STATEMENTS OF COMPATIBILITY (Hansard, 21 October 1998)

§ Mr. Clappison
I beg to move amendment No. 1, in page 11, line 33, after `compatibility)', insert 'which statement must be accompanied by a report setting out any issues which the Minister considers to be relevant to the question of the compatibility of the Bill with the Convention's rights and giving the Minister's reasons for stating that the Bill is compatible'.

Mr. Deputy Speaker
With this, it will be convenient to discuss the following amendments: No. 2, in page 11, line 36, after 'Bill', insert 'which statement must be accompanied by a report setting out

(i) any issues which the Minister considers to be relevant to the question of the compatibility of the Bill with the Convention's rights;

(ii) the reasons why the Minister is unable to make a statement of compatibility; and

(iii) the reasons why the Government nevertheless wishes the House to proceed with the Bill notwithstanding the Minister's inability to make a statement of compatibility.'.

No. 3, in page 11, leave out lines 37 and 38 and insert— '(2) A statement and report made under subsection (1)(a) must be in writing and be published in such manner as the Minister making it considers appropriate. (3) A statement under subsection (1)(b) must be an oral statement given to both Houses of Parliament, and a report under subsection (1)(b) must be in writing and be published in such manner as the Minister making it considers appropriate.'.

§ Mr. Clappison
We now come to the question of statements of compatibility. As matters stand, a Minister must, before Second Reading of any Bill, make a statement to the effect that the provisions of the Bill are compatible with the European convention, or state that, although the Minister is unable to make that statement, the Government wish the House to proceed with the Bill. We will be interested to hear from the Government examples of when they think the latter might apply.
We believe that the proposal puts more emphasis on presentation than substance—something with which we are not unfamiliar under this Government. If Ministers are to pronounce in this way and make statements of compatibility, it would surely be more meaningful for them to give their reasons. We wonder just how many Ministers will state that they are unable to make a statement of compatibility before Second Reading. How many will come to the House and say, "This is a bit dodgy, but we want you to go ahead anyway"?
We suspect that Ministers will use the measure as a rubber stamp to present their Bills as complying with the European convention, irrespective of the reasons for doing so and without an informed debate on the subject. We think that it would say rather more if Ministers were prepared to give their reasons. We are not heartened by the attitude taken by the Government so far when they have had considered opinions given to them about some of their legislation.
The Minister will be aware that certain provisions in the Crime and Disorder Bill were subject to critical questioning by a group of distinguished academics as to whether those provisions would comply with the European convention on human rights. Since then, there has been a steady stream of legal and academic 1350 opinion about some of the measures that the Government have proposed and whether they comply with the Government's own incorporation of the European convention.
A few days ago, the chairman of the Bar, Heather Hallett QC, said that reforms in the pipeline from the Government could be challenged under the new Human Rights Bill, soon to reach the statute book. She said: It would be a dreadful irony if the very first challenge in the courts was to legislation passed in the same session by the same Parliament … If the reports of some of the proposals emanating from the Home Office are accurate, that is exactly what will happen. The Government will legislate with one hand, but will be challenged under that very legislation on the other. That is not a desirable state of affairs, and a rubber-stamp statement of compatibility—as appears in the Bill—is not much of a guarantee against it. We cannot see why Ministers should not be prepared to give their reasons so as to make this measure more than a rubber stamp, and we look forward with interest to the Minister's explanation of why the Government are not prepared to be open and give their reasons.

§ Mr. Mike O'Brien
The three amendments relate to statements of compatibility, or incompatibility, made under clause 19. The clause is a demonstration of the Government's commitment to human rights. It is one which we need not have included in the Bill, but we have chosen to include it because of the importance we attach to these rights. The added responsibilities placed on a Minister are justified on that basis.
By requiring a Minister in charge of a Bill to give a statement on its compatibility, we are underlining our commitment to pre-legislative scrutiny of all new policy measures. Also, where the Minister states that he is unable to make a positive statement about the Bill's compatibility, that will be an early signal to Parliament that the possible human rights implications of the Bill will need to be given careful consideration by the House—especially, no doubt, in Committee.
The amendments add to the requirements placed on Ministers by clause 19. Amendments Nos. 1 and 2 would require a statement on the compatibility or otherwise of a Bill to be accompanied by a report setting out issues relevant to the Bill's compatibility with the convention rights and, where the Government wanted Parliament to proceed with a Bill for which a Minister could not make a statement of compatibility, reasons why they nevertheless wished the House to consider it.
Amendment No. 3 would provide that an oral rather than a written statement, as the Bill currently provides for, be made in respect of a Bill for which a statement of compatibility could not be given.
I can understand why the amendments have been tabled, but in many ways it is a matter of judgment as to how the House will proceed. Our view is that the amendments are unnecessary, because the House provides for the examination of such issues in its procedures in any event. The amendments would almost create an artificial mechanism to do what the House already does. A statement as provided for by the Bill as it stands will be sufficient to achieve the important aims that both we and, in many ways, Opposition Members want clause 19 to deliver. That would flag up the issue to the House, which 1351 in the normal course of events would be able to look into the reasoning behind the statement of compatibility. Inevitably, that will be an issue during the passage of a Bill.
A debate would provide the best forum in which the Government's thinking could be fully explained. I cannot imagine how the mere giving of such a statement could enhance the debate that would normally take place on Second Reading or in Committee, which would usually elicit the required answers.
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In such circumstances, a written report would not provide much added value. In some cases, a requirement to provide such a full report might also be odd—for example when the terms of a Bill meant that there was no connection with the convention and no convention rights were affected. Then it would merely be a pointless exercise.
Similarly, the requirement for a Minister to make an oral statement when he or she cannot make a statement of compatibility, as imposed by amendment No. 3, is not necessary or appropriate. Acts of Parliament do not usually regulate what a Minister will or will not say in the Chamber. A written statement would be readily available to whoever wanted to read it. As I said, anything in that statement and any other aspect of the human rights implications of a Bill could be debated under the normal proceedings of the House.
What might be of assistance would be any report made on the Bill, for example, by a human rights Committee of the House, if it decided to set one up. In due course, that might certainly be a way of informing the debate, whether in Committee or elsewhere, and looking into the detail of why such a statement was made by the Government. Obviously, such a Committee of the House could discuss the detail.
The hon. Member for Hertsmere (Mr. Clappison) has tabled the amendments for legitimate and proper reasons, in the sense that he wants to be sure that the House has the opportunity to discuss the issues fully, but his concerns are covered by the procedures of the House.
The hon. Gentleman asked for some examples of when the Government might want to proceed with a Bill that was not compatible with the convention. One example would be if we were legislating on the length of time for which the Secretary of State might authorise the detention of terrorist suspects under the Prevention of Terrorism (Temporary Provisions) Acts. The Strasbourg Court found our court in breach of article 5 of the convention some years ago, but we have maintained the arrangements because of the situation in Northern Ireland through a derogation as set out in schedule 3 of the Bill.
We already know that we may want to proceed with certain Bills even though there is some incompatibility. It is difficult to predict all the situations that might arise, as they are exceptional, like the example I gave.
The hon. Gentleman will realise, I think, that it is right that the Government should flag up an issue to the House, which can go into the detail and the reasoning behind the statement of incompatibility through its normal procedures. He will see from my example that we may properly want to proceed with a Bill that is incompatible 1352 with the convention, although that will be rare and exceptional. I hope that, in view of my comments, the Opposition will withdraw their amendment.

§ Mr. Clappison
Although I listened carefully to the Minister's arguments, I remain afraid that this will be little more than a rubber stamp and a presentational device. The hon. Gentleman and the Government would do well to be aware of the stream of legal and other academic opinion about the consequences for possible future legal action of some of the legislation that they have put before the House. The Opposition certainly do not want such a situation to arise, but we fear that it might.
I am not convinced by what the Minister has said. This is more a matter of presentation than of substance. However, in view of the lateness of the hour, I will not press the matter to a vote. I beg to ask leave to withdraw the amendment.