STATEMENT OF COMPATIBILITY WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS

HC Deb 24 January 2000 vol 343 cc81-118

'().—(1) Section 3 of the Act shall not have force until the Secretary of State has made a statement to the effect that in his view the provisions of the Act are compatible with the Convention rights.'.—[Mr. Mackinlay.] Brought up, and read the First time.

Mr. Andrew Mackinlay (Thurrock)

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it will be convenient to discuss amendment No. 22, in clause 2, page 2, line 24, at end insert— '"the Convention rights" has the same meaning as in the Human Rights Act 1998.'.

Mr. Mackinlay

I am pleased to be the opening bat in the debate. I am pleased that my new clause has been selected for debate, in view of the ingenuity and diligence of my hon. Friend the Member for Hayes and Harlington (Mr. McDonnell) and his twin, my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen), whose many amendments appear on the amendment paper. I am grateful to whoever makes the selections. Nevertheless, I take the opportunity to pay tribute to the diligence of my hon. Friend the Member for Hayes and Harlington for his assiduous, unrelenting opposition to a rather grubby Bill.

New clause 1, with consequential amendment No. 22, would in essence meet one of the points that were raised on a point of order by my hon. Friend the Member for Hayes and Harlington—that the Bill is, in our view, deficient because it does not carry a certificate. It does not have an endorsement that it complies with our obligations under the European convention on human rights. I believe that we have stumbled across a flaw in our law-making process in this place. Private Bills do not have such an endorsement automatically, and it has not been volunteered by the Bill's promoters at the outset.

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I remind the House that, when we passed the Human Rights Act 1998, it was made explicit under section 19(1)(a) that Government and public Bills had to have an endorsement on the green paper of the Bill itself that the Secretary of State in charge of it confirmed that, in his or her view, it met the provisions of the European convention. For some reason that I have been unable to ascertain, that provision was not made to cover private legislation. Whatever hon. Members' views of the merits of this Bill, it is surely perverse that our legislative process has a rule that requires one, but not another, category of Bill to receive certification that it is compatible with the European convention.

That is perverse and foolhardy. If this or another private Bill reaches the statute book and is challenged in the courts of the United Kingdom or even in Strasbourg, the Attorney-General, not the Bill's promoters, will be required to defend its provisions. He would have to defend something to which he was not originally a party and to defend it at enormous public expense. That would be at the expense not of the taxpayers of the City of London, but of the public purse as a whole.

The House should accept new clause 1 on the basis of prudence and good housekeeping. Until such time as the House revisits the Human Rights Act 1998 and it becomes a requirement for a private Bill to have the same endorsement as public Bills, it would be prudent for the House or another place to adopt the wording in the new clause for every private Bill that comes before them.

Mr. McDonnell

My hon. Friend said that his new clause addresses our earlier concerns, but I do not think that it does. However, I shall come to that point if I catch your eye later, Mr. Deputy Speaker.

My hon. Friend suggested that the Bill's promoters would not be liable under the Human Rights Act if anyone sought a future remedy. He said that the Attorney-General would be the defendant. In my view, we are all responsible for the Bill; the localised immunity that we think we have as Members of Parliament does not exist. That has been adequately demonstrated in other cases recently and I shall elaborate—

Mr. Deputy Speaker (Sir Alan Haselhurst)

Order. This an extremely long intervention. The hon. Gentleman may have an opportunity to participate later in the debate if he catches my eye.

Mr. Mackinlay

I follow my hon. Friend's drift, but I look forward to his amplifying his point a little later.

I want to emphasise the point that the obligation to defend the United Kingdom statute book in the courts would lie with the Attorney-General. So far as I am aware, he has not even been asked about this matter. When a Secretary of State presents a public Bill, he does not say glibly that the Bill of which he is the architect complies with the European convention. A memorandum is exchanged between him and the Law Officers, and the Law Officers, not as politicians but as lawyers, express a view. In a sense, the Secretary of State who is piloting the Bill acts as conduit of that information and he reports back to the House. He says that he has consulted the Law Officers, who confirm that a Bill meets the requirements of the convention.

This is not a Government Bill. However, I hope that the Minister will—this evening or subsequently—write to the Attorney-General asking him formally whether the Bill meets the requirements of the convention. He should do that because, if for no other reason, he has an obligation to the public purse. I also presume that he does not want the United Kingdom to be embarrassed in the courts when our legislation is scrutinised. I therefore hope that, when the Minister winds up, he will take account of that point and will, whatever happens, undertake to ask the Attorney-General explicitly for his view on the matter.

May I through you, Mr. Deputy Speaker, address the right hon. Member for Cities of London and Westminster (Mr. Brooke)? Quite naturally and rightly, he is the principal steward of the Bill for one of the local authorities in his constituency. The right hon. Gentleman could and should stand up tonight on behalf of the promoters and say, "I accept this new clause." If he does not or is unable to, that suggests that the promoters think the Bill is flawed and deficient in this regard. Why otherwise would they not accept this prudent new clause? When the right hon. Gentleman addresses the House, I hope that he will suggest that he will accept the new clause or commend it to the Bill's promoters so that the Bill could be tidied up.

I have already said the Human Rights Act explicitly requires that a Government Bill be consistent with the European convention. However, the Act is silent about private legislation, and that reflects a failure by the House. We do not make good law because scrutiny is inadequate. However, the Act does not say that such an undertaking cannot be given for private Bills. In a written answer, the Home Secretary pointed out the obligation for a public Bill to have such certification, and also referred to private Bills. He said: Where the Bill is directly assisted by the Government"— I stress those words— …the Minister responsible for the policy should, as a matter of practice, express the Government's views on compatibility with convention rights during the Second Reading debate." — [Official Report, 5 May 1999; Vol. 330, c. 377W.] While we have given this Bill a Second Reading, I read into that reply that the Home Secretary was getting the message that the Government could not ignore the fact that the courts in this country or the European Court in Strasbourg may consider it a flaw if the Government do not counsel Parliament on the obligations under the convention.

Mr. Tony Benn (Chesterfield)

The term "private Bill" refers to the procedure for passing it. However, when it is passed, it becomes an Act of Parliament. Indeed, in that respect there is no distinction between a private Member's Bill and a Government Bill. Once enacted, it changes the law of Britain either in the City of London or elsewhere. The Minister should give the assurance that Bills that are likely to become Acts will be clear with regard to the convention, and automatically so. Does my hon. Friend agree that the Minister cannot use the excuse that the matter has nothing to do with him because it is a private Bill? He is assisting it and it will end up as an Act of Parliament passed by the House.

Mr. Mackinlay

Absolutely. That is why I return to the point that, if the proposed Act were ever the subject of scrutiny in the courts, the Attorney-General would have to defend the veracity of an Act of Parliament in United Kingdom statute. We surely have a vested interest in avoiding such embarrassment.

The Government cannot say in this debate or subsequently—I am sure that the point will be picked up in another place if the Government continue to ignore it—that they do not have a moral obligation, or one of prudence, to ask the Attorney-General to consider the matter and to report formally to the House on it. The Home Secretary was obviously getting wind of that in his written answer, which created a new category of Bill—one directly assisted by the Government.

When I first became interested in this Bill—on Second Reading, I think—I was amazed that the Government were not only acquiescing in its provisions but directly assisting it. It seems that the Home Secretary's criteria are being met. I see my hon. Friend the Minister looking at me as if butter would not melt in his mouth, yet Government Whips pressurised us not to resist the Bill. Indeed, I remember that they carefully arranged debate on part of it between two pieces of public business. On that occasion, I was told by a Whip that I was a wretched person for keeping other hon. Members in the House late by debating the Bill at some length.

You might like tomorrow, Mr. Deputy Speaker, to scrutinise the Official Report. You would find that no payroll Member had exercised their discretion to join myself, my hon. Friend the Member for Hayes and Harlington and others in the Ayes Lobby. That is because the payroll vote is whipped and hon. Members on it are directly assisting the passage of the Bill. I do not want to labour the point; suffice it to say that such behaviour meets the Home Secretary's criteria.

Mr. Martin Bell (Tatton)

Does the hon. Gentleman agree that it is strange that the Government are not only acquiescing in but encouraging a piece of legislation that is profoundly undemocratic, anti-democratic and belongs not to the 21st century but to the 18th?

Mr. Mackinlay

Indeed; I was truly amazed by that. There might not be many common denominators among members of the parliamentary Labour party, but I thought that one was a belief in universal adult suffrage. Even if we cannot always persuade our party managers of that for the purposes of our own discussions, I thought that constitutionally we believed in one person, one vote.

That brings me to an important point, which I was going to save for later. I was trying to concentrate on the legal and professional issues, but the intervention of my hon. Friend the Member for Tatton (Mr. Bell) has reminded me of it. If the Bill is passed without certification of compliance with the human rights convention—I, like many others, do not think that it will receive such certification because it does not so comply—what signals will be sent around the world from what we pride as the mother of Parliaments?

I remember debates in the 1960s and 1970s when the Prime Minister of South Africa used to pray in aid comparisons with the Northern Ireland special powers legislation to legitimise some of his statutes. People who argue that this Bill, as it stands, complies with article 3 of the European convention could therefore also have argued that the constitution of Ian Smith's Rhodesia met such criteria—save for the fact that the country was not in Europe. The criteria would have matched.

I raise that because people around the world look for excuses for legitimising undemocratic legislation. Despots and people with very shady legislative practices will of course say that their legislation mirrors that passed in 2000 in the mother of Parliaments. I wanted to advance that argument in explaining why the Bill does not comply with European convention obligations.

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Mr. John Cryer (Hornchurch)

The relevant article of the European convention is article 3 of the 1952 protocol, which specifies: The High Contracting Parties undertake to hold free elections … under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature". If this Bill becomes law, it seems that it will contravene article 3. Will my hon. Friend comment on that?

Mr. Mackinlay

The Bill does contravene the convention. If my hon. Friend had read those words to Ian Smith, he would have said that his electoral law complied with it. Although he might have asserted that, those in this place and elsewhere would almost unanimously have known differently.

We must look into the words of the article to find out what it means. It clearly and inexorably leads one to conclude—I am sure that there is plenty of case law on the matter—that for compliance there must be universal adult suffrage, unimpeded or unadulterated by any special electoral rolls, such as those which are features both of this Bill and of legislation in the unilateral declaration of independence legislature in Southern Rhodesia in the 1960s. It is clearly perverse to think that the Bill would ever meet our obligations under the convention.

I am trying to persuade the House and the promoters, that from a law-making point of view, there is an overwhelming case for accepting new clause 1. If they believe that I am wrong, we shall soon discover who is right, because the Secretary of State will be obliged to have a word with the Attorney-General. I am sure that the promoters would not wish to pass legislation that is inconsistent with the European convention. All I argue is that there should be this test. What is wrong with that? What have the promoters to hide?

Very able staff in the Library drew my attention to a legal opinion which, with the permission of the House, I shall summarise. It expresses the view that the fact that we decline to consider whether a piece of legislation complies with the European convention could make it ultra vires. The opinion states: the requirement for a written statement under s 19"— of the Human Rights Act— might have important effects on rules governing judicial recognition of Acts of Parliament. The making and publication of the statement might be regarded as conditions precedent to the legal power of either House of Parliament to proceed to consider, a fortiori, to approve, the Bill. If so, it will give rise to an innovation in United Kingdom constitutional law, in that it will open up the possibility that judges might hold legislation purportedly passed without a s 19 statement having been made to be invalidated by procedural ultra vires in the form of a failure to comply with a condition precedent to the exercise of the power to legislate … it would perhaps be possible for a court to treat s 19 as introducing a new requirement to the rule of recognition applicable to statutes, breach of which would invalidate a measure purporting to be a statute. To a layman like me, that means that the fact that the provisions of section 19 have not been fulfilled in respect of the Bill or any other private Bill might make such Bills ultra vires.

Mr. Cohen

I trust that I am not making a frivolous intervention on a good argument, but the opinion my hon. Friend has just quoted contains a word that I do not understand—fortiori. It sounds Italian—

Mr. Andrew Dismore (Hendon)

It is Latin.

Mr. Cohen

As a layman, I do not know whether that word is relevant to the argument. Will my hon. Friend explain the meaning of the word and its relevance, if any, to his argument?

Mr. Mackinlay

I am not sure whether I am grateful to my hon. Friend for that intervention. However, I have had the opportunity to read the legal opinion in its entirety. It is manifest that the United Kingdom Parliament is in danger of the acute embarrassment of having a statute scrutinised in the courts—either the UK courts or the Strasbourg court testing it against the European convention on human rights—and its being held to be ultra vires and hence invalid. If that happened, it would be a bad day for Parliament.

Although the A-level textbooks on the British constitution state that it is not possible for the courts to look at the Official Report during a court case, my understanding is that the matter is not that simple. It would be drawn to the court's attention that, this evening, I—and, no doubt, others—drew to the attention of Her Majesty's Government their obligations under the Human Rights Act. If the Minister is not prepared to concede tonight that there is at least a point that requires further examination, the court will note the flagrant disregard and arrogance displayed by the Government when they were cautioned about their duties and obligations.

The Minister points to the right hon. Member for Cities of London and Westminster, who is the sponsor of the Bill. I could give the Minister a bowl of water, so that, like Pontius Pilate, he could pretend that the Bill was nothing to do with him. However, it is directly to do with him. The right hon. Gentleman could use his good offices to counsel the Bill's supporters to accept new clause 1. However, the Minister's body language appears to indicate that he has failed to grasp that he, as a member of the Government, has an obligation to get the legislation right. The judges will look at our debate tonight and, when they see the Government's arrogant disregard for the advice they were given, they are far more likely to find in favour of the person who has made the complaint against a perverse and grubby piece of legislation.

Mr. Dismore

My hon. Friend focuses on the Human Rights Act 1998, but our obligations extend beyond that Act to the European convention on human rights itself. Does my hon. Friend agree that, if it is found that the Bill breaches that convention—there are strong arguments to be made that it does—the UK could, irrespective of section 17 of the 1998 Act, find itself before the European Court of Human Rights in Strasbourg, which could find the Bill to be in breach of the convention? Irrespective of the 1998 Act, the Bill may be in breach of the convention.

Mr. Mackinlay

My hon. Friend is absolutely correct. I sometimes despair: I should have expected an intervention by now, either from the Minister or from the right hon. Member for Cities of London and Westminster. We are told that he and the Bill's supporters want the legislation to be passed. Its progress has taken and will continue to take a long time, unless the right hon. Gentleman rises and tells us that he will commend the new clause to the Bill's supporters, whom he could consult during the debate.

If the right hon. Gentleman does not do as I suggest, I hope that it will be noted by those outside the House that both the Bill's promoter and the Government were counselled on the matter. When the Bill reaches another place, I hope that their Lordships—whatever their views on and affection for the quaint and arcane arrangements for the City of London—will understand that an important legal principle is at stake and must be taken into account. I hope that, either here or in another place, new clause 1 will be incorporated in the Bill, before it is enacted.

Mr. David Heath (Somerton and Frome)

The hon. Member for Thurrock (Mr. Mackinlay) has done the House a signal service by tabling the new clause, not only because of its relevance to the Bill, but because of its relevant to the procedures of the House in a wider sense. I should say that my purpose is not to delay the Bill's progress—I believe not in using procedural methods to delay Bills with which I do not agree, but in defeating them in the appropriate manner, that is, in the Lobby. I hasten to add that the City of London is of limited relevance to my Somerset constituency, even though, when I am in London, I live only 50 yards from its boundary.

In broad terms, my reason for participating in the debate is that there is at stake an important principle, both in terms of the way in which we in this country conduct our democracy and in terms of the way in which we in the House adopt procedures to comply with the commitments that we have given, either through treaty, as in our original adoption of the European convention on human rights, or through legislation, as in the Human Rights Act 1998. Certain of the Bill's contents give rise to, at least, concern about its compatibility with the Human Rights Act.

The hon. Gentleman and I have, for two and a half years, served together on the Select Committee on Foreign Affairs. He will recall the careful work that that Committee carried out in respect of electoral proceedings in Hong Kong, as part of an overall study of human rights. We were highly critical of the proposals adopted by the Chinese Government, with the support of the Hong Kong authorities, because they appeared to be at variance with our understanding of human rights and proper electoral processes.

The Bill creates an arrangement which, if not precisely identical, bears more than a passing resemblance to the Hong Kong arrangements. Therefore, it is right that the House should satisfy itself as to whether there is a breach of human rights legislation. If it were to be found that the Bill is in breach of that legislation, that begs the question whether the current arrangements for the City of London are even more in breach. However, that is a separate matter that is not encompassed by today's debate.

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The issue is important for the House because the hon. Member for Thurrock has put his finger on a deficiency within our present arrangements. The right hon. Member for Chesterfield (Mr. Benn) is right when he says that there is no differential, when we pass a Bill to become an Act, when it comes to the route by which it reached the statute book. That is merely a matter of procedure within the House. At the end of the day, the measure is an Act of Parliament.

If I part company with the hon. Member for Thurrock, it is when he says that there is a responsibility on the Government to ensure that legislation that is presented to the House is in accordance with the provisions of the Human Rights Act 1998. There is a responsibility on us all, as legislators, to satisfy ourselves that the legislation that we are prepared to put forward is in line with the 1998 Act. Have we yet satisfied ourselves that we have fulfilled that implied duty on us? My answer is, "No, we are not." We would be satisfied, perhaps, by an assertion from the Treasury Bench, but only if that were backed up by appropriate legal advice, which means the intervention of the Attorney-General. We have had no such assurances. Therefore, that which is proposed in the new clause seems adequate to fill the lacuna in our present procedures and would prevent the implementation of the Bill until we have received satisfaction.

Those on the Treasury Bench should consider the problem carefully. I do not think that at present there is an appropriate procedure. I cannot accept that there is a distinction between Government-sponsored legislation and that which comes from Back-Bench Members, and there must be some defence against us acting effectively unconstitutionally, and certainly in breach of our commitments. I do not think that the hon. Member for Thurrock is right when he suggests that we can act ultra vires in these circumstances. That is not a term that would apply to the House. However, there is scope at some later stage for a court to certify that the legislation that has been passed in these circumstances is not in accordance with either our own domestic legislation—for example, the Human Rights Act—or our treaty obligations. That would require the Government to introduce further legislation. It was a deficiency in the Human Rights Act that we did not incorporate the ability to strike down law that was held to be in breach of the human rights convention, but that is a different matter.

I shall listen carefully to the Minister's reply to this short debate. If there is a Division on the new clause, I intend at present to support the hon. Member for Thurrock. I say that as an individual Member and not as a party spokesman. I think that my hon. Friend the Member for Kingston and Surbiton (Mr. Davey), who speaks for the Liberal Democrats on these matters, has some sympathy with the view of the hon. Gentleman. He is nodding, so I take it that he is assenting.

Those who support the Bill should explain how we shall otherwise discover whether the legislation that we are being asked to consider, support and enact is in accord with existing legislation and with the treaty obligations into which we freely entered. I do not believe that the mechanism currently exists. Irrespective of whether the clause is passed this evening, the debate has raised an issue that needs to be considered on another occasion to ensure that all the legislation that we consider is in accordance with our clear intentions as demonstrated by the Human Rights Act.

Mr. Tony Benn (Chesterfield)

I have listened to the debate with great interest, and especially to the hon. Member for Somerton and Frome (Mr. Heath). We are discussing not only how the City of London should arrange its elections, but much wider matters. The right hon. Member for Cities of London and Westminster (Mr. Brooke) should tell the House whether the promoters considered its implications under the European convention on human rights. The Government, however, are providing massive assistance—they are distancing themselves from the Bill politically while supporting it. The promoters, however, have a responsibility for ensuring that their legislation, which will be part of the legislation of the United Kingdom, accords with the European convention. The Government must deal with the issue if it arises later.

I put the second question personally to the right hon. Gentleman, who is an experienced Member. Having previously been Home Secretary and the Secretary of State for Northern Ireland, with responsibility for human rights, does he believe that a resident in the City of London, who could be outvoted by people or companies who have bought their votes, would be able to take a case to the European Court of Justice? Those of us who vote in general elections go to polling stations, where there are masses of huge notices warning us about bribery and corrupt practice, for example. Yet the Bill legalises the very corrupt practices that would, we are warned, get us unseated by an election court. I have twice been before an election court, and it is a terrifying body.

Could it really be the case that a resident in the City of London, who discovered that his claim to vote in a ward election was overwhelmed by people or companies who had bought their votes and nominated the elected, would not have a reasonable chance of going to the European court and saying, "This is corrupt"? If the Bill is enacted, the election court would have to interpret the measure that is before us. It would say, "I am sorry, it may be corrupt generally but it is not corrupt in London because Parliament has passed legislation that allows this type of corruption." However, that will not apply if someone goes to the European court. That court would have the right to consider the legislation as well as the practice and relate the two to the convention.

I have used strong language, and I believe that we are considering a corrupt proposal. I do not mean that individuals will benefit, but I believe that we are being asked to legalise the buying of votes for political purposes. As Members of Parliament, we have a responsibility, quite apart from my right hon. and learned Friend the Attorney-General and my right hon. Friend the Home Secretary, to consider whether we want to see the great City of London having its local government bought by companies under legislation that we enact. The House is almost empty, but I know that if there is a Division the Lobbies will fill with Members who have been told by the Whips that they have a duty to support the Bill. That is what happened last time.

Mr. Robert Syms (Poole)

In 1969, Lord Callaghan reformed the business vote in much of Britain except for that in the City of London. The right hon. Gentleman was a member of that Labour Cabinet. If he felt so strongly about the matter, why did he not resign?

Mr. Benn

The thought that someone should resign if he is a minority in the Cabinet is an interesting one. If that were the position, the Cabinet would lose half its membership every week. I have never accepted that approach. I do not recall the then Cabinet ever discussing the matter because not every little piece of legislation comes before Cabinet. I say without any discourtesy that not everything that Lord Callaghan did is automatically inscribed in the article of faith. The present Government would describe Lord Callaghan as old Labour to his fingertips. As a loyal supporter of the Government, do not ask me to endorse such old Labour corruption, as identified in the hon. Gentleman's intervention.

Of course, there has been the buying of votes in the past. Indeed, the practice was legal. If we go back far enough, we find that ordinary people did not have the vote. In 1832, only 2 per cent. of the population had the vote: they were all rich white men. It may seem that 1832 is a long time ago, but it was only 18 years before my grandfather was born. Democracy is quite new. Women got the vote at the same age as men only in my lifetime. That was 1928. Only a year or two before I was elected to this place, we got rid of the business vote and the university vote. We are now reintroducing the corporation vote. Although this goes beyond the terms of the debate, London should be brought under the new mayor, so when my hon. Friend the Member for Brent, East (Mr. Livingstone) takes responsibility for London he will be able to deal with the problems of the electoral system in the City as well as other matters. However, that is a wider issue that I must not go into.

Democracy should be central to the views of all hon. Members. It should not divide us politically, and it certainly should not incorporate the Government Front Bench along with the City of London, whose acquaintance with democracy is a narrow one. It is an offshore island moored in the Thames, with a freedom that many other offshore islands would be glad to have. I hope that the right hon. Member for Cities of London and Westminster will address himself to my question: did he and the promoters seek advice? Secondly, does he think that under normal election law an elector would have a claim against a winning candidate, who would use the mechanisms that we are being invited to endorse?

Mr. Peter Brooke (Cities of London and Westminster)

I welcome the right hon. Member for Chesterfield (Mr. Benn) back to the deliberations. We enjoyed his contribution on Second Reading. Some of the remarks in the admirable contribution that he has just made had the flavour of a re-run of some of his observations on Second Reading. I shall return later to the question that he asked me.

The hon. Member for Thurrock (Mr. Mackinlay) tabled new clause 1. Shortly after he became a Member of Parliament, he asked me an oral question when I was still a member of the Cabinet. He prefaced his question with the sentiment that although I was a very nice chap, I was a rotten Minister. I think that the hon. Gentleman is a very nice chap and I am sorry that his capacity as a Minister has not yet been tested. The skill with which he remained in order for a speech that lasted approximately half an hour was testimony to his ability as a parliamentarian. I cannot divine the Patronage Secretary's view, but I thought that the hon. Gentleman was extremely skilful. I shall respond to his questions later.

The hon. Member for Somerton and Frome (Mr. Heath) said that the City had little to do with Somerset. A friend went to live near Cambridge recently. After he had lived there for approximately 18 months, he met a military-looking man at a party who said, "I haven't seen you before; where are you from?" My friend replied, "We've been living here for 18 months, but before that we lived in Somerset for several centuries." "Ah, royalists, eh? You'll find we're mainly Cromwellians around here", responded the gentleman from Cambridge. The City of London was firmly on the parliamentary side in the civil war, therefore it is not surprising that the hon. Member for Somerton and Frome did not detect much connection between Somerset and the City.

Mr. David Heath

Some of my ancestors were executed in 1685 for taking up the parliamentary cause later than the rest of the country.

Mr. Brooke

I recall the events of 40 years later, but you would rule me out of order, Mr. Deputy Speaker, if I pursued them.

The right hon. Member for Chesterfield will have been a Member of Parliament for 50 years later this year. Understandably after 50 years, his memory is playing him marginally false. My father was Home Secretary during the right hon. Gentleman's first 25 years in the House; I have not been Home Secretary during his second 25 years in the House. It is remarkable that I am the third longest sitting Member for the City of London in 717 years. It was represented by four Members of Parliament for most of that time. I have never been Home Secretary, therefore I cannot respond to the aspect of the right hon. Gentleman's speech that referred to that.

My hon. Friend the Member for Poole (Mr. Syms) responded to the heart of the speech of the right hon. Member for Chesterfield and the point about a challenge by a resident in the City. The corporation is anxious to preserve the ability of wards under the current arrangements—which were endorsed by the Government of which the right hon. Gentleman was a member in 1969—to elect residents. The Bill provides for that. What the right hon. Gentleman describes as a corrupt practice is simply the current position in terms of legislation that has prevailed between 1969 and now.

New clause 1 would provide that clause 3 should not take effect until the Secretary of State had made a statement that the Bill was compatible with convention rights, which are defined in amendment No. 22 as having the same meaning as in the Human Rights Act 1998. The hon. Member for Hayes and Harlington (Mr. McDonnell) has raised the human rights convention on several previous occasions. Every time that has been done, the Chair has made the technical position clear. In drafting the Bill, the promoters followed that position. Nevertheless, I shall explain it.

8.15 pm

Section 19(1) of the Human Rights Act states: A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill— (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights"— the Act calls that a "statement of compatibility"— or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill. The section goes on to say that the statement should be in writing and published in a manner that the Minister who makes it considers appropriate. We are now familiar with the practice of including the ministerial statement on the front page of Government Bills.

The scope of the section 19 is clear. It applies to public Bills—I readily acknowledge that the hon. Member for Thurrock made that clear—but it does not apply to private Members' Bills, private Bills or secondary legislation. The hon. Gentleman is entitled to take the view that the requirement of section 19 should be extended. The point was recently debated in another place in relation to secondary legislation.

Mr. John Cryer

I have followed the right hon. Gentleman's argument carefully, but does he argue that the convention should not apply to private Bills? As my right hon. Friend the Member for Chesterfield (Mr. Benn) pointed out, when Bills become legislation, there is no difference between a private and a public Bill.

Mr. Brooke

I understand the hon. Gentleman's point, which he makes fairly. However, that is a general policy issue on which I am not expressing an opinion.

In response to the question of the right hon. Member for Chesterfield, I shall state what the City of London Corporation has already done and determined in relation to the Bill and the convention within the current parameters of the law.

Mr. McDonnell

I want briefly to clarify one of the right hon. Gentleman's points. In one of the points of order that I made, I said that the Bill could be defined as having a Minister in charge of it. It would therefore be in the remit of section 19 of the 1998 Act, which states: A Minister of the Crown in charge of a Bill … must". Successive Ministers have so vehemently promoted the Bill that it could be construed that they were in charge of it. They should therefore make a statement.

Mr. Brooke

I am grateful for that intervention. I am not envious of those on the Treasury Bench, but under the conventions of the House, I am in charge of the Bill and, therefore, the hon. Member who has to make appropriate concessions or statements on behalf of the promoters.

The point that the hon. Member for Hornchurch (Mr. Cryer) made is a general policy issue, not a matter for the promoters. I hope that Labour Members agree that it is inappropriate for a private Bill to extend the scope of section 19 of the 1998 Act. New clause 1 would have that effect.

The hon. Member for Thurrock raised a series of contingencies about the Attorney-General. Standing Orders on private business require the deposit of the Bill with the Attorney-General. The Bill was so deposited and the Attorney-General is not ignorant of it. He is entitled to submit a report—such reports are submitted at Committee stage—on any private Bill. The Attorney-General's office has submitted no report on the Bill. Having given the explanation about section 19, I make it clear that the promoters of the Bill and their lawyers have examined the human rights convention more than once. That examination has failed to reveal a contravention.

I appreciate that new clause 1 seeks an opinion from the Secretary of State, and I hope that it will be for the convenience of the House if I put on the record, as for a Government Bill, the opinion of the promoters that no contravention of the convention rights arises from the Bill's provisions. That answers the question of the right hon. Member for Chesterfield.

Mr. Tony Benn

On that point—

Mr. Deputy Speaker

Order. I think that the right hon. Member for Cities of London and Westminster (Mr. Brooke) has completed his remarks, unless he says otherwise.

Mr. Brooke

I was seeking to make those the final remarks in my speech.

Mr. Deputy Speaker

I call Mr. McDonnell.

Mr. John McDonnell (Hayes and Harlington)

I am pleased that my hon. Friend the Member for Thurrock (Mr. Mackinlay) has tabled the new clause and congratulate him on doing so. I have raised compliance with the human rights convention on three occasions, including today. The previous occasion was the carry-over debate in November. Despite the fact that the matter has been taken seriously by the House and by the Speaker and the Chairman of Ways and Means in the discussions, unfortunately, it has been dismissed somewhat lightly by the Government. I need to clarify that the Bill is Government promoted. In every debate, a Minister has taken responsibility for ensuring that it proceeds. Although we are informed that the vote is unwhipped, on many occasions we have been told that the Government want to see the business through and an informal Whip has been applied. I find that disgraceful.

I simply say to the hon. Member for Somerton and Frome (Mr. Heath) that none of our debates on this important issue have been delaying mechanisms. I agree that we should defeat the Bill in the Lobby and believe that, had there been a genuinely free vote, this piece of detritus would have been thrown out long ago. The human rights new clause is critical, though dismissed by the Government. I shall sit down at any stage to allow my hon. Friend the Minister to intervene from the Front Bench so that we can hear the Government's views on whether the Bill complies with the human rights convention.

The hon. Member for Wantage (Mr. Jackson) chaired the Committee that examined the Bill at length, and a number of my colleagues were also involved in that scrutiny. When I raised compliance with the human rights convention in a point of order during our debate on 14 July, he said: Further to that point of order, Mr. Deputy Speaker. It might be relevant to report to the House that, as Chairman of the Select Committee that considered the Bill—we spent several days on it and heard petitioners—I can confirm that that issue was not raised by any of the petitioners and did not come before the Committee at any stage. I regret that that statement was made, because it is wrong. I would seek an adjournment of the House, if necessary, to ask the hon. Gentleman, who is not in his usual place, to comment on those remarks. I should have informed him that I would raise this matter, and I apologise to him and the House for not doing so, but I genuinely thought that the Chairman of the Committee would have been present, as he has been for previous debates.

Mr. Syms

As I understand it, my hon. Friend the Member for Wantage (Mr. Jackson), as Committee Chairman, pointed out on 14 July that that issue was not taken up by either of the petitioners in Committee, although it formed part of the evidence—the original petition—lodged by Mr. Malcolm Matson.

Mr. McDonnell

With the greatest respect, if the hon. Gentleman wants me to read the quote from the hon. Member for Wantage again, I shall do so. He did not say that. He said that I can confirm that that issue was not raised by any of the petitioners and did not come before the Committee at any stage."—[Official Report, 14 July 1999; Vol. 335, c. 464.] I do not like to contradict him when he is not in his place, but he was the Chairman of the Committee. I should be happy to seek an adjournment to enable him to come forward and say why he made that statement. I understand the difficulties of chairing a Committee of that sort, but a central element of Mr. Matson's petition concerned human rights. It drew attention to the fact that the Bill contravened his human rights, which is why I welcome the debate.

The petition by Malcolm John Matson said: Your Petitioner is a resident and Freeman of the City of London and although entitled to a vote in City elections, he is effectively disenfranchised (together with all other residents) because of the continuation of an unfair property qualification whereby control of his local authority and of all the normal functions of local government (e.g health, education, planning etc.) rests with individuals who do not live in the City of London. Your Petitioner and his rights and interests and property are injuriously affected by the Bill, to which your Petitioner objects for reasons amongst others hereinafter appearing. Paragraphs 6, 7 and 8 of the petition draw attention to the breaches of the earlier charter establishing the corporation, which was granted by Edward III in 1341, and paragraph 8 states: The Bill, if enacted, will be incompatible with the Human Rights Act 1998 and in particular, Article 3 of Protocol 1 of the European Convention on Human Rights. That was drawn to the attention of the Committee in the petition, but the Chairman informed the House that at no time was it brought before the Committee and at no time debated.

I am happy to ask your advice, Mr. Deputy Speaker, or that of the House on how we can redress the misleading of the House. The premise of all our debates has been that the human rights contravention was discussed in Committee. Only as a result of the tabling of the new clause tonight and the various points of order that I have raised have we identified the fact that the House was misled, no matter how innocently. I know the hon. Member for Wantage to be a conscientious Member and Committee Chairman, but no matter how innocently the House was misled it is pot enough to say that the Bill's contravention of human rights was not discussed by the Committee. He and other members of the Committee failed to draw that matter from the petition and seek advice.

Perhaps the Committee sought to discuss the matter in secret session, but was advised by Officers of the House that it did not come before the Committee as a relevant matter. That is not what we have been informed. We have been advised tonight by the right hon. Member for Cities of London and Westminster (Mr. Brooke) that at no stage did the Attorney-General intervene to advise the members of the Committee or the House that the Bill contravened the 1998 Act. I believe that, when a matter is before a Committee and a petitioner has drawn attention to a specific issue, it is for the Committee to seek such advice. The Chairman of the Committee, therefore, has a specific responsibility. When a petitioner has placed such an important matter before the Committee, he should seek the advice of Officers of the House and, when dealing with specific legislation such as the Bill, he should seek the advice of the Attorney-General.

Mr. Mackinlay

On whether the Bill was somehow canvassed with the Attorney-General and whether it swept across his desk, every Bill is considered by the Law Officers. Although they considered Bills before we passed the 1998 Act, that legislation specifically says that they have to consider human rights. The fact that the Bill might have crossed the Attorney-General's desk is immaterial—he was not charged, nor asked for his opinion on that specific point.

Mr. McDonnell

That emphasises the point that I want to draw out. My view is that procedure on the Bill has been such that, without points of order being raised and without the new clause being tabled, we would have been remiss in our duty and certainly liable under the European convention on human rights. We may still be so if the Bill proceeds unamended.

The new clause is vital because it protects hon. Members and Officers of the House from prosecution under the European convention on human rights, a matter which I raised in an intervention on a speech by my hon. Friend the Member for Thurrock. Hon. Members may feel that the usual protections of the House are sufficient to protect them under the convention, but I do not agree. Such overarching supra-national and international treaties into which we have entered, with their global rights, duties and legal responsibilities, are rapidly undermining national protections and immunities. The best example of that is the recent case of General Pinochet. An individual country may seek to give immunity to one of its elected members—in the case of General Pinochet, a non-elected senatorial member—but international rights established in law exist and will, therefore, hopefully be enforced.

8.30 pm

I am not trying to suggest, Mr. Deputy Speaker, that if the Bill is passed you will be arrested on your next trip to France or Spain, or wherever you and your family take your next holiday. I am trying to make the point that localised immunities are not sufficient. They are no longer enforceable. Therefore, we must be sure beyond doubt that, at every stage in our deliberations, legislation is compatible with the European convention on human rights. On this occasion we have not even examined that matter, let alone been convinced.

Mr. Gerald Bermingham (St. Helens, South)

I apologise for not being present for the earlier part of the debate, but I was here for the beginning of my hon. Friend's speech, and I have been listening with considerable interest. Does my hon. Friend agree that, under article 33 on inter-state cases, any party or person could take the City of London Corporation to the European Court if it was found to be in breach of article 3 of the protocol, which is the right to free elections? What has been built in here, which does not seem to have been considered, is, literally, a gain in terms of litigation, which will give rise to a number of cases in future. Should not that be avoided at all costs?

Mr. McDonnell

I shall deal with that later. I repeat that it behoves us as individual Members and as a corporate body—a Chamber—to ensure that all legislation complies with the European convention on human rights. That is why we enacted the legislation in November 1998.

We have not had the advice of Officers of the House or members of the Government to enable us to come to a view, on Second Reading, in Committee or on Report, on whether the legislation complies with that convention. The new clause could provide us with some protection, but I doubt that it will. It is a long-stop. It is a post-action protection. Although supportable tonight, it would have been better had the Bill been withdrawn and properly drafted.

I want to dwell for a moment on the general question of private Bill legislation.

Mr. Deputy Speaker

Order. The hon. Gentleman must focus his remarks. We are debating a specific new clause. To go outside that and have a general discussion on the European convention on human rights or the private Bill procedure of the House would be out of order, and so I shall rule.

Mr. McDonnell

With great respect, Mr. Deputy Speaker, that is what I seek to avoid.

Mr. Cohen

The new clause and amendment No. 22 are grouped under the heading "Compatibility with the European Convention on Human Rights". My hon. Friend developed an argument about possible liability under the convention. My hon. Friend the Member for Thurrock (Mr. Mackinlay) said that the Minister might be liable. In the past, when local authorities were in breach of the law, they were subject to district audit, surcharge and punishment, but often when Ministers have been found in British courts to be in breach of the law, they have not been subject to a penalty. Now it will not be the British courts that make a decision, but the European Court. Is my hon. Friend saying that a Minister, or this Parliament as a corporate body, or an unincorporate body, could be subject—

Mr. Deputy Speaker

Order. That intervention is far too long.

Mr. McDonnell

The point that I was trying to make, perhaps not clearly enough, is that I no longer believe—the Pinochet case shows this—that localised immunities allocated by individual Parliaments or states can provide adequate protection when human rights have been contravened. Individual Ministers and all hon. Members are liable for their own action. On that basis, the new clause may provide us with limited protection. The new clause seeks to ensure that the Bill does not become an Act until we have a clear statement from the Attorney-General or another Law Officer on behalf of the Government that the Bill does not contravene the human rights convention.

I can tell the right hon. Member for Cities of London and Westminster that I appreciate the City of London Corporation giving its legal opinion. I would welcome a copy of that opinion and the name of the counsel who provided it. However, it is somewhat discourteous not to circulate that opinion in advance, given that this matter has been raised on three separate occasions in the past 12 months.

The point of section 19 of the Human Rights Act 1998 is to ensure that all of us—officers of the House, Members of Parliament and Ministers—are given independent advice in which we can have confidence. Had we had a statement from the Attorney-General, or had the matter at least been referred to him during the Committee stage, we would have had some response that we could have taken into account in the debates.

Mr. Bermingham

Would it surprise my hon. Friend to learn that the courts throughout the land are being advised by the Lord Chancellor's Department to implement article 6 of the European convention before 1 October in decisions that they are currently making? After 1 October, there will be no problems. Would it not be logical for Ministers to examine the convention and implement it in their legislation?

Mr. McDonnell

With the greatest respect to my hon. Friend, who is experienced in these matters and in the law, section 19 of the Human Rights Act 1998 provided that, in advance of the formal implementation of the European convention on human rights in British legislation later this year, Ministers could show compliance on the front of a Bill. That is pertinent to this new clause. We were hoping that acceptance of the new clause would enable that provision to be incorporated not in private legislation generally—I accept that—but in this specific legislation, because of the concerns that have been expressed about it on both sides of the House.

In our debates, it has been noticeable that few, if any, Members of Parliament have defended the existing system. Few, if any, have defended the reforms. Some Ministers have said that this may be a staging post on the road to further reform, but have not defended the current proposals in their own right.

The rationale for the new clause is that the 1998 Act does not apply to private Bills. Section 19 on statements of compatibility does not apply to private Bills. We have had rulings on that from the Speaker, and we accept that. Therefore, we must propose an amendment, such as the new clause, to each private Bill to see whether it is compatible with the European convention on human rights.

Section 19 of the Act is specific. It states: A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill— …make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights". We raised this matter on Second Reading, and the Committee discussed it to see whether the Bill is in contravention of the convention. Section 19 continues: or … make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill. We had a statement from the Minister that the Government wished the House to proceed with the Bill, but that was not in relation to compliance with the convention.

Mr. Deputy Speaker

Order. The hon. Gentleman is repeating arguments. He must direct his remarks to whether or not the new clause should be accepted by the House. It relates specifically to the Bill and the proposed action by the Secretary of State. I do not want to hear the arguments that I have heard already more than once this evening being repeated yet again—otherwise I shall have to invoke Standing Order No. 42.

Mr. McDonnell

I am not entirely sure what Standing Order No. 42 is, Mr. Deputy Speaker.

Mr. Deputy Speaker

The hon. Gentleman will find out if he persists in straying from the subject of the new clause.

Mr. McDonnell

I think that that is what they call an object lesson, Mr. Deputy Speaker.

It is crucial for us to know whether the Bill contravenes article 3 of the first protocol before it is enacted, for several reasons. For one thing, if we do not know that, we shall become liable. As was made clear in our debate on the European convention, article 3 has crucial implications. It requires Governments who signed the convention to support and promote free and fair elections. In our view—no Minister can contend that the selling and purchasing of votes—

Mr. Deputy Speaker

Order. The hon. Gentleman is now beginning to deal with the substance of the Bill, and with arguments that we have already heard. The new clause is specifically directed at action demanded by the Secretary of State to deal with a specific situation, and the reasons underlying why that might be necessary have been rehearsed many times.

Mr. McDonnell

With the greatest respect, Mr. Deputy Speaker, it is difficult to debate the new clause without exploring all the ramifications of the Bill in the context of the convention. If only to protect ourselves in the future, we should all say why we consider the new clause to be so critical, because saying whether the Bill contravenes the convention will be important in ensuring that none of us are liable in the future.

I want to be assured that any record of today's debate makes plain my sincere belief that the Bill does contravene the convention. On that basis, if the new clause is not accepted, I want it to be clear when the legislation is tested—if it is passed—in any action against individual Members or Officers that I am not liable. I want it to be clear that I did not support the Bill at any stage, but supported the new clause to try to ensure that it would not be enacted before a statement had been made about whether it contravened the convention.

Mr. Bermingham

My hon. Friend makes a valid point, which is often overlooked by Parliament. In December 1998, the court made a decision in Pepper v. someone or other—I cannot remember the name—[HON. MEMBERS: "Hart."] Thank you. The decision was that the courts would now look not only to the intention of Ministers, but to what lay behind a Bill, and to the intention that Parliament then had. If the intention of Parliament is to flout legislation that is about to be enacted, surely no court will uphold the contents of—in the present instance—this Bill.

Mr. McDonnell

That, too, is a valid point. I believe that, if the House rejects the new clause tonight and a change is made later, tonight's discussions can be prayed in aid with regard to our joint responsibility for promoting legislation in this way. My point, however, is that we are jointly, severally and individually liable for our actions. I believe that, unless the new clause is passed tonight, we as a Chamber will be liable for contravention of the convention. I want to make it plain that I was not party to the decision, and I support the new clause in order to prevent any future contravention in the legislation. As my right hon. Friend the Member for Chesterfield (Mr. Benn) said, the selling and purchasing of votes is not just corrupt, but contravenes the European convention on human rights.

8.45 pm

The demand for the new clause to go through goes beyond the protection of individual residents of the City of London Corporation. If the Bill goes through, it will enable a breach of the human rights not just of corporation residents, but of my constituents.

Under the Greater London Authority legislation, the City of London Corporation is treated as any other London borough in consultation and development of policies by the new structure for London government: the London mayor and Greater London Authority. Under a range of policy areas, the mayor is required in law to consult the corporation on the development of those policies. Therefore, the introduction of further selling of the business vote undermines the human rights not just of corporation residents, but of my constituents. In that corrupt way, the corporation will be elected and will influence London wide policy.

The ramifications for the human rights of the whole of London's population should be not only debated, discussed and examined by the House, but, under the new clause, considered by the Attorney-General. The new clause would enable the Attorney-General to consider the matter before the Bill's enactment. I hope that it would allow a report to be brought before the House—I believe that that is what was understood by my hon. Friend the Member for Thurrock—and a thorough debate to take place. The thorough debate would revolve around whether the Bill complied with the provisions in the European convention on human rights on the free expression of the opinion of the people.

Mr. Mackinlay

My new clause does not provide for a report to come back, but that would be ideal. Ideally, both the promoters and the Minister would get the mood of the House and suggest that we abandon tonight's proceedings, or adjourn, and ask for a report. However, failing that, my new clause would mean that the Act could not be triggered until such time as the matter had been brought back.

Mr. McDonnell

I understand what my hon. Friend says, but if a report is not brought back under the new clause, the House will not be able to discuss the validity of the Attorney-General's views. At least under section 19 of the Human Rights Act a statement is made. I was hoping that the new clause would enable at least some report to the House. If it does not, it may need further discussion and amendment later. I would welcome the right hon. Member for Cities of London and Westminster to rise to his feet to withdraw the Bill for redrafting, but I have gone beyond that hopeful stage. I can see that you, too, Mr. Deputy Speaker, are beyond that stage.

There are implications not just for City of London Corporation residents, but for all the constituents of Greater London. That is why I as an individual Member of Parliament for a London constituency think that the issue is critical.

I appreciate that, under the Human Rights Act, there is an opportunity for a get-out clause. It has not been referred to, but I will draw that out briefly. Section 10(2) of the Act provides for remedial orders, which, in layman's terms, give the Government an opportunity to come back. If the Government have got legislation wrong and are found by the European Court to be in contravention of the European convention on human rights, they will be able to issue a remedial order. That order gets individual Ministers off the hook, not that I am particularly bothered about that at this stage. It enables us all, I suppose, to express a view with regard to liability. However, the new clause would obviate the necessity for such remedial orders. I believe that if the Bill were passed, a remedial order would clearly be required.

Consequently, I urge my hon. Friend the Member for Thurrock to consider the new clause's potential and the Government's ability eventually to promote a remedial order. My hon. Friend may want to enter discussions with Ministers on the drafting of relevant remedial orders, should the new clause be passed.

Mr. Deputy Speaker

Order. The hon. Gentleman is ahead of himself. The substance of new clause 1 is to call upon the Secretary of State to make a statement to the effect that, in his view, the provisions of the Act are compatible with the Convention rights. That is the limit of new clause 1. Even if the new clause were approved by the House, it would not debar someone later from challenging a statement of the Secretary of State. Therefore, we should be considering not remedial orders, but, right now, whether a statement will even be made.

Mr. McDonnell

With the greatest respect, Mr. Deputy Speaker, there will be no opportunity to challenge any statement made under the new clause. As my hon. Friend the Member for Thurrock has just clarified, the statement would not be a report to the House. The problem with the new clause is that, even if it were passed, it would provide no procedure for a report or statement to be made to the House. As my hon. Friend has advised me, however, although the new clause is not intended to provide such a procedure, the use of such a procedure should be considered.

If a statement is not made to the House for debate, and if the Government are subsequently found to be remiss and in contravention of the convention, remedial orders will be required and all hon. Members will be complicit in contravening the human rights legislation. That is the logic that I am following in the debate.

I should be quite happy to engage in a dialogue or discussion with the right hon. Member for Cities of London and Westminster and my hon. Friend the Member for Thurrock on how the matter might best be dealt with. Today, however, I urge the House to proceed no further with the new clause. None the less, if we divide on it, I shall vote for it, as it would at least provide a fall-back position.

Section 6 of the Human Rights Act 1998 is very specific on what is lawful and what is unlawful. I am therefore at a loss to understand why the Under-Secretary of State for the Environment, Transport and the Regions, the hon. Member for Streatham (Mr. Hill), has not yet intervened to say whether the Government have considered the issues and the Bill, so that a statement might be made in accordance with the new clause.

As I have made very clear, I believe that we could act differently by throwing out the Bill and starting again with a more democratic Bill—

Mr. Deputy Speaker

Order. I am sorry to interrupt the hon. Gentleman again. However, not only is he repeating himself within the space of a very few minutes, but he is again ignoring my advice that he cannot revert to how the Bill is being dealt with. We are dealing with one simple matter: new clause 1.

Mr. McDonnell

I was going to finish my sentence by saying, "because of its offence against the human rights legislation", and that I support new clause 1.

I also pray in aid some of the work that we have been doing on human rights legislation in relation to local government around the world. Recently, a conference of the Commonwealth Parliamentary Association permitted us to examine and debate the human rights role and responsibilities of individual member states of the European Union and of the Commonwealth. New clause 1 is intended to ensure that the Government address the human rights issue by including in the Bill a requirement for them to make a statement, and it accords with some of the work being done by the Commonwealth Parliamentary Association.

At the conference, Richard Bourne, chairman of the Commonwealth human rights—

Mr. Deputy Speaker

Order. I would accept an allusion, but we will not have a full discussion of that conference, which is quite outside the scope of the amendment.

Mr. McDonnell

Mr. Deputy Speaker, I have respected your views throughout the debate, and you have been kind to me in every debate into which I have entered. However, with the greatest respect, you are not to judge whether I was about to make an allusion or a full statement on the matter, because I had not made it.

Mr. Deputy Speaker

Order. The hon. Gentleman must have a care about challenging the rulings of the Chair. He was about to launch into further references to the conference. I think that he had made a sufficient allusion to it in support of his general argument, which was therefore in order. However, I have had to remind the hon. Gentleman on a number of occasions of the specific matter that we are discussing. He has repeated himself several times, using the same words over and over again. That is causing me to repeat myself in calling him to order. The hon. Gentleman should respect the rulings that I have given from the Chair, and ensure that the remainder of his remarks is strictly within the terms of the new clause. Otherwise, I shall have to invoke Standing Order No. 42.

Mr. McDonnell

The discussion at the Commonwealth human rights conference was clear about the huge role that Governments had to play in the protection of citizens' human rights and the promotion of local tenets of democracy. The new clause would enable the Government to make a statement, before we proceed further with the Bill, that they value local democracy, value and uphold democratic rights and, on that basis, believe that we are not in contravention of the European convention on human rights. In my view, we are. In my view, we tread a dangerous path. It is my contention that all legislation should comply with the European convention, and private Bills should not be exempt. On that basis, I support the new clause.

Mr. Andrew Dismore (Hendon)

The right hon. Member for Cities of London and Westminster (Mr. Brooke) gave the House an assurance that the promoters of the Bill had found no contravention of convention rights, but he has been challenged by hon. Members to say where that advice came from. That is a very important issue, for this reason.

I do not wish to construe article 3—the right to free elections—bearing in mind your earlier constraints, Mr. Deputy Speaker. However, it could be said in relation to article 3 that if the lawyers who advised the promoters of the Bill on this point had offices in the City of London, they could have had a vested interest in giving their opinion. If, for example, those lawyers have huge, swish offices in one of the more upmarket parts of the City, the rateable value of their property may be several millions of pounds.

Mr. Peter Bradley (The Wrekin)

And several votes.

Mr. Dismore

Several hundred votes, I say to my hon. Friend. Under schedule 1, each million pounds works out at 100 votes.

It may be that those lawyers thought that this Bill could be a good Bill for lawyers. The City of London sometimes has policies concerning what the legal profession should be up to in the City, and I have expressed criticisms of City lawyers in other debates. Those lawyers may well come to the view that the City should be doing more to promote the interests of lawyers and, by packing the vote with several hundred of their nominated electors could influence the outcome of City of London policy through the election procedures that we are being asked to approve tonight. Those who may have been asked to advise on the Bill may have had a vested interest in saying that it does not contravene the European convention on human rights.

Mr. McDonnell

On that basis, does my hon. Friend agree that it behoves the right hon. Member for Cities of London and Westminster to publish that opinion this evening—even if it is only laid around the House—and the name of the counsel who gave that opinion?

Mr. Dismore

I am grateful to my hon. Friend for that intervention, as it is essential that we know who gave that advice and whether the lawyers involved, for example, already have representatives on the corporation of London. There may already be common councillors or City aldermen from that law firm. There may be a close connection between the lawyers advising the City and the City itself. If we could see the opinion, we could determine whether the views on articles 2 and 3 were correct. We could also check whether it was obtained fairly, and properly given.

My hon. Friend the Member for Hayes and Harlington (Mr. McDonnell) noted that, besides the firm of solicitors to which I referred, leading counsel may also be involved.

9 pm

Mr. Bermingham

Is not the date of the advice relevant also? Opinion in respect of validity and compliance has changed rapidly over the past 18 months. An opinion that is two or three years old may be worthless.

Mr. Dismore

One of the problems of the Human Rights Act 1998 is that it contains no definitions to help construe the terms of the articles of the European convention. My hon. Friend makes an important point. There has been an awful lot of case law recently, and the interpretation of the convention has developed alongside it. I am sorry to say that, once or twice, British Governments have been found to be in contravention when they had considered that to be unlikely.

Mr. Peter Bradley

My hon. Friend is a distinguished lawyer, and will know that one gets the advice that one pays for. Would it not be useful to see the instructions on which the advice that we are discussing was based?

Mr. Dismore

Yes. My hon. Friend and I used be members of Westminster city council. We were often shown legal opinions, and then we got wise to asking to see the instructions on which they were based. That was illuminating, as we discovered that one gets the answers to the questions that one poses.

I should like to know whether the lawyers were asked to advise on the definition of "free" in article 3. The word could mean fair, or that something does not have to be paid for. As my right hon. Friend the Member for Chesterfield (Mr. Benn) noted earlier, the Bill would make people pay for votes. For example, a person at odds with the City of London's policy on joining the euro might rent or buy some buildings to get a few votes in elections in the City, in the hope that he would be able to influence City policy. Several millionaires with a firm view on that matter may decide to spend their money on mounting such an attempt.

I should also like to know whether the lawyers were instructed to construe the phrase "free expression", which appears in article 3.

Mr. Bermingham

If I were a multi-millionaire—and I am not, being a practising lawyer—and bought property in the City worth millions of pounds, I could vote there and I would also have all my property votes. Why should my property votes, which would have been purchased, be worth more than my human votes, which I would have earned by residence?

Mr. Dismore

My hon. Friend makes a valid intervention. I hope that the right hon. Member for Cities of London and Westminster will reveal the contents of the lawyers' opinion, and the instructions that they were given.

Before my hon. Friend intervened, I referred to the term "free expression" in article 3. I think that that term should mean that people can put their crosses wherever they choose on the ballot paper. However, the people who will be asked to exercise their "free expression" will be nominated by a qualifying body—in other words, their employers. I can envisage that people will mark their ballot papers in a way that they know will please their employers.

That practice harks back to the old days of the rotten boroughs, when people were required to vote in the way preferred by their squire. The City is run by the third millennium's squirearchy, and the Bill would enable them to tell their underlings how to vote. I should like to know whether the lawyers who advise the City were asked to construe the definition of "free expression" in that context.

Mr. Bermingham

Does my hon. Friend agree that this is an example of the perfect political Whip, effectively saying, "If you don't vote the right way, you're out."?

Mr. Dismore

This goes beyond what my hon. Friend says; in this House, if one votes against the Whip—

Mr. Deputy Speaker (Mr. Michael J. Martin)

Order. The hon. Gentleman is straying from the subject. He must keep within the terms of the new clause before us.

Mr. Dismore

I am grateful to you, Mr. Deputy Speaker. I was perhaps getting a little carried away in responding to my hon. Friend's intervention, because I thought that he made a valid point.

My point follows the earlier intervention of my hon. Friend the Member for The Wrekin (Mr. Bradley). It goes back to the main defence against the new clause proposed by the right hon. Member for Cities of London and Westminster: that a legal opinion was obtained saying that this piece of legislation complied with the European convention.

Mr. Deputy Speaker

Order. The new clause that I am referring to was moved by the hon. Member for Thurrock (Mr. Mackinlay). Is that the new clause that the hon. Member for Hendon (Mr. Dismore) is discussing?

Mr. Dismore

It is, Mr. Deputy Speaker, and I am grateful to you. You were not in the Chamber earlier, but you are quite right in that my hon. Friend the Member for Thurrock (Mr. Mackinlay) made the point in support of his new clause. However, in responding on behalf of the promoters of the Bill, the right hon. Member for Cities of London and Westminster made the point that the new clause was not necessary because a legal opinion had been obtained by the City that it complied with the European convention, and that we did not have to worry.

I am questioning whether that legal opinion has any validity for the purposes of our debate, bearing in mind that we have yet to see it, as well as seeing the instructions. The instructions to the City lawyers may simply have said, "Let us know whether this complies with the European convention" without drawing attention to the specific points that I have raised.

Mr. Tony Benn

Could my hon. Friend advise me? Let us suppose that the Bill is taken to the European court under the convention. The first question to the Attorney-General will be, "Did you consider the Bill?" We are told by the promoter of the Bill that the Attorney-General did not; we are told that he has not responded. The Attorney-General will be unable to say that he has never thought of it because all these debates have highlighted that point, and still we have a silent Attorney. That must make Britain much more vulnerable if, as is almost certain, the Act—as it will be—is taken to a court for consideration.

Mr. Dismore

I am grateful to my right hon. Friend for that intervention. The phrase "silent Attorney" is probably a contradiction in terms, but I get the drift of his remarks. If the Bill were challenged in the European courts, Her Majesty's Government, especially the Attorney-General, would be on the receiving end, not the City of London. If the Attorney-General and the Government have not considered that, and without the new clause being incorporated and any view being reported back to the House for debate, the Government could be buying a pig in a poke.

Mr. David Heath

Is not the most extraordinary thing about the debate the fact that no duty is placed on the Bill's promoter or, indeed, on the corporation of the City of London? The duty is placed on the Secretary of State. The Minister could have curtailed this entire discussion by simply accepting the implied duty that would have been placed on him by legislation promoted by the Government.

Mr. Dismore

The hon. Gentleman is absolutely correct. When we vote on Third Reading, we must be sure that the Bill complies with the convention. If not, as my hon. Friend the Member for Hayes and Harlington said, we could accidentally be in breach of the European convention, simply because we had accepted the word of the right hon. Member for Cities of London and Westminster. I know that the right hon. Gentleman is a very decent chap; I am sure that he is very well versed in these matters. He may well have seen the legal opinion, although I do not know whether he has.

Today, the right hon. Gentleman told us that the City of London Corporation had obtained an opinion that the measure does not breach the European convention. Will he tell us whether he has read that legal opinion and the instructions that gave rise to it? I should be happy to give way to him. Before I gave way to a series of interventions, the main thrust of my argument concerned whether those instructions directed the lawyers properly to the questions that they should consider in construing article 3 and other provisions in relation to the European convention.

Mr. McDonnell

My hon. Friend the Member for Thurrock (Mr. Mackinlay) mentioned—I think in error—that there would be an opportunity to discuss the matter on Third Reading if such a statement were made. The new clause would not enable the Third Reading to take into account a statement by the Attorney-General; it would apply merely before the provisions of the Act come into force. As I tried to point out, despite being interrupted several times, we will not have an opportunity to debate any statement because it will not be made until after the House has dealt with the Bill. Based on that, we are jointly and severally liable for whatever happens in due course.

Mr. Dismore

I am grateful to my hon. Friend for making that point. Perhaps that is why when the Bill reaches Third Reading—irrespective of whether the new clause is accepted—we should vote against it anyway. There is a strong argument that the Bill is an extremely bad one.

Mr. Cohen

As my hon. Friend the Member for The Wrekin (Mr. Bradley) has pointed out, our hon. Friend the Member for Hendon (Mr. Dismore) is a distinguished lawyer, whose expertise is most valuable to the House.

Mr. McDonnell

It is free.

Mr. Cohen

Will my hon. Friend the Member for Hendon tell us whether, in these circumstances, it is usual for a body such as the City of London to consult counsel on one specific point? Would that show that the body was worried about that particular point? In my hon. Friend's opinion, by not publishing the advice and by insisting on secrecy, does that not show there might be something fishy—

Mr. Deputy Speaker

Order. The hon. Gentleman is pushing his luck.

Mr. Dismore

I am grateful to my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen), because he has made an interesting intervention. It goes back to the point made by my hon. Friend the Member for The Wrekin as to the importance of the instructions. Those instructions might well reveal the motivation behind obtaining the opinion. They might reveal that the City was not only worried, but may also have had its own view on the matter, which the lawyers were asked to consider.

If we are to vote against the new clause, not only do we need the assurances of the right hon. Member for Cities of London and Westminster that the City has found that particular opinion, but the right hon. Gentleman should put his money where his mouth is, or rather the City—for whom he speaks—should do so: we should see the legal opinion and the instructions on which it is based. We should see that before we proceed much further with the debate.

The right hon. Gentleman has had ample opportunity to intervene on me and on other hon. Members to say, on behalf of the City, that the legal advice and instructions would be made public. He could have said, "We have nothing to hide. We are happy that we obtained the legal opinion in good faith". He could have told us that the City had instructed the lawyers at great length to address the points that I made in relation to article 3 and other provisions that could be contravened by the Bill. We would all be happy about that. Indeed, if we had that opinion, some of us might be prepared to show a copy to the Attorney-General in the Lobby—although of course we cannot do so because he is in another place.

Mr. McDonnell

On a point of order, Mr. Deputy Speaker. We have had an extensive debate on the legal opinion that the City of London Corporation has sought and obtained. We know that it exists because of the statement by the right hon. Member for Cities of London and Westminster (Mr. Brooke). What procedure may we now take so as to adjourn the House to enable the right hon. Gentleman to circulate that legal opinion before the debate continues?

9.15 pm

Mr. Deputy Speaker

Order. These are matters for debate, and we cannot adjourn the House on the basis of what has been debated. We must allow the debate to continue.

Mr. Dismore

Thank you, Mr. Deputy Speaker.

Mr. Gordon Prentice (Pendle)

Further to that point of order, Mr. Deputy Speaker. That raises the interesting possibility that there may be a multiplicity of legal opinions, and that the promoters are being coy because the City favours only one of those opinions.

Mr. Deputy Speaker

Order. The hon. Gentleman should not concern himself too much with what legal opinion the promoters took, because the main matter before us is the new clause that has been tabled by the hon. Member for Thurrock (Mr. Mackinlay). That is all that we should concern ourselves with.

Mr. Dismore

Thank you, Mr. Deputy Speaker. The reason why we have been considering the issue of the opinion obtained by the City is that my hon. Friend the Member for Thurrock, in moving that the new clause be read a Second time, argued very strongly that we had no legal advice before us.

Mr. Bermingham

On a point of order, Mr. Deputy Speaker. Please do not think me unkind. If the Chair has just ruled that we must think only about the new clause and not about the opinion, is that not a bit like a look-out on the Titanic being told that he is sailing the Atlantic and to ignore the icebergs?

Mr. Deputy Speaker

Order. Although I used to work in a shipyard, I do not know a great deal about the Titanic, but I would tell the hon. Gentleman that, while it is allowable to refer to the opinion that was sought by the City of London, hon. Members' harping on about it at great length concerns me. That is why I am telling the hon. Gentleman that we can move on now. The point has been made that the City of London has sought legal advice in this matter. I think that we all seek legal advice from time to time, but that point has been made, so perhaps we can move on.

Mr. Dismore

I am grateful to you, Mr. Deputy Speaker.

We understand that, if the new clause were incorporated into the Bill, the Secretary of State, in making a statement, would seek the Attorney-General's opinion. The problem that we have in the House is that we cannot seek the Attorney-General's opinion because he is not a Member of this House. The Attorney-General does not attend Attorney-General's questions; the Solicitor-General attends in his place. I certainly would not say that the Solicitor-General is not a distinguished lawyer, but he is not the Attorney-General.

The answer given to my hon. Friend the Member for Thurrock by the right hon. Member for Cities of London and Westminster was that that did not matter, because the City had obtained its legal opinion. I would simply say that if we had that opinion, we could judge for ourselves.

Mr. Deputy Speaker

Order. I would say that there is such a thing as tedious repetition, and I would say that the hon. Gentleman is straying on that because he has mentioned that point. Before I entered the Chamber, the point was also mentioned by one of his hon. Friends, so we cannot belabour it. We have the new clause before us. If the hon. Gentleman is running out of things to say, it may be time to conclude his remarks.

Mr. Mackinlay

On a point of order, Mr. Deputy Speaker. During those exchanges, I was able to take a look at "Erskine May". May I draw your attention to page 388? I am sure that you are very familiar with that particular page. There are no pictures in it, but it does relate to this point. I raise it on a point of order, addressing it through you to the right hon. Member for Cities of London and Westminster (Mr. Brooke). It says: There is no rule to prevent Members not connected with the Government from citing documents in their possession, both public and private, which are not before the House, even though the House will not be able to form a correct judgment from partial extracts. However, footnote 9 says: A private Member's action in handing a document to a Minister in support of arguments was ruled to be 'very irregular'". Although that footnote related to the handing of documents by a Back Bencher to a Minister, it would be reasonable to assume that, similarly, it was highly irregular for the right hon. Member for Cities of London and Westminster to hand over documents and not bring them to the attention of the whole House.

Mr. Deputy Speaker

The hon. Gentleman has just read out a very interesting quotation from "Erskine May".

Mr. Cohen

On a point of order, Mr. Deputy Speaker. You will know that Select Committees and the House have the power to insist that both people and papers are brought before them when that is relevant. I submit that it is relevant to receive counsel's advice before the debate is concluded. May I put it—

Mr. Deputy Speaker

Order. That is not a point of order. The question of bringing people or documents before the House is not a matter for debate. We are now debating the new clause tabled by the hon. Member for Thurrock.

Mr. McDonnell

On a point of order, Mr. Deputy Speaker.

Mr. Deputy Speaker

I hope that it is a point of order. I get the feeling that some hon. Members are seeking to prolong the debate. [Interruption.] Order. I have dealt with points of order and not one of them was a proper point of order. Some hon. Members are testing the patience of the Chair.

Mr. McDonnell

Of course, I would not do that, Mr. Deputy Speaker. However, may I give notice, on a point of order, that we shall table a substantive motion in the House requiring the production of the document?

Mr. Deputy Speaker

That is not a point of order; the hon. Gentleman can do whatever he wants. I call the hon. Member for Hendon to resume his speech, but if he has nothing to say other than to repeat the case that he has already made, he must sit down.

Mr. Dismore

Thank you, Mr. Deputy Speaker. I have quite a few other points to make about the new clause.

First, if we had the Attorney-General's opinion, it would provide a much stronger basis on which we could proceed with the Bill.

Mr. John Cryer

Let us leave aside the legal opinion for a minute. If this Act were challenged in the courts, does my hon. Friend think it conceivable that the courts would not consider the House's deliberations this evening?

Mr. Dismore

If such matters came before the courts—the High Court, the House of Lords or, beyond that, the European Court of Human Rights—it is inevitable that, under the provisions of Pepper v. Hart, to which my hon. Friend the Member for St. Helens, South (Mr. Bermingham) referred, the courts would consider what was said in the House. If the Government did not provide the certificate sought by the new clause and appeared before the court—the Government and not the City would defend the legal action—they would be in great difficulty given the points made in the debate.

Because of earlier rulings, we are not able to draw the House's attention to the detailed breaches that were alleged in relation to the Bill, but we can at least make it absolutely clear that, in the absence of a certificate from the Secretary of State, many of us have reservations. If my right hon. Friend the Secretary of State were to give a certificate, that would go a long way towards satisfying me. I would know that the opinion would be based on the opinion of the Attorney-General, for whom I have great regard.

Mr. Bermingham

If a certificate were given, not only would my hon. Friend be satisfied, but so would I. However, bearing in mind the rulings that already exist under articles 34 and 33 and protocols 3 and 7 of the convention, we need to know on what basis the certificate would be given.

Mr. Dismore

The matter goes beyond that. The new clause would not prevent a legal challenge being made even if a certificate were given. The purpose of a certificate is not to provide one with a cast-iron defence in the courts or a public immunity defence. It would simply reassure the House that the Bill complied with the European convention. It is not a defence to go to court and say, "Well, we've got a certificate so you can't sue us," but the certificate would reassure us.

Mr. Bermingham

Does my hon. Friend further agree that, if the certificate and the reasons behind it were given, we could see whether or not the Government had concluded that a certificate could be given and, therefore, whether or not they thought the Bill was a bad Bill—which is what we have been saying for the past two and a half hours?

Mr. Dismore

My hon. Friend makes a valid point. If such a point were read into the proceedings of the House, it could also be raised during a legal challenge under the precedent set by Pepper v. Hart. If the issue were to appear before the courts, not the City but the Government would be in the dock.

This point is particularly important when one considers the convention. For illustrative purposes, we have all focused on article 3—the right to free elections—but other articles, such as article 2 on the right to education, are even more important. I shall certainly not go through the construction of that article, because there is a risk that it could be contravened by the Bill. Suffice it to say that there are reservations in the context of the Human Rights Act.

I can see the most bizarre position developing whereby no certificate has been given; somebody challenges whether proper education is being provided in the City of London; the Government end up in the dock and there is some reservation—without any great thought about whether article 2 is contravened by the Bill. We would suddenly find ourselves in the most horrendous legal mess in trying to interpret the position.

New clause 1 is very much needed. It would give the House great reassurance that the Bill complies with the convention—or, to adopt the point of view of my hon. Friend the Member for St. Helens, South, that it does not do so. When we are asked to give the Bill a Third Reading, that should be very much to the forefront of our minds.

Mr. McDonnell

Legal advice is being bandied across the Chamber—unpublished or not—but will my hon. Friend clarify that his main thrust is that it is essential that we achieve protection in some form? What would be the consequences of not having such protection under the new clause?

Mr. Dismore

The most obvious consequence will be that the House will have passed legislation that does not comply with the European convention on human rights or with our own Human Rights Act. That in itself would have other consequences—in addition to the Government's perhaps looking rather foolish because they would have been found in contravention of the legislation in the European Court.

I mentioned earlier that our Government have been caught out by the European Court on only a couple of occasions in three years—which is not bad when compared with the previous Government's record. I certainly hope that our Government continue to maintain their very good record on the convention.

Mr. Bermingham

Would not the consequences of being caught out be having to agree under the terms of settlement to compensate and to rectify? The cost of rectification in this case would be enormous.

Mr. Dismore

My hon. Friend is correct. One problem is that the City is very much a law unto itself—that is why trying to reform it is difficult. We may end up with huge legal bills and having to pay compensation bills for infringing people's rights. We may have to try to unstitch decisions in the City and hold new elections there, having first passed better legislation that incorporates one person, one vote, rather than one building, one vote. I very much hope that the Government will take on board the fact that the consequences could be horrendous, and will either ensure that new clause 1 is agreed to so that we have an opinion, or prevail on the City to release the opinion, so that we can at least check whether we agree with it.

Mr. Peter Bradley

I am worried about the implications of my hon. Friend's comments about legal advice. Can he construe any circumstances in which such advice may be given to justify, for example, the constitution of the upper Chamber on the basis of property ownership rather than democratic franchise?

Mr. Dismore

I am very tempted—

Mr. Deputy Speaker

Order. We could not stray into those matters under this narrow new clause.

Mr. McDonnell

rose—

Mr. Dismore

I give way to my hon. Friend the Member for Hayes and Harlington.

Mr. McDonnell

The issue of consequences has been raised and I can understand that the residents of the City of London—or, as a result of the Greater London Authority Act 1999, the residents of Greater London—would be the offended party, but who would bear the cost? It would not be the City of London Corporation any more because the Bill would become a public Act, and because the Government have not intervened—

9.30 pm

Mr. Deputy Speaker

Order. I have already heard the hon. Gentleman make that point. He cannot go over it again.

Mr. Dismore

I am grateful to you, Mr. Deputy Speaker. In conclusion—

Mr. Cohen

Will my hon. Friend give way on one brief point? The whole thrust of my hon. Friend's argument is that the House needs the statement from the Secretary of State; otherwise the whole matter could be taken to the European Court. He knows that there is to be a mayor elected for the rest of London. Does he think that the mayor might—

Mr. Deputy Speaker

Order.

Mr. Dismore

I am grateful to my hon. Friend for his point. The problem with legal challenges is that, if the Bill is not in compliance with human rights legislation, such a challenge could come from any quarter and be made in any court. However, I think that my hon. Friend slightly misunderstands my earlier point, which is that legal challenge is possible, whether or not there is a certificate of compliance. All such a certificate does is reassure the House that the chance of such a challenge being made is small.

A challenge could come from the mayor or the Greater London Authority, from a resident of the City or a business in the City, or from any aggrieved person with a remote interest in the City. That is why new clause 1 is so important. Even if there were a broad consensus in support of the Bill, some mischievous individual might attempt to unpick it by pursuing lengthy legal proceedings through the courts. We all know how long it can take a case to go though the lower courts, the High Court and the Court of Appeal, before getting to the European Court. The Bill could be the source of litigation lasting 10 or 15 years. In the end, the only beneficiaries would be lawyers, and it is not the purpose of the House to provide lawyers with a living—even though I should declare an interest in that I am a solicitor.

The new clause is extremely important. The House requires the assurance that it would provide and I hope that it finds favour with hon. Members.

The Parliamentary Under-Secretary of State for the Environment, Transport and the Regions (Mr. Keith Hill)

I start by thanking the right hon. Member for Cities of London and Westminster (Mr. Brooke) for giving the House the necessary assurances on the compatibility of the Bill with convention rights.

Mr. McDonnell

Will the Minister give way?

Mr. Bermingham

Will the Minister give way?

Mr. Hill

For heaven's sake, give me a chance. Well, even though I have heard my hon. Friend the Member for Hayes and Harlington (Mr. McDonnell) more than once today, I shall give way to him—although I warn him that it will be the only time that I do so.

Mr. McDonnell

Does the Minister's remark mean that he has seen the legal opinion? If so, why has it not been brought to the House and copied to hon. Members?

Mr. Hill

I have not seen the legal opinion. However, the right hon. Member for Cities of London and Westminster is an honourable Member. It is his duty as the sponsor of the Bill to give the necessary assurances, and he has done so. I have no intention of impugning his honour or his integrity.

Mr. Peter Bradley

On a point of order, Mr. Deputy Speaker. Once before, I made the mistake of referring to a Member specifically as the "honourable" Gentleman. I was reprimanded on the basis that all Members are honourable Members, therefore the expression is meaningless.

Mr. Deputy Speaker

That is not a point of order. The Minister can express himself any way he pleases, as long as he observes the rules of the House.

Mr. Hill

I am grateful to you, Mr. Deputy Speaker.

Let me deal with the concerns expressed by various hon. Members about the Secretary of State's involvement, which is the subject of the new clause. We have been debating the new clause for the past two and a half hours, so it does not seem unreasonable that I should make an observation regarding it. The law is entirely clear: the Human Rights Act 1998 requires that, for public Bills, the Minister in charge must make a statement of compatibility with convention rights, or state that he is unable to do so. There is no equivalent requirement for private Bills or private Members' Bills.

Mr. Bermingham

I speak from practical profession experience, going back more than 30 years. Does the Minister accept that the European Court might not care to think about whether legislation is public or private, but that it will think about the rights of the citizen and ask itself one simple question: have the citizen's rights been infringed? Whether it is a public Bill or a private Bill matters not a tinker's cuss. The European Court will enforce the rights of the convention.

Mr. Hill

I hope to come on to that point in due course.

I am saying that in various incarnations—

Mr. Dismore

Will my hon. Friend give way?

Mr. Hill

Just a minute.

In various incarnations I have heard my hon. Friend the Member for Hayes and Harlington raise the question of compliance in relation to the Bill. He has done so on several occasions on points of order preceding the Bill's consideration. You will recall, Mr. Deputy Speaker, that during each of the preceding two occasions when the Bill has been discussed the occupant of the Chair has made it clear that there is no provision in legislation or in the rules of the House for making statements of compatibility with convention rights in relation to a private member's Bill or private Bills.

The view has been taken that the issue is one for debate and not for the Chair. The rules of the House are therefore entirely clear on this matter. The guidance from the Chair is also entirely clear, and we are complying with that guidance and with the law.

I take up the issue that was raised initially by my hon. Friend the Member for Thurrock (Mr. Mackinlay). It was picked up and danced with by many other hon. Members. The specific issue was the possible future role of my right hon. and learned Friend the Attorney-General. Should a court wish to declare an Act incompatible, the Crown is given an opportunity to argue against it. It is our understanding that that is a right and not a requirement. The central point is that under existing legislation it is the sponsor who is required to state his view on compatibility. Parliament can then take a view and amend accordingly if it wishes to do so. A further statement from the Government, either on a private Bill or a private Member's Bill, will not change whether the Bill complies with the Human Rights Act 1998. It is Parliament that needs to get the Bill right, not the Minister, not the Government and not the Attorney-General.

Mr. Mackinlay

Are the Government neutral on the new clause? Will there be a free vote for all right hon. and hon. Members, including those who are on the payroll? Can my hon. Friend give an assurance that there will be no Whips outside the Lobby picketing to ensure that Labour Members turn down the new clause? Can he give us an unequivocal assurance on that?

Mr. Hill

As the Minister speaking from the Dispatch Box, I cannot be responsible for events that occur outside the Chamber. I feel very much responsible for what occurs when I am at the Dispatch Box. My hon. Friend has undoubtedly received the Whip during the past few days. My recollection, as I am sure it is his, is that the vote was clearly and unequivocally described as a free vote. If that was on the Whip, I am sure that that will satisfy my hon. Friend and other hon. Friends in the Chamber that it is a free vote.

Mr. Cohen

I am grateful to my hon. Friend for giving way. Indeed, he is truly honourable.

Before the intervention of my hon. Friend the Member for Thurrock (Mr. Mackinlay), was he saying that it would be Parliament and Members of Parliament who would be liable if the Bill became an Act and is in breach of the European convention? I can understand that Ministers should not be liable and I sympathise with that point. However, the Bill comes from the City of London. Should not responsibility fall on the City and not on my hon. Friend the Minister or Parliament?

Mr. Hill

Strictly speaking, we are not debating liability in this context. Instead, we are debating where liability lies for a declaration about the compatibility of the Bill with the convention. The fact is that it lies with the sponsor, who has discharged that duty. It would therefore be wholly inappropriate—

Mr. Dismore

rose—

Mr. Peter Bradley

rose—

Mr. Hill

No, I shall not give way. It would be wholly inappropriate for the Secretary of State to be asked to make a statement on a Bill for which he has no responsibility. That is a matter for the Bill's promoters. The right hon. Member for Cities of London and Westminster has placed a statement on record on their behalf. That is the proper approach. I hope that his statement is sufficient to satisfy hon. Members, and that my hon. Friend the Member for Thurrock will withdraw the amendment.

Mr. Brooke

rose in his place and claimed to move, That the Question be now put.

Question put, That the Question be now put:—

The House divided: Ayes 137, Noes 68.

Division No. 35]	[9.40 pm
AYES
Ainsworth, Robert (Cov'try NE)	Collins, Tim
Allen, Graham	Colman, Tony
Amess, David	Cormack, Sir Patrick
Anderson, Janet (Rossendale)	Cotter, Brian
Arbuthnot, Rt Hon James	Cran, James
Armstrong, Rt Hon Ms Hilary	Crausby, David
Bayley, Hugh	Cunningham, Jim (Cov'try S)
Beard, Nigel	Davey, Edward (Kingston)
Betts, Clive	Davey, Valerie (Bristol W)
Blunt, Crispin	Davies, Quentin (Grantham)
Boswell, Tim	Davis, Rt Hon David (Haltemprice)
Bottomley, Peter (Worthing W)	Day, Stephen
Bottomley, Rt Hon Mrs Virginia	Dowd, Jim
Bradshaw, Ben	Duncan, Alan
Brazier, Julian	Eagle, Angela (Wallasey)
Brooke, Rt Hon Peter	Ennis, Jeff
Browning, Mrs Angela	Evans, Nigel
Cabom, Rt Hon Richard	Fisher, Mark
Campbell, Alan (Tynemouth)	Ftzpatrick, Jim
Campbell, Rt Hon Menzies (NE Fife)	Flight, Howard
	Flint, Caroline
Campbell-Savours, Dale	Foster, Michael Jabez (Hastings)
Caplin, Ivor	Foulkes, George
Casale, Roger	George, Andrew (St Ives)
Chapman, Ben (Wirral S)	George, Bruce (Walsall S)
Clifton-Brown, Geoffrey	Gill, Christopher
Coaker, Vernon	Gorman, Mrs Teresa

Green, Damian	Mullin, Chris
Griffiths, Nigel (Edinburgh S)	Murphy, Jim (Eastwood)
Hamilton, Rt Hon Sir Archie	O'Brien, Stephen (Eddisbury)
Heald, Oliver	Pearson, Ian
Healey, John	Perham, Ms Linda
Heppell, John	Plaskitt, James
Hill, Keith	Pond, Chris
Hodge, Ms Margaret	Pope, Greg
Howarth, George (Knowsley N)	Portillo, Rt Hon Michael
Howells, Dr Kim	Prentice, Ms Bridget (Lewisham E)
Hughes, Ms Beverley (Stretford)	Quinn, Lawrie
Hughes, Kevin (Doncaster N)	Randall, John
Humble, Mrs Joan	Rendel, David
Hutton, John	Robathan, Andrew
Jack, Rt Hon Michael	Roche, Mrs Barbara
Jackson, Helen (Hillsborough)	Ross, William (E Lond'y)
Jamieson, David	Roy, Frank
Jenkins, Brian	Russell, Bob (Colchester)
Johnson, Miss Melanie (Welwyn Hatfield)	Russell, Ms Christine (Chester)
	Ryan, Ms Joan
Jones, Rt Hon Barry (Alyn)	Sanders, Adrian
Jones, Helen (Warrington N)	Smith, Jacqui (Redditch)
Keeble, Ms Sally	Smith, Llew (Blaenau Gwent)
Key, Robert	Soley, Clive
King, Andy (Rugby & Kenilworth)	Southworth, Ms Helen
Kirkwood, Archy	Spellar, John
Laing, Mrs Eleanor	Spelman, Mrs Caroline
Lait, Mrs Jacqui	Squire, Ms Rachel
Leslie, Christopher	Starkey, Dr Phyllis
Levitt, Tom	Stoate, Dr Howard
Lewis, Ivan (Bury S)	Stuart, Ms Gisela
Lidington, David	Syms, Robert
Lilley, Rt Hon Peter	Taylor, Rt Hon Mrs Ann (Dewsbury)
Lock, David
Loughton, Tim	Thomas, Gareth R (Harrow W)
McCartney, Rt Hon Ian (Makerfield)	Timms, Stephen
	Turner, Dr Desmond (Kemptown)
MacGregor, Rt Hon John	Turner, Neil (Wigan)
McLoughlin, Patrick	Wicks, Malcolm
McNulty, Tony	Widdecombe, Rt Hon Miss Ann
Mactaggart, Fiona	Wills, Michael
Mates, Michael	Winterton, Nicholas (Macclesfield)
Meale, Alan
Moriey, Elliot	Tellers for the Ayes:
Morris, Rt Hon Ms Estelle (B'ham Yardley)	Mr. Desmond Swayne and
	Sir Peter Emery.

NOES
Ashton, Joe	Hood, Jimmy
Barnes, Harry	Hopkins, Kelvin
Bell, Martin (Tatton)	Hurst, Alan
Benn, Rt Hon Tony (Chesterfield)	Iddon, Dr Brian
Bermingham, Gerald	Illsley, Eric
Berry, Roger	Jones, Mrs Fiona (Newark)
Best, Harold	Jones, Dr Lynne (Selly Oak)
Butler, Mrs Christine	Keen, Alan (Feltham & Heston)
Cann, Jamie	Ladyman, Dr Stephen
Cawsey, Ian	Linton, Martin
Clapham, Michael	Uoyd, Tony (Manchester C)
Clarke, Tony (Northampton S)	McDonnell, John
Collins, Tim	Mackinlay, Andrew
Connarty, Michael	McWalter, Tony
Corbyn, Jeremy	Mahon, Mrs Alice
Cousins, Jim	Marshall-Andrews, Robert
Cryer, John (Homchurch)	Michie, Bill (Shefld Heeley)
Dalyell, Tam	Miller, Andrew
Davidson, Ian	Morgan, Alasdair (Galloway)
Dawson, Hilton	Naysmith, Dr Doug
Dismore, Andrew	Olner, Bill
Dobbin, Jim	Pickthall, Colin
Efford, Clive	Pike, Peter L
Gibson, Dr Ian	Prentice, Gordon (Pendle)
Golding, Mrs Llin	Rammell, Bill
Gordon, Mrs Eileen	Savidge, Malcolm
Heath, David (Somerton & Frome)	Sawford, Phil
Hinchliffe, David	Simpson, Alan (Nottingham S)

Skinner, Dennis	Willis, Phil
Smith, Angela (Basildon)	Wise, Audrey
Stewart, Ian (Eccles)	Wood, Mike
Stinchcombe, Paul	Wright, Anthony D (Gt Yarmouth)
Stunell, Andrew
Taylor, David (NW Leics)	Tellers for the Noes:
Tynan, Bill	Mr. Harry Cohen and
Wareing, Robert N	Mr. Peter Bradley.

Question accordingly agreed to.

Question put accordingly, That the clause be read a Second time:—

The House divided: Ayes 81, Noes 120.

Division No. 36]	[9.52 pm
AYES
Barnes, Harry	Linton, Martin
Bell, Martin (Tatton)	McDonnell, John
Benn, Rt Hon Tony (Chesterfield)	Mackinlay, Andrew
Bermingham, Gerald	McWalter, Tony
Best, Harold	Mahon, Mrs Alice
Bradshaw, Ben	Marshall-Andrews, Robert
Butler, Mrs Christine	Michie, Bill (Shef'ld Heeley)
Campbell, Rt Hon Menzies (NE Fife)	Miller, Andrew
	Morgan, Alasdair (Galloway)
Cann, Jamie	Naysmith, Dr Doug
Cawsey, Ian	Olner, Bill
Clapham, Michael	Perham, Ms Linda
Clarke, Tony (Northampton S)	Pickthall, Colin
Connarty, Michael	Pike, Peter L
Corbyn, Jeremy	Pond, Chris
Cotter, Brian	Prentice, Gordon (Pendle)
Cousins, Jim	Rammell, Bill
Crausby, David	Rendel, David
Cryer, John (Hornchurch)	Russell, Bob (Colchester)
Dalyell, Tam	Sanders, Adrian
Davey, Edward (Kingston)	Sawford, Phil
Davidson, Ian	Simpson, Alan (Nottingham S)
Dawson, Hilton	Skinner, Dennis
Dismore, Andrew	Smith, Angela (Basildon)
Dobbin, Jim	Smith, Llew (Blaenau Gwent)
Efford, Clive	Starkey, Dr Phyllis
George, Andrew (St Ives)	Stewart, Ian (Eccles)
Gibson, Dr Ian	Stinchcombe, Paul
Golding, Mrs Llin	Stunell, Andrew
Gordon, Mrs Eileen	Taylor, David (NW Leics)
Heath, David (Somerton & Frome)	Turner, Dr Desmond (Kemptown)
Hinchliffe, David	Turner, Neil (Wigan)
Hood, Jimmy	Tynan, Bill
Hopkins, Kelvin	Wareing, Robert N
Hurst, Alan	Whitehead, Dr Alan
Iddon, Dr Brian	Willis, Phil
Illsley, Eric	Wise, Audrey
Jones, Mrs Fiona (Newark)	Wood, Mike
Jones, Dr Lynne (Selly Oak)	Wright, Anthony D (Gt Yarmouth)
Keen, Alan (Feltham & Heston)
Kirkwood, Archy	Tellers for the Ayes:
Ladyman, Dr Stephen	Mr. Peter Bradley and
Lepper, David	Mr. Harry Cohen.

NOES
Ainsworth, Robert (Cov'try NE)	Brazier, Julian
Allen, Graham	Brinton, Mrs Helen
Amess, David	Brooke, Rt Hon Peter
Anderson, Janet (Rossendale)	Browning, Mrs Angela
Arbuthnot, Rt Hon James	Campbell-Savours, Dale
Armstrong, Rt Hon Ms Hilary	Casale, Roger
Bayley, Hugh	Chapman, Ben (Wirral S)
Beard, Nigel	Chidgey, David
Betts, Clive	Clark, Dr Lynda (Edinburgh Pentlands)
Blunt, Crispin
Boswell, Tim	Clifton-Brown, Geoffrey
Bottomley, Peter (Worthing W)	Clwyd, Ann

Coaker, Vernon	Levitt, Tom
Collins, Tim	Lewis, Ivan (Bury S)
Colman, Tony	Lidington, David
Cooper, Yvette	Lock, David
Cormack, Sir Patrick	Loughton, Tim
Cran, James	MacGregor, Rt Hon John
Davies, Quentin (Grantham)	McLoughlin, Patrick
Davis, Rt Hon David (Haltemprice)	McNulty, Tony
Day, Stephen	Marsden, Paul (Shrewsbury)
Dowd, Jim	Mates, Michael
Duncan, Alan	Meale, Alan
Eagle, Angela (Wallasey)	Merron, Gillian
Ennis, Jeff	Morris, Rt Hon Ms Estelle (B'ham Yardley)
Evans, Nigel
Fitzpatrick, Jim	Mullin, Chris
Flight, Howard	Murphy, Jim (Eastwood)
Flint, Caroline	O'Brien, Stephen (Eddisbury)
Foster, Michael Jabez (Hastings)	Pearson, Ian
Foulkes, George	Pope, Greg
Fox, Dr Liam	Portillo, Rt Hon Michael
Gill, Christopher	Prentice, Ms Bridget (Lewisham E)
Gilroy, Mrs Linda	Primarolo, Dawn
Gorman, Mrs Teresa	Quinn, Lawrie
Green, Damian	Randall, John
Griffiths, Nigel (Edinburgh S)	Reed, Andrew (Loughborough)
Hamilton, Rt Hon Sir Archie	Robathan, Andrew
Heald, Oliver	Roche, Mrs Barbara
Healey, John	Ross, William (E Lond'y)
Heppell, John	Russell, Ms Christine (Chester)
Hill, Keith	Ryan, Ms Joan
Hodge, Ms Margaret	Smith, Jacqui (Redditch)
Hogg, Rt Hon Douglas	Soley, Clive
Howarth, George (Knowsley N)	Southworth, Ms Helen
Howells, Dr Kim	Spellar, John
Hughes, Ms Beverley (Stretford)	Spelman, Mrs Caroline
Hughes, Kevin (Doncaster N)	Squire, Ms Rachel
Humble, Mrs Joan	Stanley, Rt Hon Sir John
Hutton, John	Stoate, Dr Howard
Jack, Rt Hon Michael	Stuart, Ms Gisela
Jamieson, David	Syms, Robert
Jenkins, Brian	Taylor, Rt Hon Mrs Ann (Dewsbury)
Johnson, Miss Melanie (Welwyn Hatfield)
	Thomas, Gareth R (Harrow W)
Jones, Rt Hon Barry (Alyn)	Twigg, Derek (Halton)
Jones, Helen (Warrington N)	Wicks, Malcolm
Keeble, Ms Sally	Widdecombe, Rt Hon Miss Ann
Kemp, Fraser	Wills, Michael
Key, Robert	Winterton, Nicholas (Macclesfield)
King, Andy (Rugby & Kenilworth)
King, Rt Hon Tom (Bridgwater)	Tellers for the Noes:
Laing, Mrs Eleanor	Mr. Desmond Swayne and
Lait, Mrs Jacqui	Sir Peter Emery.

Question accordingly negatived.

It being after Ten o'clock, further consideration stood adjourned.

Bill to be further considered on Wednesday 2 February.