward.

We are deleting the word "appropriate" in clause 10, and saying that a remedial order can be brought forward only if there are compelling reasons. We are setting a very high test. Only the changes necessary to remove the incompatibility will be possible. We have also made provision for representations to be made about non-urgent orders. The appropriate Minister will have to bring before Parliament a clear statement of those representations and whether they have been accepted, with a provision for amending the original remedial order if appropriate.

Under amendment No. 64, if Parliament signified that it did not agree with a declaration of incompatibility made by the domestic courts, the case in relation to which the declaration was made would stand in abeyance, save for any appeal to the European Court of Human Rights. As a declaration of incompatibility has no effect on the proceedings in which it is made, the provision would serve no purpose other than to stay the proceedings.

The amendment does not refer to only that part of the case in respect of which a declaration of incompatibility is made. Several points could be raised on the matter that went before the other place, some of which required relief, and for which relief should and would be forthcoming from a domestic court but for the operation of amendment No. 64. I do not believe that the hon. and learned Member for Harborough had that in mind, but the perverse effect of the amendment would be to stay the whole case, and therefore to stay the relief that would otherwise be available. For that reason, as for many others, I hope that the hon. and learned Member for Harborough will not press his amendment.

We have worked carefully on the amendments. I accept that they do not deal with all the concerns raised about remedial orders, but I suggest that we have listened with great care to those concerns and have sought to meet them as far as possible.

Mr. Grieve

I shall try to be brief. I should have liked to have longer, but I appreciate the time constraints, and I know that some of my hon. Friends wish to speak.

Leaving aside any party issues—the Home Secretary knows well enough my views on the thrust of the legislation—I believe that this is the key issue. It is perhaps also my cop-out clause. Given the views I take on this matter, and although I do not know exactly what will happen on Third Reading, if the legislation is acceptable to me in relation to what we call the Henry VIII clause, I would find myself delicately situated—if the matter were to be remedied to my satisfaction—were I not to support the Government. I say that frankly to the Home Secretary. I can see the Whip giving me a slightly baleful look, but I have been given an immense margin of appreciation in this matter by my own party, for which I am grateful.

As a general principle, it seems quite clear—the Home Secretary seems to accept it—that any declaration of incompatibility, as it is not binding on the House, should be followed by full consideration of any legislation by the House in the ordinary way. There are compelling reasons for that. If I had more time, I would touch on the Lord Chancellor's speech in the other place on 3 November. 1 found his approach to the way in which Parliament would react to such a declaration of incompatibility quite chilling. He seemed to be adopting the mantle of the advocate rather than of the judge. He seemed to imply that Parliament would automatically wish to follow the direction set by the judiciary.

Although I support the Bill because I wish to see the human rights convention incorporated in legislation in this country—that is an important matter–1 also consider it exceptionally important to accept that Parliament may have good and compelling reasons not to want to follow the lead or the advice provided by the judiciary. That is our undoubted right. If our right to scrutinise legislation fully is not allowed for, we risk earning in the contentious matters that arise—I hope rarely—the opprobrium of our electorate, who would not understand why we were adopting a certain course.

The process by which legislation goes through the House is laborious, but one of the happy things that I have discovered during my 12 months here is that, as legislation is discussed in Committee and on Report, many of the initial issues and differences start to be ironed out. Public acceptance of legislation becomes greater precisely because it has been fully discussed. The danger of the rubber-stamp principle is that public acceptance is not obtained, and full discussion does not take place. As we know, even from today's proceedings, there are many occasions when amendments tabled by other parties, or even by the Government, improve the legislation.

The question at the root of all this is: given that I adhere to that principle, can there ever be exceptions? In fairness to my hon. Friends, it is clear from the Opposition amendment that it has been accepted that there may be such exceptions. If that was not the case, the amendment would not have made any reference to them.

There may be occasions when it becomes so clear that steps have to be taken quickly that a remedial order might be the appropriate way to proceed. However, the use of the word "compelling", worries me a little. I would prefer "exceptional" and I should be interested to hear at some point in this debate what the Home Secretary understands by "compelling" and how he would differentiate from it "exceptional", Although there may appear to be only a small difference between them, one may exist. I understand "exceptional" to mean something very pressing, which would command wide public acceptance.

Mr. Straw

I am answering ad lib and without the benefit of a legal dictionary, but the situation that I described in the Chahal case, where the liberty of a subject would be adversely affected by a delay in producing primary legislation, was a compelling case. I am not certain that it would be an exceptional case, because one could ask, "To what is it exceptional?" but it would certainly be a compelling case. Frankly, only in that situation would remedial orders be necessary and appropriate.

10 pm

Mr. Grieve

I am grateful to the Home Secretary for that reply. Even if the matter has to be reopened on some subsequent occasion, I shall now conclude by saying, as he has acknowledged, that there have been occasions—I remember one last autumn—when we have passed legislation through all its stages in the House in two and a half hours. True, the legislation in one of those instances referred to the Lord Chancellor's Department and the noble Lord's desire to have a permanent secretary who was not a lawyer, or whose qualifications were not with reference to some previous statute, but it was done. If it is widely accepted that something should be done, the House can do it, and has done so before. If there is not that widespread agreement, that is the compelling reason why the matter should be debated and discussed in full by the ordinary procedure.

I await the Home Secretary's response. In an ideal world, I would prefer that there should be no exceptional or compelling reasons with respect to an appropriate course or action. Granted that my hon. and learned Friend the Member for Harborough has accepted that such an exception might exist, it needs to be defined; or we will have a fig leaf and not the reality that I want—the House and the judiciary co-operating to bring about the human rights set out in the Bill and discussing them frequently as and when matters arise in which there are incompatibilities or difficulties, so that the public can be aware of how the legislation works and of its limitations.

Mr. Lansley

I shall confine myself to two points. First, when the Home Secretary looked at the report of the House of Lords Delegated Powers and Deregulation Committee, which suggested that there should be something akin to the procedure used in 1994 on the Deregulation and Contracting Out Bill for considering those powers, did he conclude that there should be such a procedure? It is not in new schedule 3, and it should be.

Secondly, the Home Secretary, ad lib, talked about the word "compelling" and not using the word "exceptional". Amendment No. 64 uses "exceptional". Might I direct the right hon. Gentleman's attention to the Competition Bill, in which the words "exceptional and compelling" are used? The Minister of State, Department of Trade and Industry, said of that power: We have no plans to exercise that power, and we believe that its exercise should be subject to the high test of 'exceptional and compelling' reasons. Later, he continued: We are genuinely trying to ensure that a serious test is applied to the Secretary of State's actions."—[Official Report, Standing Committee G, 9 June 1998; c. 296-97.] If an exceptional and compelling test is the appropriate high test in that Bill, why is it not the test that should be used in relation to the exceptional and unusual power in this Bill?

Mr. Straw

In view of the time, I shall be very brief.

I accept the gravamen of what the hon. Member for Beaconsfield (Mr. Grieve) said. It is plainly more desirable for changes in respect of a declaration of incompatibility to be effected by primary legislation—there is no argument across the Chamber about that. There will be circumstances in which a speedier process is necessary—we should not have brought forward this power if we did not think so—but those circumstances will be limited and constrained.

I also accept that Parliament and the judiciary must engage in a serious dialogue about the operation and development of the rights in the Bill. I am sure that the Bill will develop, perhaps, as Machiavelli instructed us—and as the hon. and learned Member for Harborough (Mr. Garnier) reminded us—in ways that we do not fully anticipate. That dialogue is the only way in which we can ensure that the legislation is a living development that assists our citizens.

The hon. Member for South Cambridgeshire (Mr. Lansley) asked me two questions. First, he asked why we are not following the phraseology suggested by my colleagues dealing with the Competition Bill. I confess that I am not familiar with the last dot and comma of that Bill, but I gather that it contains a reference to exceptional and compelling circumstances. The hon. Gentleman gives the answer: he says that Ministers on the Standing Committee dealing with that Bill said that they had no plans to exercise the power. That raises the question why it is there, but I have no doubt that I shall receive an answer to that from my colleagues in Victoria street in the morning.

There can be dubiety about this—of course we anticipate circumstances in which the power in this Bill will be exercised; otherwise, there would not be much point in bringing it forward. I remind hon. Members who were in the House before the general election of the great discussion about the use of the word "exceptional" in the Crime (Sentences) Act 1997—the word has a particular meaning, and I think that "compelling" is better.

The hon. Member for South Cambridgeshire also asked about the Deregulation Committee. We took account of its recommendations, which is one reason—I should have explained this before—why we tabled new schedule 3.

Mr. Garnier

I shall be very brief, in view of the hour. I want first to thank all my hon. Friends who have contributed to the debates this evening. I have found them of great assistance, as I have both the Under-Secretary of State and the Home Secretary, who have, as is their usual custom, been polite, kind and helpful. I am sorry that we were unable to agree on everything, but politics is a rough old business. Machiavelli and Rab Butler were different, but they both understood that politics was the art of the possible, and, right now, I can see that it is does not look possible that we shall win a vote on the amendment. Rashly anticipating the result of a Division, I shall beg to ask leave to withdraw—

Mr. Leigh

Before my hon. and learned Friend does so, will he say whether he agrees that my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) made an important point? The Home Secretary ribbed us about what the Conservatives did in the Department of Trade and Industry over deregulation, but he did not properly answer my hon. Friend's question. The work of the Deregulation Committee is an important safeguard, and I am not sure that the Bill will provide for anything similar.

Mr. Garnier

My hon. Friend is right. I was not wanting to skate past what my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) said; I was worried about the time. There will be other occasions when we shall have a chance to debate that matter—one of the reasons why we are seeking leave to withdraw the amendment is to allow for that very possibility.

In that light, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 144, in page 7, line 33, leave out from 'that' to end of line 36 and insert `there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.'.

No. 145, in page 7, line 42, leave out from 'that' to end of line 43 and insert `there are compelling reasons for proceeding under this section,'.

No. 146, in page 7, line 45, leave out 'appropriate' and insert 'necessary'.

No. 147, in page 8, line 1, leave out from beginning to `where' and insert— `(4) This section also applies'.

No. 131, in page 8, line 4, leave out 'section 12(1)(b)' and insert `paragraph 2(b) of Schedule (Remedial orders)'.

No. 132, in page 8, line 11, at end insert— `( ) Schedule (Remedial orders) makes further provision about remedial orders.'.—[Jane Kennedy.]

Clause 10, as amended, ordered to stand part of the Bill.

Clause 11 disagreed to.

It being six and a half hours after the commencement of proceedings in Committee, THE CHAIRMAN, pursuant to the Orders [1 and 17 June and today], put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

Clause 12 disagreed to.

Clauses 13 to 20 ordered to stand part of the Bill.