HL Deb 27 November 1997 vol 583 cc1139-70

6.48 p.m.

House again in Committee on Clause 10.

Lord Goodhart: moved Amendment No. 68: Page 6, line 18, leave out ("may") and insert ("shall").

The noble Lord said

In substance this is a drafting amendment. I hope that it may be considered as an appropriate clarification of the duty of the Minister under Clause 10. It seems a little odd that if a Minister considers it appropriate to amend legislation, the Bill provides only that, he may by order make such amendments", rather than, "shall" by order make amendments to it. The same point applies to subsection (4). I do not think that I can take the matter further. I beg to move.

Baroness Williams of Crosby

Perhaps I may add one sentence to what my noble friend Lord Goodhart said and press the noble and learned Lord the Lord Chancellor a little further on the degree of pressure on the Minister to move relatively quickly in the event of incompatibility. That is obviously the point on which we need reassurance.

The Lord Chancellor

The effect of the proposed amendment is made very clear by the noble Lord, Lord Goodhart. It would replace the discretion of a Minister of the Crown to use the order-making power where he considers that appropriate to amend incompatible legislation with an obligation that he do so.

As I have made clear, we expect that the Government and Parliament will in all cases almost certainly be prompted to change the law following a declaration. However, we think that it is preferable, in order to underpin parliamentary sovereignty, to leave this on a discretionary basis. The decision whether to seek a remedial order is a matter for government to decide on a case-by-case basis. It would be wrong for a declaration automatically to lead to a remedial order. It would in effect be tantamount to giving the courts power to strike down Acts of Parliament if there were an obligation in all cases to bring remedial orders forward. This is a fundamental point on which it may be that we take a fundamentally different view from that of the noble Lord.

Lord Ackner

I intervene to invite my noble and learned friend's attention to the phrase, if a Minister of the Crown considers that, in order to remove the incompatibility, it is appropriate". We have reached the stage of the Minister having applied his mind to the question and deciding that it is appropriate to amend the legislation. I cannot see where this is a question of the courts striking down. The Minister has considered the matter and reached a conclusion that the legislation should be amended. That being so, it surely follows that he has an obligation to do what he considers to be appropriate.

Lord Goodhart

I respectfully agree with the noble and learned Lord, Lord Ackner. It seems to me that the element of discretion is already there. The discretion lies in the Minister's power to consider whether it is appropriate to amend the legislation. It seems to me extraordinary to contemplate a situation where the Minister has come to the conclusion, in the exercise of his discretion, that it is appropriate to amend the legislation but then decides not to do so. I do not think that there is a fundamental disagreement. But that seems to me to be contradictory within the terms of the clause.

Lord Coleraine

I suggest to the noble Lord that there is no real contradiction. Having considered it appropriate to amend the legislation, the Minister might decide that the best course is to introduce a Bill and not use the fast-track procedure.

The Lord Chancellor

I have listened to the argument. I am not persuaded, but I shall take the point away and consider it.

Lord Goodhart

On that undertaking from the noble and learned Lord the Lord Chancellor, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 69 and 70 not moved.]

Lord Williams of Mostyn: moved Amendment No. 71: Page 6, line 20, leave out subsection (3).

The noble Lord said: In speaking to Amendment No. 71, I shall, with leave, speak also to Amendment No. 77. Both amendments are technical. They provide that the power to make a remedial order is to be exercisable by Her Majesty in Council in cases where the legislation which has been declared incompatible is an Order in Council, whether the order has the status of primary or subordinate legislation. Under the Bill at present the power may be exercised in this way only if the Order in Council has the status of primary legislation. I beg to move.

On Question, amendment agreed to.

[Amendment No. 72 not moved.]

[Amendment No. 73 had been withdrawn from the Marshalled List.]

[Amendments Nos. 74 and 75 not moved.]

Lord Williams of Mostyn: moved Amendment No. 76:

Page 6, line 30, at end insert— ("( ) The power conferred by subsection (2) may also be exercised where the provision in question is in subordinate legislation and has been quashed, or declared invalid, by reason of incompatibility with one or more of the Convention rights and the Minister proposes to proceed under section 12(1)(b).").

The noble Lord said: This technical amendment extends the circumstances in which a remedial order can be made to include those where the courts have quashed a provision of subordinate legislation because it is incompatible with the convention rights and in accordance with Clause 12(1)(b) a Minister considers that a remedial order needs to be made urgently without going through the draft affirmative resolution procedure provided in Clause 12(1)(a). This will only be needed in cases where the incompatible subordinate legislation is itself subject to the draft affirmative resolution procedure. In other cases (for example, orders subject to negative resolution or to no Parliamentary procedure) the Minister would be able to make an order under the parent legislation without first securing parliamentary approval and would not need to rely on the power to make a remedial order. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn: moved Amendment No. 77:

Page 6, line 30, at end insert?— ("( ) If the legislation is an Order in Council, the power conferred by subsection (2) or (4) is exercisable by Her Majesty in Council.").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 78 not moved.]

Clause 10, as amended, agreed to.

Clause 11 [Remedial orders]

Lord Simon of Glaisdale: moved Amendment No. 79:

Page 6, line 41, leave out ("(including") and insert ("(but not").

The noble and learned Lord said: Amendment No. 79 is grouped with Amendment No. 80, which raises the same point, and Amendment No. 81 in the name of the noble Baroness, Lady Williams of Crosby, which covers much the same ground.

Clause 11 states that a remedial order may contain,

"such incidental, supplemental, consequential and transitional provision as the person making it considers appropriate".

I draw attention to the word "consequential".

Subsection (2) states: The power conferred by subsection (1)(a) includes— (a) power to amend or repeal primary legislation (including primary legislation other than that which contains the incompatible provision)".

That obviously goes beyond consequential provisions. The amendment is to substitute for "including" the words "but not".

I can see why the power is desired. The declaration of incompatibility may have repercussions in other parts of the statute book. However, subsection (2) goes well beyond consequential provisions and is far too wide. We cannot have Henry VIII trampling through the statute book in this way.

I can see a difficulty in my two amendments. They may not be easy to reconcile with subsection (1) and, indeed, the whole section may well need to be recast. I prefer the amendment of the noble Baroness, Lady Williams, and I shall leave it to her to make her case. I beg to move.

7 p.m.

Baroness Williams of Crosby

If it is convenient to the Committee, I shall speak to Amendment No. 81. Let me add to what the noble and learned Lord, Lord Simon, said, that many of us in this Chamber, and for that matter in another place also, have been concerned about the gradual spread of what are sometimes called "Henry VIII powers". It is noticeable in this Bill.

In the powerful report from the Delegated Powers and Deregulation Committee, paragraph 23 said explicitly, This is a Henry VIII power of the utmost importance, which the Committee wishes to draw to the House's attention … We have noted the Lord Chancellor's statement to the House at Second Reading that the power can only be used under strictly limited circumstances. Without strict limitations, a secondary power of such potential width would be unacceptable".

The purpose of Amendment No. 81 is to constrain, as far as is reasonable, that issue of "potential width". Its phrasing is deliberately more flexible than the wording in the amendments of the noble and learned Lord, Lord Simon, in order to recognise the fact that it is sometimes necessary to amend primary legislation or to amend primary legislation in consequence of subordinate legislation resting upon primary legislation. We would not wish to prevent the Government from exercising such powers.

On the face of the Bill it seems to many of us that the constraints that the Government have to bear in mind in using these powers are not sufficiently explicitly brought out. It is with the purpose of both exploring the Government's intention and urging upon the Government the need to limit the power explicitly in the Bill so far as it may be feasible to do so, that my noble friends and I tabled the amendment.

I know the Committee is sitting late and I do not wish to hold it up. But I want to say that all Henry VIII powers are troubling precedents. In a parliamentary democracy Henry VIII powers are the route towards an executive power unconstrained by adequate discussion and debate in Parliament. It is with a view to balancing those two necessary interests—that of the Executive and that of Parliament—and with all goodwill towards what is proposed in the Bill that I have tabled Amendment No. 81. We look forward to hearing the Government's response.

Lord Henley

Perhaps I may briefly offer a degree of support to the noble Baroness, Lady Williams of Crosby. Like the noble and learned Lord, Lord Simon of Glaisdale, I prefer her approach to that of the noble and learned Lord. We expressed earlier and will express again later our anxieties about Henry VIII powers. It is therefore only right that we support any amendments that seek to limit that power. For that reason I support Amendment No. 81, to which the noble Baroness, Lady Williams, spoke following Amendments Nos. 79 and 80.

Lord Ackner: I too support Amendment No. 81.

Earl Russell

I too add a word in support of this provision. Amendment No. 81 is a tighter drawing of the vires for the fast-track procedure. I support it for exactly the same reasons for which I opposed Amendment No. 67B; that the power is necessary for receiving another system of law. It should be clear that it is not necessary for any other purpose.

Lord Williams of Mostyn

I do not believe that there is any difference of approach in principle between those noble Lords who have spoken and the Government's stance.

It is clear from Clause 10(2) that a Minister will be empowered to make only such changes (apart from any consequential changes) as are appropriate to remove the incompatibility. As the Lord Chancellor said during the Second Reading debate, the power to make a remedial order may be used only to remove an incompatibility or a possible incompatibility between legislation and the convention."—[Official Report,, 3/11/97: col. 1231.]

The Select Committee on Delegated Powers and Deregulation noted the Lord Chancellor's remarks about the strictly limited circumstances under which the order-making powers will be used, and did not express any need for the amendments being proposed. The Government's intention therefore is perfectly plain. I am bound to say that, having listened to the argument (always fatal) in particular relating to the amendment proposed by the noble Baroness, Lady Williams—which, if I may say without disrespect, is designed to ensure that both the belt and the braces are worn on every appropriate occasion—we do not at present believe that there are inadequate safeguards. If reflection shows that there may be a case for a further safeguard, we will reconsider and return at a later stage.

Baroness Williams of Crosby

I thank the Minister for that assurance and simply add that, for some of us, the combination of belt and braces is extremely attractive.

Lord Simon of Glaisdale

I do not believe the noble Lord really met the point. We are all agreed that the fast-track provision—the Henry VIII clause—should not go wider than is required. But the noble Lord did not meet the argument that it does in this case, and it is not the only case.

The first way in which it goes far beyond what is necessary is in relation to the aggregation of the rule of implied repeal, to which we have referred on a number of occasions and to which we shall have to return on Report. In the meantime, I ask the noble and learned Lord the Lord Chancellor to bear in mind the famous words of Cromwell to the General Assembly of the Church of Scotland, "I beseech you to consider the possibility that you might be wrong".

I ask him again, with all the powers at my command, to look again at the argument for simplifying the measure—not going at all contrary to his scheme, which in general I support—by dealing with antecedent legislation by the use of the well-established and accepted rule of the repeal of inconsistent earlier legislation by a later statute. That is entirely consistent with the supremacy of Parliament, which I know my noble and learned friend is anxious to preserve.

As for this case, despite the kind and emollient words of the noble Lord, Lord Williams of Mostyn, it goes far beyond what is necessary. What is necessary is what is defined by the noble Baroness, Lady Williams, in her Amendment No. 81, which has now won general support. As I indicated, I prefer it to mine. However, on recommending Cromwell to both the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Williams, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 80 to 82 not moved.]

Clause 11 agreed to.

Clause 12 [Procedure]:

Lord Henley: moved Amendment No. 83: Page 7, line 7, at beginning insert ("subject to the provisions of subsections (1A) to (1D)").

The noble Lord said: In moving this Amendment, I shall speak also to Amendments Nos. 85, 86, 88 and 89. We come back to the Henry VIII power and, to some extent, we come back to the debate that we had earlier on the amendment in the name of my noble friend Lord Campbell of Alloway. In my noble friend's case, he was going somewhat beyond what was recommended or suggested by the delegated powers scrutiny committee. We have put forward an amendment here which I hope will to some extent allow the Committee to consider whether a new procedure should be developed, as the delegated powers scrutiny committee suggested, to scrutinise such orders, modelled on that for the second stage of parliamentary scrutiny of deregulation orders.

I appreciate that it is not the same as that for those deregulation orders, but it is similar in effect in that the draft of any remedial order will be laid before Parliament for a period of 60 days. During that time anyone can make representations to the Minister about the order. When the order then comes into effect—this appears in Amendment No. 85—it would be for the Minister to make clear what representations he had received and also what changes he had made to the order as a result of those representations.

I have no intention of pressing the amendments to a Division today but it is certainly a matter I would want to come back to on Report, depending on the view taken by the Government. It is important that the House should have an opportunity to consider some process whereby amendments can be made to the orders before Parliament, as suggested by the delegated powers scrutiny committee.

At this stage in the proceedings I would not want to delay the Committee by digging out long quotations from noble Lords opposite when they were in Opposition about how they felt the Government should respond to reports from the delegated powers scrutiny committee. What I can say to the noble and learned Lord the Lord Chancellor is that we always took very seriously indeed the advice given by the delegated powers scrutiny committee. The House was pleased that we did take that advice seriously.

I very much hope that the Government are prepared to take seriously the recommendations of the delegated powers scrutiny committee and that if they do not like our approach they will at least come forward with an approach which would allow the committee's recommendations to be made use of and, while still allowing a fast track procedure to operate, would allow both Houses to express their views on those orders and to make amendments where necessary. I believe that the amendments are relatively straight forward and simple and I do not believe that any further explanation is necessary. I certainly await with interest the Government's response. I beg to move.

7.15 p.m.

The Lord Chancellor

I appreciate the spirit in which the noble Lord, Lord Henley, has moved the amendment. He desires to know what the Government's thinking is. I shall proceed to tell him. But I should also say that we will ponder upon what he has said.

The effect of this group of amendments would be to alter the parliamentary scrutiny procedures for remedial orders contained in Clause 12. The noble Lord referred to the report of the Select Committee on Delegated Powers and Deregulation. He used that as the basis for the amendments because they are modelled on the first stage procedure for considering draft deregulation orders under the Deregulation and Contracting Out Act 1994. In paragraph 24 of the report the committee states:

the House may wish to consider whether there is a case for developing a new procedure to scrutinise such orders modelled on that for the second stage parliamentary scrutiny of deregulation orders".

There, if I may say so, I think the committee slipped. For "second", it should have said "first". The second stage parliamentary scrutiny of deregulation orders does not provide for the amendment of draft orders. It is the first stage that does.

We have considered that paragraph and the whole report with great care. The conclusion we have come to thus far is that Clause 12 of the Bill is adequate. In the present Bill remedial orders are limited specifically to amendments to legislation which are necessary to remove an incompatibility with the convention. The incompatibility will have been identified very, very precisely by a higher court or it will have emerged plainly from a judgment of the European Court of Human Rights. The cause of the incompatibility will have been very precisely identified. The remedial order will have the sole purpose of improving human rights by removing a closely defined incompatibility. We have therefore thought thus far that there is no need for an amendment-making mechanism.

In the last resort, if the proposed method of dealing with the incompatibility was considered by Parliament to be unacceptable, it would be able, under the existing terms of Clause 12, to withhold its approval to the order being made, or, in the case of an order made under Clause 12(1)(b), ensure that it ceases to have effect after 40 days. In practice, that would oblige the Government to make a fresh order.

This does, as at present advised, seem to us to be a sufficiently strong form of parliamentary control and one tailored to the needs of the Bill. On the other hand, we will ponder what has been said on the basis that, although it is possible to get the remedial order wrong, the scope for error in the circumstances I have described is really so little that we took the view that the provision for amendment was not necessary in the particular situation we were addressing. Similarly, I doubt whether inserting a minimum period of 60 days before remedial orders can be made under Clause 12(1)(a) would have any beneficial effect. There might well be occasions when a much shorter period for considering a draft order would suffice. What we have in mind is that an unnecessarily long fixed minimum period would unnecessarily delay the making of a remedial order and, accordingly, the removal of incompatible provisions of legislation for the purpose of enhancing human rights. Nonetheless, I have said that we will ponder; and we will.

Lord Henley

I am grateful to the noble and learned Lord for saying on three occasions that the Government will ponder over my amendment. That is the best one can normally hope for from the Government at this stage of a Bill. He seemed to imply that he saw no need to have an ability to amend such an order as the courts themselves had identified precisely what the problem was and that there was no further need to refine the issue. That seems to be saying that Parliament itself is incapable of doing better than the courts. That is something that we would want to consider very carefully because in many cases I believe that Parliament itself could possibly make improvements whether in this House or in another place.

He also seems to be saying that there is no need to have the power to amend such orders because, in the end, this House or the other place could throw out such an order. I believe that the noble and learned Lord—and certainly my noble kinsman Lord Russell would know this very well—that it is not that easy, particularly in this House, to throw out an order. He knows the conventions under which we operate. But the same can also be said to be true of another place with a large majority and the power of the executive. Merely to say that there is no need to be able to amend the order because in the end the House can throw it out, is possibly not good enough.

I did say that I had no intention of pressing the amendment this evening. I also said how grateful I was to the noble and learned Lord for agreeing to ponder this matter. I look forward to hearing what he will say, or what he will communicate, to me between now and Report stage. However, it is a subject that we shall have to return to then. There might be a slightly modified amendment or we might want to deal with the comments about the 60-day period being too long. But it is certainly a matter to which I want to return at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

Baroness Williams of Crosby: moved Amendment No. 84: Page 7, line 7. after ("been") insert ("scrutinised and reported upon by the appropriate committee of each House of Parliament, and").

The noble Baroness said: I owe the Committee an apology because it might have been better if my two amendments had been grouped together with the earlier set of amendments since they are to some extent dealing with the same problem. Therefore, I shall be brief in my remarks.

I invite the noble and learned Lord the Lord Chancellor to think adventurously and radically about this part of the Bill. At an earlier stage in our deliberations, and also at Second Reading, the noble and learned Lord said that one of the intentions of the Government was to encourage—because they do not have the right to order that it should occur—the creation of a joint committee on human rights in the two Houses of Parliament. To many noble Lords that seemed an attractive idea.

I do not always sympathise with the noble Lord, Lord Henley, but I do so on this point. He has suggested the possibility of an amendment, which is not possible in the present affirmative order structure in any way. Might it be possible for the noble and learned Lord, when he comes to look at this clause again before we return at Report stage, to consider whether such a joint committee, as he has previously discussed, is an appropriate body for scrutinising these orders? I fully appreciate that many of them will be technical, but many of them will not arouse significant issues for amendment. If there were to be a joint committee on human rights which dealt with other and much larger issues, it would not be unreasonable for it to have this responsibility as well.

I draw the noble and learned Lord's attention to the way in which the European Communities Select Committee operates. It mainly deals with large scale issues of inquiries and reports, but it also looks at directives and regulations at every one of its meetings. I am very honoured to be a member of that Select Committee. Therefore one would have a form of scrutiny which can then be reported to the House and also to another place, in the case of its committee, if there is any real problem about an order.

I also very strongly recommend to him the thought that perhaps involving Parliament more in issues of human rights, giving it clear responsibilities, is not only a way of ensuring that human rights are more generally understood in the country, but also of recognising that Parliament itself could usefully discharge many functions that it is not currently asked to do. There is a great deal of talent and ability in both Houses of Parliament which remain to be tapped in the interest of trying to ensure that human rights are properly upheld.

The final and last point I make is that the significance of my amendments—here I make a different point to that made by the noble Lord, Lord Henley—is essentially that they would require a report to be made or for the committee to clearly indicate that it does not intend to make a report. The point of that arises from a deep cynicism on the part of somebody who has also been a member of governments. Alongside public expenditure, the hardest concession to get from governments is time. It is very dangerous for scrutiny to be absorbed by the pressures of time in the legislative timetable. The purpose of my amendments in effect is to give power to the committee to ensure that it be heard if it chooses to be heard. I beg to move.

Lord Henley

The noble Baroness, Lady Williams, was kind enough to offer me some sympathy so on this occasion may I reciprocate and say that I have a considerable degree of sympathy for this approach, which is not so very different from mine. It is allowing for a slightly greater degree of scrutiny and possibly allowing the committee to suggest adjustments to the particular order. It is a slightly new procedure that the noble Baroness is recommending. But bearing in mind the remarks made earlier by my noble kinsman Lord Russell about importing a new concept into our legal system, occasionally requiring a new approach, similarly this is an idea where a new approach might be appropriate.

If the noble Baroness would like to consider between now and Report stage alternatives to her method or mine that we might jointly pursue at that stage, I shall be more than happy to join her in that. As Members of the Government so often say, I can say that my door will be open throughout that time to approaches from the noble Baroness.

Lord Meston

I should also have arranged for Amendment No. 90 to be grouped with these amendments or the earlier ones. With all the opening of doors and pondering going on, it is probably going to be unnecessary for me to say much about Amendment No. 90 other than to invite the Government to look at it in the same light as they were looking at the previous amendments. It seeks to extend the time for parliamentary scrutiny of remedial orders and to extend to Parliament the power to disapprove such orders when they take effect in cases of emergency.

The fast track procedure will be desirable when speedy action is necessary to redress some individual or minority grievance of a serious nature, although in some cases the existing prerogative powers at the disposal of the Home Secretary may be sufficient.

It is important to emphasise that the fast track procedure should be regarded very much as an exception to the normal process by which rectification of United Kingdom law for compliance with the convention is made. They should not become simply a more administratively convenient and less time-consuming way of changing the law on human rights. The single stage of parliamentary approval is substantially less extensive than the various stages and length of time devoted to normal government Bills and otherwise. Therefore, it is particularly important that parliamentary scrutiny procedures are effective.

The amendment does not include any requirement for particular lines of consultation prior to such orders being made before Parliament or for any particular form of explanatory memorandum to accompany draft orders when they are laid. I support my noble friend Lady Williams in suggesting that an important corollary is that we have an assurance that there will be some form of parliamentary committee on human rights with terms of reference to include the scrutiny of remedial orders as well as future draft legislation generally, for compliance with the convention.

Earl Russell

I wish to add one point in support of each of these amendments. In Amendment No. 84 there is reference to "the appropriate committee". That might be taken to refer not only to a human rights committee, which I hope that Parliament will create in its own time, but also to the Joint Committee on Statutory Instruments and the Delegated Powers Scrutiny Committee.

The noble and learned Lord may say that this is unnecessary, but I can recall regulations being put before this House when the Joint Committee on Statutory Instruments had not yet considered them. The person on the receiving end happened to be the noble Countess, Lady Mar. I should like to congratulate her most warmly on her success in obtaining the Peer of the Year award, which is much deserved.

Members of the Committee

Hear, hear!

Earl Russell

Being a shrewd parliamentarian, the noble Countess threatened to divide the House against the Motion that the House be resumed, a condition precedent for considering the order at all. Having put the fear of God into the Government Benches, she then relented and decided that she had made her point. So I believe that this amendment is necessary.

On Amendment No. 90, I should like to touch on the point about 60 days. I take the noble and learned Lord's point that one may occasionally want to go faster, but there is a problem here. I take it that it is wide of the Long Title to table any amendment to the Statutory Instruments Act 1946. However, there is a trouble in that Act. The "praying days"—the 40 days that we normally have—include judicial sitting days when this House in its political capacity is not sitting. During September there are quite a number of judicial sitting days when this House in its political capacity is not sitting, so on those occasions the "40 days" may present us with a difficulty. Perhaps that point should be borne in mind.

7.30 p.m.

The Lord Chancellor

I desire the Committee to appreciate that we shall ponder ideas to determine whether we think that they are good. The whole scheme of incorporation of the convention into domestic law shows a great respect for parliamentary sovereignty. Other models would have shown less respect. That is why we rejected them. The principle now—that remedial orders must be made by Parliament, not by the courts—is accepted as part of our deliberations in this Committee. The question therefore becomes how to ensure that there is adequate parliamentary scrutiny while recognising that the sooner that (consistent with parliamentary scrutiny) denials of human rights are remedied, the better. Our purpose therefore is to find the best balance. That is why I was good enough to say that I saw the force of the arguments made by the noble Lord, Lord Henley, on Amendment No. 83 and the other amendments grouped with it. We want to get the balance right and to ensure a proper role for Parliament. However, I want to express quite frankly why I have my doubts about the amendments.

First, I should like to correct the noble Lord, Lord Meston, a little. What I said very clearly before was that the Government favour a committee or committees. I did not say that there will be a committee. That is a matter for Parliament. I have a hesitation about an amendment which puts on the statute book the need for scrutiny and report by an appropriate committee of each House of Parliament in advance of knowing whether we shall have such a committee because that is dependent upon Parliament. I also have a concern that the very concept (even on the footing that we do have a committee) while good in terms of parliamentary scrutiny may be bad if it turned out to be an engine for delay in remedying human rights problems. One must balance all those points.

The Government obviously expect that Parliament would wish to give full scrutiny to any remedial orders, but the amendments would provide a committee or committees, which ex hypothesi do not yet exist, with an undefined period in which to carry out scrutiny and report. That means that there would be an undefined period of delay. Also, it is not normal practice for provisions of this kind to be set out in statute, and I am not convinced that it is appropriate for the Bill to set out what the functions of any parliamentary committee should be in this regard. I should have thought—I am open to counter suggestion—that if Parliament agrees to establish a parliamentary committee on human rights, which the Government hope that Parliament will do, its functions and powers could best be considered at that time.

I return to a point that I made earlier in the context of the previous grouping of amendments in the name of the noble Lord, Lord Henley. The noble Lord was inviting us to admit the possibility that a remedial order might either be wrong or be not as right as Parliament might be capable of making it, and therefore to be hospitable to the possibility of amendment. I should like to renew what I said previously, but in this context. It is important to remember that any declaration of incompatibility will be based on a fully reasoned judgment of a higher court. In practice, the point will be crystal clear. The remedial order will be intended to achieve no more and no less than is necessary to improve the incompatibility. Therefore, I seriously question—I invite those who have proposed the amendment also to question—whether there is much point in an undefined period for scrutiny, and therefore delay in removing an incompatibility which is causing a continuing denial of human rights. That is as frank an expression of my doubts as I can muster at this hour of the evening. We shall certainly ponder on the point, but in return I ask those who have posed the amendment also to ponder.

Baroness Williams of Crosby

In responding briefly, first may I thank the noble and learned Lord for what he has said and assure him that we shall ponder. Secondly, I am sure that he will fully understand, as will his noble friend, that our difficulty is that the joint committee was floated as a possibility without being in the legislation. I fully recognise that my amendment therefore relates to a possibility rather than to something that is a reality now, but I am sure that the noble and learned Lord will also understand that because of the timing of legislation it will be difficult to include such provisions in legislation once the committee has been formed.

As much as anything, the purpose of my amendment is to ask the Government to consider carefully whether such a provision might be within the terms of reference. I see no difficulty about including a limit to the amount of time allowed for scrutiny. That may be a matter on which I can agree with the noble Lord, Lord Henley, about bringing the two together.

Finally, in our view, it is important that there should be (admittedly in the more extreme cases) the possibility of amendment. Our difficulty with the affirmative order is that that possibility simply does not exist. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 85 to 90 not moved.]

Clause 12 agreed to.

Lord Molyneaux of Killead: moved Amendment No. 90A: After Clause 12, insert the following new clause—


(" .There shall be constituted a Commission to be known as the "Standing Advisory Commission on Human Rights" to advise the Secretary of State on any matter related to the Convention.").

The noble Lord said: The proposed amendment and the new clause which resides therein is, I think, much more modest than the demands made by various interest groups in the past which have been inclined to stray into demanding that the Government should provide assistance, financial and otherwise, for individuals challenging decisions or rulings.

Having listened to many noble Lords speak on earlier amendments, I am now convinced of the need for the proposed body. It will become essential. In my view, we cannot safely proceed without such an effective link between the European Convention on Human Rights and a whole range of United Kingdom departments. These cannot be expected to establish their own advisory body and, if they did go down that road, there would inevitably be conflict and many areas of overlap between departments. The advisory body proposed in this new clause should be proactive in the preparation of advice and the identification of possible solutions before complainants sought recourse to the courts, with all the inevitable costs and delays.

The proposed standing advisory commission on human rights would make another valuable contribution by being available for consultation with departments in the preparation of their legislation. I am certain that that would avoid situations in which legislation could be effectively challenged immediately a Bill had completed all its stages and received Royal Assent. Departments would benefit enormously from the availability of advice from such an advisory body representative of broad streams of national life, as opposed to departmental Ministers and draftsmen being buffeted by unworkable demands which, if met, would themselves contravene the European Convention on Human Rights.

I do not have in mind the abolition of certain commissions dealing with limited aspects of human rights. It is possible that in time these may wish to merge with this United Kingdom standing commission on human rights. The present Northern Ireland Standing Advisory Commission could become a valuable element in the main body to which the Northern Ireland commission could and would make a very valuable contribution by reason of its long experience in dealing with the same issues which debates on the Bill have unexpectedly uncovered. I beg to move.

Lord Goodhart

We on these Benches have listened with great interest to the amendment moved by the noble Lord, Lord Molyneaux of Killead. We recognise the extremely valuable work that has been done in Northern Ireland by the Standing Advisory Commission on Human Rights in that Province. We wish to reserve our position on this amendment because, while potentially it is capable of doing good work, it is far less effective than what we wish to see; namely, a proper human rights commission as discussed in Committee on Monday. If such a human rights commission were established we would see the standing advisory commission as proposed in this amendment as part of it, or the human rights commission itself doing the work proposed in the amendment. However, we regard this not so much as half a loaf as a quarter of a loaf instead of the full loaf of the proper human rights commission that we wish to see.

7.45 p.m.

Lord Hylton

My noble friend Lord Molyneaux has referred to the Northern Ireland Standing Advisory Commission on Human Rights. I have had the benefit of meeting that commission on a number of occasions over a period of years. I have also had conversations with its chairman and secretary. I should like to pay tribute to the work of that commission, which has had to operate under extremely difficult circumstances involving emergency law, Diplock courts and direct rule which have had the effect of suspending much of normal democracy.

I was also very glad to have had the opportunity some time ago to be connected with an inquiry into human rights and responsibilities in both the United Kingdom and the Republic of Ireland. The fruit of that inquiry was published eventually in book form by Macmillan and edited by the late Sydney Bailey. One of its recommendations was that there should be human rights commissions not only in Northern Ireland but in Scotland, England and Wales. I should like to see any new body that may be created, whether as a result of this amendment or otherwise, having the power to look at individual cases as well as simply considering themes and subjects which bear on human rights, and to give advice to individuals. While I acknowledge the limited scope of this amendment, I give it my support.

Lord Williams of Mostyn

The Standing Advisory Commission on Human Rights, to whose work I readily join in paying tribute, was created by the Northern Ireland Constitution Act 1973 for a particular purpose which is not related to any purpose that we are discussing within this Bill. The commission was to advise, the Secretary of State on the adequacy and effectiveness of the law for the time being in force in preventing discrimination on the ground of religious belief or political opinion and in providing redress for persons aggrieved by discrimination on either ground".

I say carefully that it is a much narrower function which is devoted to the problems of a particular part of the United Kingdom.

The amendment moved by the noble Lord, Lord Molyneaux, proposes the constitution of a commission to be known as the standing advisory commission on human rights. Its purpose is to advise the Secretary of State on any matter related to the convention. That misses the point of the Bill. The purpose of the Bill is to enable people who believe that their convention rights have been violated to enforce those rights in domestic courts. Its purpose is not to create a statutory source of advice for the Government on whether they are acting compatibly with the convention. We do not believe that any such device would have any practical value or merit. It does not go beyond anything that can be done by a parliamentary committee on human rights. It would not be in the business of advising individuals; it would be limited to giving advice to the Secretary of State. The Government do not see the value or virtue of such a commission. On that basis, I invite the noble Lord, having considered his suggestion with care, to withdraw his amendment.

Lord Hylton

Before the noble Lord sits down, can he say whether or not any parliamentary committee on human rights would be able to look at individual cases?

Lord Williams of Mostyn

As has been agreed on all sides, what any parliamentary committee looks at depends upon its terms of reference. Its terms of reference are by definition a matter for another place and this place if either or both Houses wishes to have such a committee.

Lord Molyneaux of Killead

I fully understand the point that has been made by the Minister. He will have noticed that I was very careful not to model the proposed commission on the Northern Ireland Standing Advisory Commission, for the simple reason that the world has moved on. It is true that that commission was set up in Northern Ireland in very different circumstances and for a very different purpose. But I am sure that the noble Lord will admit that in the course of all our debates in Committee on this particular Bill we have dealt with the very same subjects of racial equality, religious freedom and many other matters. If the present Bill had been in force when the Northern Ireland commission was set up, naturally its terms of reference would have been widened to include all those aspects.

I trust that, despite the Minister's rather discouraging response as opposed to the sympathetic response from other members of the Committee, in time the noble Lord and his colleagues will see the need for such a body. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Other rights and proceedings]:

Lord Meston: moved Amendment No. 91:

Page 7, line 30, at end insert?— ("( ) A court or tribunal which is required in any proceedings to consider whether or not any jurisdiction should be exercised in the United Kingdom or in another state shall have regard to whether, and to what extent, any party to the proceedings or any person under disability who is the subject of the proceedings may be affected by a denial or infringement of the Convention rights in such other state (whether or not that state is a signatory to the Convention).").

The noble Lord said: I hope that Amendment No. 91 is largely self-explanatory. It would require a court or tribunal exercising a discretion which required the consideration of competing jurisdictions—for example, whether to grant a stay of legal proceedings, or a sist as it is known in Scotland, or some other forum conveniens dispute—to consider the possible impact of an infringement of convention rights in the other jurisdiction. Most typically, it would require consideration of Article 6 rights—that is to say, whether there would be a fair hearing within a reasonable time.

It might also be used in the international child abduction cases in which application is made to a court in the United Kingdom to return a child to another country. The Child Abduction and Custody Act 1985 gives effect to The Hague Convention on the civil aspects of child abduction, but Schedule 1 to that Act, which contains the Hague Convention, omits Article 20.

Article 20 reads as follows:

"The return of the child under article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms".

Some of the considerations for a court in the United Kingdom in both Hague Convention and non-Hague Convention abduction cases may be as follows: how quickly proceedings concerning the child can be started and finished in the other country, whether the abducting parent will get legal aid to seek custody and to seek permission to remove the child again lawfully and whether he or she will be prosecuted upon return. These can involve European convention factors.

Article 20 of the Hague Convention was omitted from the schedule to the 1985 Act because it was considered unnecessary, given the other exceptions in the Hague Convention in relation to the mandatory return of children and because at that stage the terms of Article 20 had no clear meaning in English law. However, now that the United Kingdom is to incorporate the European Convention, I would suggest that in any case in which the courts of the United Kingdom are asked to consider exporting either litigation or people—which includes children—to other jurisdictions, regard should now be had to how such other jurisdictions measure up to European Convention standards. I beg to move.

The Lord Chancellor

This amendment would require a court making a decision about jurisdiction in any proceedings and, in particular, addressing the question of whether jurisdiction should be declined or asserted, to have regard to the possibility of the denial or infringement of European Convention rights in the other rival jurisdiction, regardless of whether the other rival state concerned was a party to the convention or not.

What this amendment is essentially seeking to do is to use this Bill to give effect in domestic law to Article 20 of the 1980 Hague Convention on the civil aspects of international child abduction. The main provisions of that convention, but not Article 20, were brought into force in the United Kingdom by the Child Abduction and Custody Act 1985, under which the Lord Chancellor is the central authority for England and Wales.

That this is an important issue I do not question. I question, however, the appropriateness of using this Bill to address it. Regardless of whether it is in principle a good idea to give domestic effect to Article 20, I do not believe that this Bill is the right vehicle in which to revisit this issue. The purpose of this Bill is rather grand. It is to give further effect in domestic law to rights and freedoms guaranteed under the European Convention on Human Rights. Its purpose is not to give domestic effect to the provisions of any other international treaty.

Issues of jurisdiction are very complex. They are governed by a number of international treaties, and this Bill is not, in my submission, an appropriate forum in which to consider these contentious issues. After all, the amendment would apply, as I read it, not only across the whole range of family proceedings but also to litigation generally, including commercial proceedings. The implications are therefore extremely wide and we would want to give them much further thought before making the change proposed here. Our deliberations on this Bill do not constitute an appropriate forum for discussing these contentious matters. I am sorry to disappoint the noble Lord, but I hope that he will not press this amendment.

Lord Meston

I will not pretend that I am not a little disappointed by the response of the noble and learned Lord the Lord Chancellor. I suggest that this is an appropriate Bill because this is the moment at which we are incorporating the convention and the message should be going to all the courts exercising any jurisdiction in this country that European Convention factors should now be considered among other factors in a wide range of jurisdictions.

Although I accept the point that this is an important issue and a complex matter and one that is certainly wider than The Hague Convention point which I mentioned in explaining the amendment, it is unfortunate that we shall have to wait until the introduction of other legislation which might be considered more appropriate. I would hope that some further thought could be given to this point before the Bill completes its parliamentary passage; meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 92 not moved.]

On Question, Whether Clause 13 shall stand part of the Bill?

Viscount Colville of Culross

On this Motion I seek a word of clarification from the noble and learned Lord the Lord Chancellor. Last week I asked him how courts such as the Crown court were to take account of the jurisprudence which comes from Strasbourg. He has written me a letter, which I received this morning. I showed it to my colleagues at court at lunchtime today and it was greeted with enormous interest by them, as it contains a number of most positive and constructive methods whereby we are all to be informed or to have available to us the jurisprudence which has arisen and will continue to arise. I thank him for that.

I suggest it is of sufficient interest to warrant rather wider dissemination than simply being in the form of a letter to me and three other Members of your Lordships' House. I welcome very much what the noble and learned Lord said about that.

Since I understand that it is the intention of the Government that the rights enshrined in the covenant should permeate throughout the entire judicial system, I now want to ask him when these rights may be used in the courts. I give an example of this, looking at Clause 13. One of the matters that tends to arise in a criminal trial—it does not happen very often, but it is quite important when it does—is the question of abuse of process. If there is an abuse of process and the court so holds, the trial does not proceed at all. The matter is stayed and the prosecution goes no further. Of course, if there is an abuse of process, it is highly desirable because it means that no further money is spent. there is no necessity for any appellate procedures but, most particularly, the defendant is let out of his misery because he knows where he is straightaway.

In 1992 the Court of Appeal said that many of the matters which tend to be raised by way of abuse of process can be solved as the trial proceeds. Of course, the Court of Appeal is perfectly right. However, there are two matters which arise under the European Convention: they are in Article 6.1 and Article 6.2. They are fundamental when it comes to consideration of abuse of process. The parts of the convention with which I am concerned are these: first of all, the question of delay and, secondly, the presumption of innocence.

Unlike most of my colleagues, I have the advantage of having been able to look at your Lordships' Library to see what it is that Strasbourg has said. In a case in 1995, it dealt with both those matters. It dealt with—I believe that it dealt with it on many other occasions—the question of delay, and, also, for the first time, it dealt with the presumption of innocence. The court itself held in a case called Allenet de Ribemont v. France that authorities other than the court itself may say things by way of pre-trial publicity which so undermine the fairness of the trial that the presumption of innocence enshrined in the covenant is breached.

In our terms, that would be an abuse-of-process argument. Indeed, it has happened in recent times more than once. It may be the press, it may be someone in the police, it may come from all sorts of sources, but the issue that is being raised before the trial has even started is whether the defendant will be able to have a fair trial, and whether a jury can be properly empanelled, which will not have been so prejudiced in its ideas that a fair trial is impossible.

That is the type of thing that has to be dealt with in any event. The domestic jurisprudence has been built up to guide judges so as to be able to come to a conclusion about it one way or the other. What I am asking the noble and learned Lord is: will the courts at that stage be able to take account also of the jurisprudence that has come from Strasbourg, because I believe that they should do so? If they cannot do it at that stage, if a trial cannot be prevented on the grounds that an analogous case has arisen at Strasbourg. and been pronounced upon, and that the court should take account of that, we shall spend a great deal of time and money, and we shall put defendants through a great deal of tribulation before the Court of Appeal finally decides the matter. I ask the noble and learned Lord: when can we take account, in the Crown court, for instance, of the deliberations that have come from Strasbourg, because I believe that Clause 13 should say, and perhaps it does: A person may rely at any stage of any proceedings on a Convention right"? Then it would go on as before. If it means that, I am content. I ask the noble andlearned Lord to clarify the point, and, I hope, confirm that I am correct.

8 p.m.

The Lord Chancellor

Clause 13(1) provides: A person may rely on a Convention right without prejudice to any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom".

The purpose of that provision is to ensure that the Bill gives but does not take away. A person may rely on a convention right, but he may also rely on any other right or freedoms he enjoys under the law.

Clause 13(1) relates back to Clause 7(1)(b) which provides: A person who claims that a public authority has acted … in a way which is made unlawful by section 6(1) may—

  1. (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
  2. (b) rely on the Convention right or rights … in any legal proceedings".
So a person can rely on the convention rights concerned in any legal proceedings. Next of course, any court or tribunal must take into account the judgments, decisions, declarations, or advisory opinions of the European Court of Human Rights because Clause 2(1) so provides.

It appears to me that it is for the court in question, and for individual judicial decision in any particular case, to decide when the point, based on convention law, is to be adjudicated upon. It is a matter to decide in its discretion whether the argument that is put before it, based on the convention, is one upon which it should decide, as, for example, a preliminary issue at the outset.

Nothing I shall say on the Motion that Clause 13 stand part should be relied upon as standing in the way of the court's discretion within its own independent sphere to decide when it is appropriate, in particular proceedings, to adjudicate upon a convention point.

Clause 13 agreed to.

[Amendment No. 93 not moved.]

Clause 14 [Derogations]:

Lord Williams of Mostyn: moved Amendment No. 94:

Page 8, line 6, leave out ("order made under subsection (1)(b)") and insert ("designation order").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendment No. 96. These are, again, technical drafting amendments. They replace references in Clause 14(5)(a) and Clause 15(5)(a) to an order made under subsection (1)(b) with references to a designation order. That is consistent with the use of the phrase "designation order" in Clause 14(4) and (6) and Clause 15(4). It is also shorter. 1 beg to move.

On Question, amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15 [Reservations]:

Lord Williams of Mostyn: moved Amendment No. 95: Page 8, line 25, leave out ("Schedule 2") and insert ("this Act").

The noble Lord said: Again, this is a technical amendment. It amends Clause 15(5) so as to ensure that if a designated reservation is withdrawn, the Secretary of State can make the required consequential amendments to the Human Rights Act itself so as to remove what would otherwise have been an otiose reference to the designated reservation in Clause 15(1)(a). At present Clause 15(5) allows that only in relation to references to a designated reservation in Schedule 2 rather than the Bill as a whole. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn: moved Amendment No. 96: Page 8, line 26, leave out ("order made under subsection (1)(b)") and insert ("designation order").

On Question, amendment agreed to.

Clause 15, as amended, agreed to.

Clauses 16 and 17 agreed to.

Clause 18 [Appointment to European Court of Human Rights]:

Lord Ackner:moved Amendment No. 97: Page 10, line 4, leave out from ("judges)") to end of line 6.

The noble and learned Lord said: I shall speak also to Amendment No. 98. The amendments relate to Clause 18 which deals with the appointment to the European Court of Human Rights of judges of this country. The amendment is a cry for clarification. If one looks at subsection (4)(a), it provides, in relation to Court of Appeal judges and mutatis mutandis in regard to other judges:

"a Lord Justice of Appeal or Justice of the High Court is not to count as a judge of the relevant court for the purposes of section 2(1) or 4(1) of the Supreme Court Act 1981",

which deals with the provision for the maximum number of judges. That is all straightforward. The subsection continues: nor as a judge of the Supreme Court for the purposes of section 12 of that Act (salaries etc.)".

My next amendment relates to subsection (6) which provides: The Lord Chancellor or the Secretary of State may by order … make such provision with respect to pensions payable to or in respect of any holder of a judicial office who serves as a judge of the Court as he considers appropriate".

I seek clarification. Section 12 of the Supreme Court Act is referred to in subsection (4)(a), which is the subject matter of my first amendment. It is an important section. It deals with the salaries of judges of the Supreme Court. Section 12(3) provides that: Any salary payable under this section may be increased, but not reduced, by a determination or further determination under this section".

I do not understand—I am sure that it is my fault and I apologise in advance—why Section 12 of the Act is removed in relation to any Lord Justice and subsequent judges who are transferred or appointed to the Court of Human Rights. Nor do I understand, if a judge is transferred, what protection he receives in regard to his salary. Can his salary be reduced from that which he is entitled to receive as a Lord Justice? Can his pension be interfered with? Subsection (6)(a) enables the Lord Chancellor to: make such provision with respect to pensions…in respect of any holder of a judicial office who serves as a judge of the Court as he considers appropriate".

Pensions are merely deferred salary. If the pension he determines is less than the Lord Justice, for example, is receiving, Section 12(3), which has hitherto protected the judge from any reduction in his salary, no longer operates.

My amendment merely seeks to obtain from the noble and learned Lord the Lord Chancellor an assurance that a transferred Lord Justice, or any other judge who is qualified for the Court of Human Rights, cannot as a result of the transfer find himself being paid less either by way of salary or by way of pension than he enjoys in the office which he holds. I beg to move.

The Lord Chancellor

I shall certainly reflect on the observations of the noble and learned Lord, but I shall endeavour to satisfy him here and now. Section 12 of the Supreme Court Act 1981 provides that judicial salaries, once determined, may not be reduced and are to be paid from the Consolidated Fund.

The purpose of the provision to which the noble and learned Lord calls attention is to be helpful and beneficial to the judge. It is to modify the existing law, which involves that a serving judge should have to resign his office if elected to the Strasbourg Court. We want him to remain in office as a High Court judge of the High Court, if that is what he is. Therefore, to that extent the provision is beneficial.

We take the view that obligatory resignation might well dissuade potentially good candidates from coming forward when the office of UK judge to the Strasbourg Court has to be filled. So far so good. A consequence of the change is that we disapply for the duration of his service in Strasbourg the provision under which a judge is entitled to receive his United Kingdom salary. That is because he will be paid by the Council of Europe the generous sum of 1,100,000 French francs, tax-free, per year. That is about £114,000 at current exchange rates.

I entirely appreciate that the noble and learned Lord tabled his amendments in order to receive an explanation of the intention behind the provisions. However, if his amendments were accepted, the effect would be that the judge would be paid not only, by public service standards, a handsome salary tax-free to be received from the Council of Europe but also his United Kingdom salary, even though he was not performing his duties as a United Kingdom judge. I am sure that the noble and learned Lord would be the first to agree that that would be too much of a good thing.

If it is accepted that the judge should not be paid both salaries, subsection (6) is necessary in order to allow suitable pension provision to be made. That will be made, but I am not yet in a position to inform the Committee what precisely the arrangements will be. They are under consideration. I hope that with that explanation the noble and learned Lord will feel able to withdraw his amendment.

8.15 p.m.

Lord Ackner

I am not sure where we have arrived. I understand the explanation. I had assumed that it might well be financially advantageous to the judge to transfer to Strasbourg, and I have never doubted the ability and enthusiasm of my noble and learned friend the Lord Chancellor, consistent with his obligation to safeguard the independence of the judiciary, to ensure that their emoluments are not reduced. But I do not find any of that protection reflected in the statute. That is why I have underlined the amendments which would cause the Government to focus on the point.

I am not wedded to the amendments. I would not be the first to resist the judges' salaries increasing substantially. Therefore, I shall be grateful if my noble and learned friend will confirm that if I withdraw my amendment he will agree to look at the wording of the provision so as to ensure that the protection of the judge, particularly in Section 12(3), which provides that his salary cannot he reduced, will be continued.

The Lord Chancellor

I will certainly look at the provision. But the noble and learned Lord understands the point that the judge cannot be paid two salaries and that he is receiving a substantially larger salary, tax-free, in Strasbourg. The noble and learned Lord's amendments would entitle the judge to receive both salaries and would disable me from making suitable arrangements as regards his pension. The right outcome is that he should have one salary and not two and have suitable provision made for his pension, balancing what is suitable against the amount of the salary which he will be receiving from the Council of Europe. It is to the latter that I am currently attending.

Lord Ackner

I thought I had made it clear that I am not wedded to my amendment. My amendment was merely to bring up short the noble and learned Lord the Lord Chancellor against this particular situation. I do not expect the judge to receive two salaries. I do not urge that. I want to ensure that he receives the protection which he has at the moment.

There is nothing in the legislation, nor would I expect it, to say that when he goes to Europe, he will be paid more and it will be tax free. I am told that that is what is hoped to be the position but it may all change. The situation in Europe may oblige some radical alteration in the emoluments of a judge. I hope it will not occur but it is quite possible that it will and there is absolutely nothing in this legislation which protects him. Nothing in this legislation says he will be paid tax free and certainly there is nothing in this legislation which says that he will receive £10,000 more than he receives at present. I do not expect it to be in this legislation.

But I expect to find in this legislation the protection which I find in Section 12(3). If protection of that kind can be put into this clause, then I am quite content. But the amendment was not intended to be an amendment which I sought to have accepted. It was merely to oblige the noble and learned Lord the Lord Chancellor to explain the position, and I am grateful that he has done that. But, unless there is something in the Bill itself to protect a judge from having his salary reduced, then he has not met my point.

I thought that he was going to reflect on that—it may be that the current word is "ponder" and I am putting it too high—when he rose to address the Committee. Perhaps he will confirm what is the position.

The Lord Chancellor

I shall certainly go so far as to say that I shall reflect further on what the noble and learned Lord has said. But what I said is perfectly clear. The judge's office as a High Court judge will continue but he will not receive the remuneration associated with that office while he is not carrying out the duties of that office. The office will continue but he will not be entitled to the remuneration of that office precisely because he will not he rendering the services which are the quid pro quo for the salary.

He will be choosing to following that course by entering into an agreement in terms of the conditions of service in Strasbourg which are clearly set out in a resolution of the Committee of Ministers of the Council of Europe. That is a public document and the salary which he will in fact receive, tax free of the equivalent of £114,000 per year at current exchange rates is what the salary will be.

As to the pension implications, I have said to the noble and learned Lord that I shall be considering those and I am in the course of doing so. But I am not in a position to say anything further now.

Lord Ackner

I still do not understand why it is so repugnant to my noble and learned friend the Lord Chancellor to say that the judge will not receive less than he obtains from his current office. That is clearly what the noble and learned Lord expects to be the case but he will not bring himself to enunciate that fact. Perhaps Pepper v. Hart is worrying him, I know not. But he has agreed to reflect on my submissions and I am content that that will occur. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 98 not moved.]

Clause 18 agreed to.

Clause 19 [Statements of compatibility]:

[Amendment No. 99 not moved.]

Baroness Williams of Crosby moved Amendment No. 100: Page 10, line 38, leave out ("to the effect that") and insert ("giving the reasons why").

The noble Baroness said: I can move this amendment briefly. I congratulate the Government on, in this particular case, requiring that a statement be made when new legislation is put forward. We see that desirable word "must" in the drafting of Clause 19. On these Benches, we are extremely pleased to see that.

I must say that a moment of inappropriate merriment overtook me when I looked at the original drafting of Clause 19, which refers to the Minister of the Crown making statements, to the effect that in his view the provisions of the Bill are compatible with the Convention rights".

My mind went back to a number of Ministers, somewhat unclear about what they were doing, who did indeed rather vaguely wave their hands in the air and make statements to the effect of this or that with no great precision, no great clarity and no great helpfulness to the House.

Therefore, from these Benches, we propose Amendments Nos. 100 and 102 in an attempt to persuade the Minister to be rather more clear as to what he says in his statement. We wish him to give the reasons for his statement of compatibility or non-compatibility as the case may be.

In doing so, we reflect recent recommendations stemming back as far as the Franks Committee of 1957 and the Justice All Souls Report under the distinguished chairmanship of Sir Patrick Neill, both of which strongly recommended the advantages of giving reasons in the making of law and in the administration of law.

Therefore, it seems to us that the amendments which we are here proposing and in the current mellow and friendly mood of the noble and learned Lord and his noble colleague, we hope that they will readily concede this, because it is simply a recognition that Ministers of the Crown are capable of clarity and I have no doubt that Ministers of this particular Government are more than capable of clarity.

Finally, I argue that the amendment has the great advantage of obliging the Minister to think through the statement he makes because he must give his reasons and answer to them. From these Benches, we commend the amendments to the Government. I beg to move.

The Lord Chancellor

The Committee will appreciate that this Bill could have gone through without any Clause 19 at all. In its present form, Clause 19 is a demonstration of the Government's commitment to human rights. I appreciate that the amendment provides that a statement is not enough and it must be a statement backed by reasons. I shall address that on its merits but I suggest that Clause 19 in itself is a very large gesture, as well as being a point of substance, in favour of the development of a culture of awareness of what the convention requires in relation to domestic legislation.

And so, by requiring the Minister in charge of a Bill to give a statement about its compatibility, we are underlining our commitment to undertaking further pre-legislative scrutiny of all new policy measures. The noble Baroness will appreciate that, if there had been no such provision in the Bill, that might have given a quieter life for Ministers. Also, where the Minister states that he is unable to make a positive statement about the Bill's compatibility, that will be a very early signal to Parliament that the possible human rights implications of the Bill will need and will receive very careful consideration. Therefore, a statement giving the Government's conclusions, whether positive or negative, on the status of the Bill will go a long way towards the achievement of those aims. Therefore I ask the Committee not to underestimate the significance of what is already there.

Of course, Parliament will wish to know the reasons why the Government have taken whatever view they have taken. Therefore, I can understand why these amendments have been put forward. But the reasoning behind a statement of compatibility or the inability to make such a statement will inevitably be discussed by Parliament during the passage of the Bill. Of course it will be; and it will be discussed thoroughly.

I believe that a debate in Parliament provides the best forum in which the Government's thinking can be fully explained. In those circumstances, therefore, I require a great deal of persuasion that a written statement on the face of a Bill, setting out the Minister's reasons, would add anything of real value.

In principle, the idea of the equivalent of written argumentative essays on the face of Bills does not appeal to me. Debate in the Chamber on such issues will inevitably take place and that, surely, is the natural forum for ascertaining the Minister's reasons and having him develop them so that Members of this Chamber can test by question and debate the sufficiency of the reasons. Is there any real need to clutter up the face of the Bill with a statement of reasons? I beg leave to doubt it.

Baroness Williams of Crosby

I thank the noble and learned Lord the Lord Chancellor. I should perhaps point out to him that I do not intend to move Amendment No. 102A, which requires a written statement. I am moving Amendment No. 100 and speaking to Amendment No. 102, which only require that the reasons are given to Parliament in exactly the way that the noble and learned Lord outlined as part of a Minister's statement, so that Parliament may in fact more precisely and more relevantly debate the issue. I simply commend that to the noble and learned Lord, not because I am trying to create difficulties for the Bill; indeed, I strongly accept what he said about Clause 19. It is a very important part of the Bill, not a minor part. It is a very long step forward. I strongly commend it.

I have tabled the amendments so as to bring the legislation in line with the Franks Committee and the Neill Report. It is a further example of an attempt to try to elicit from governments of all colours and of all times the reasons why they do what they do. That is the spirit in which I move the amendment, not in a spirit of trying to create many requirements for written reasons which I, too, see no reason for. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.30 p.m.

Lord Mackay of Drumadoon: moved Amendment No. 101: Page 10, line 38, leave out ("his") and insert ("Her Majesty's Government's").

The noble and learned Lord said: In speaking to this amendment, perhaps I may, for the convenience of the Committee, speak briefly to Amendment No. 103, which also stands in my name. I wish to make clear the reasons behind the amendments. I appreciate that Amendment No. 103 is not grouped with the one that I have just moved but, in view of the hour, I think it would be convenient for me to speak to both at the same time. The amendment has been tabled with a view to seeking to assist in making Clause 19 work when it in fact becomes law.

The first point to make is that, when, in the future, Parliament comes to discuss a new Bill, it will, with the greatest respect to individual Ministers, not really be concerned with the view of that individual Minister; it will be concerned with the view of the Government as to whether the provisions of the Bill which are to be debated are compatible with convention rights. That issue is essentially a question of law. It is inconceivable that, in most cases, the view will be the personal view of the Minister concerned. It will be the view of the Government informed by such legal advice as they will have taken, whether from Law Officers or from any other quarter. In effect, it will be the duty of the Minister to adopt that view and incorporate it in the statement which is to be given. If Amendment No. 103 were accepted, the suggested wording would then be incorporated into the statement which the Minister would then be required to repeat in this Chamber on Second Reading. I invite Members of the Committee to picture the scene in a year or two when this Government, or possibly another, introduces a Bill with the noble Lord, Lord Lester, sitting in his usual place in the Chamber. A statement will be made by a lay Minister in the effect that, in his view, the provisions of the Bill are compatible with convention rights. If I am not mistaken, I believe that the noble Lord, Lord Lester, would probably have something to say about it; indeed, he might conceivably have been involved in a case which touches upon the issue. In that situation we would have a most unusual discussion between an expert on the law and a layman whose knowledge was informed by an opinion of Law Officers whose existence he could not acknowledge—that is, the existence of the opinion, not that of the Law Officers—and the contents of which he could not disclose. I suggest that it would be sensible to make clear on the face of the Bill the fact that it is the Government's view which is important. When such statements are to be debated, as they surely are, the Government may also wish to think about how the existing convention relating to the advice of Law Officers will be applied. As a Question earlier this week disclosed, a Minister can be placed in a very difficult position when he cannot mention the existence of the advice and yet he is, in effect, being asked to defend a legal opinion. On that basis, in the hope that the amendment will be accepted as a constructive one and that the noble and learned Lord the Lord Chancellor has not used up all his pondering facilities, I beg to move.

Lord Williams of Mostyn

I believe that Amendment No. 103 was grouped with Amendment No. 99. The latter has, fortunately, come and gone but it is only sensible for me to deal with both amendments for the convenience of the Committee. Amendment No. 101 would not cause a great change to the Bill; it would simply replace "his" with "Her Majesty's Government". However, we believe that it is an important matter and one which is entirely consonant with what my noble and learned friend the Lord Chancellor said about the importance that we attach to Clause 19.

Our scheme plainly puts responsibility upon the individual Minister who has charge of the Bill in either relevant place. He is given the particular responsibility of enuring that the policy accords with convention rights. His is the duty and his is the responsibility to answer to this Chamber or the other place. We believe that to be the correct focus and that is where it presently stands. Of course, the Minister would be answering on behalf of Her Majesty's Government as, by convention, Ministers answer Questions not on behalf of their own departments but on behalf of the Government generally. We believe that the responsibility is so particular that it ought to be left as it is.

Amendment No. 103 would require a Minister to repeat a written statement that he had made about compatibility by way of a statement to the Chamber of which he is a Member, either before or during the Second Reading of a Bill. The answer is quite plain. Acts of Parliament do not usually—indeed, not at all—regulate what a Minister will or will not say to Parliament. What one needs here is, first, responsibility attached to the sponsoring Minister; and, secondly, the opportunity for questions.

The former Lord Advocate, the noble and learned Lord, Lord Mackay of Drumadoon, said that Ministers would not be able to deal with the noble Lord, Lord Lester. Of course, I have summarised what he said. but I do not accept that view for a moment. If a Minister is to be remunerated, at whatever modest level, he ought to know his brief before he comes to the Chamber.

Lord Mackay of Drumadoon

For the sake of the record, I should point out that I did not quite put it in the way outlined by the Minister; namely, that the Minister concerned would not be able to deal with the noble Lord, Lord Lester. However, having had to deal with the noble Lord on occasions, I am sympathetic to the view which has been expressed. I fully accept that the intention is to make the Minister concerned personally involved in the matter and, although I intend to withdraw the amendment, I hope the Government will reflect on the problem of a lay Minister having to defend a view of the law in the face of the difficulties to which I referred. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 102 to 103 not moved.]

Clause 19 agreed to.

[Amendment No. 104 not moved.]

Clause 20 [Orders under this Act]:

Lord Williams of Mostyn: moved Amendments Nos. 105 to 108:

Page 11, line 3, at end insert— ("(1A) The power to make rules (other than rules of court) under section 2(3) or 7(8) is exercisable by statutory instrument.").

Page 11, line 4, leave out ("such") and insert ("statutory").

Page 11, line 4, leave out (" 16") and insert (" 16(7)").

Page 11, line 8, leave out (" 18(5)") and insert (" 18(6), or to which subsection (1A) applies,").

The noble Lord said: I have already spoken to these Amendments. I beg to move Amendments Nos. 105 to 108 en bloc.

On Question, amendments agreed to.

Clause 20, as amended, agreed to.

Clause 21 [Interpretation, etc.]:

[Amendment No. 109 not moved.]

Lord Williams of Mostyn: moved Amendment No. 110: Page 12, line 25, leave out ("section 21(1) of").

The noble Lord said: This is another tidying up amendment, if I can describe it in that way. This amendment widens the amendment to the Northern Ireland Constitution Act 1973 made by Clause 21(5). This is needed because there are provisions of the Bill other than the definition of subordinate legislation in Clause 21(1)(to which Clause 21(5) currently refers), for example Clause 3, which a Northern Ireland court might regard as affecting the status of Acts of the Northern Ireland Assembly. I beg to move.

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 [Short title, commencement, application and extent]:

Lord Monson: moved Amendment No. 111: Page 12, line 26, after ("the") insert ("Additional"). The noble Lord said: I have drawn the short straw in that I have to move this important amendment at the end of a long day when the Committee is understandably hungry and possibly wants to go home too. I shall try to be brief. The Short Title of the Bill at the moment is the Human Rights Bill. Whether by accident or by design—I am sure it is the former—this is a propagandistic title. Faced with this title, the sort of voter who reads only the tabloids and watches only commercial television could be forgiven for being persuaded that prior to 1st May 1997 the United Kingdom was in a state of semi-tyranny compared with the liberal paradise to be found on the Continent of Europe. The Members of this Chamber, Members of another place, those who have a university education and broadsheet readers in general are well aware that this is the reverse of the truth and that Britain, with its Magna Carta, jury system, equality before the law, its House of Commons with power to refuse to vote funds to the Monarch, the Glorious Revolution and so on, has always been—despite many imperfections—far freer than almost any continental nation. Most of those people know that the Soviet Union had rights written in black and white into its constitution right through the Lenin terror, the Stalin terror and the enduring Gulags and that it is the underlying attitudes and instincts of a nation's people that count just as much as what is written on paper. They know too that most people from third countries would far rather find themselves in the hands of the British police than the French police, whatever the theoretical safeguards in France. Moreover, the title as it stands may give the public the impression that the rights conferred by this Bill are so comprehensive that nothing more needs to be done, ever. Of course we know better. For example, the European Convention on Human Rights is weak on property rights, as the European Court's judgments on the confiscatory aspects of the 1977 Aircraft and Shipbuilding Industries Act demonstrate. This is not surprising as the convention was formulated in the late 1940s when western Europe was going through a decidedly socialist phase. I contend that we need a more honest and accurate title. I suggest prefacing the word "human" by the word "additional" for two reasons. First of all the Bill introduces a few totally new rights, but secondly, and perhaps more importantly, rights that cannot be enforced or which could be enforced only with great difficulty are only theoretical rather than actual rights. Theoretical rights that become actual ones as a result of the provisions of this Bill are effectively therefore additional rights. However, I am not wedded to the word "additional". Some Members of the Committee might prefer the word "enhanced" or something else altogether. I await with interest the comments of the Committee. I beg to move.

Earl Russell

I assure the noble Lord, Lord Monson, that it will be a little while before this country is a liberal paradise, but we are working on it. I understand the point that he makes but unfortunately parliamentary precedent is against him. Since I have been in this Chamber we have had more education Bills and more local government Bills than I can count, but none of them has ever been described as the additional education Bill or the additional local government Bill. I think there is a good case for following normal parliamentary practice.

Viscount Colville of Culross

If it is going to be anything it ought to be the some additional human rights Bill because one of the things it does not do is to incorporate the provisions of the international covenant in its entirety. Although this country has ratified it, we have not adopted the first optional protocol and therefore the rights of the citizens are confined to those matters that are in the European as opposed to the international convention. There are some important matters in the international convention which are not reflected in the European one.

Lord Williams of Mostyn

What the Bill is actually doing, surprisingly, is to be found, amazingly, in the Long Title which is to give, further effect in domestic law to rights and freedoms", which the United Kingdom is already obliged to secure to people in its jurisdiction by dint of its ratification of the convention. The noble Lord, Lord Monson, said that if we call it a Human Rights Bill that is propagandist. May I suggest that if it is an additional human rights Bill, that would he additionally propagandist?

Lord Monson

I thought there might be some comments from the Conservative Benches but they have decided to opt out, as so often happens these days. The noble Earl, Lord Russell, was absolutely right: parliamentary precedent dictates excessively short titles and therefore very often excessively confusing titles. It is a pity that we cannot break the precedent for once. Perhaps we could start a new trend to have titles which are more explanatory of the legislation which they embrace. However, realistically, this is probably not the moment to do this. I also take the point made by the noble Viscount, Lord Colville, which I think is a perfectly valid one.

I, of course, have no intention whatsoever of trying to press this amendment at this time of night. Nevertheless I invite the Committee to ponder the possibility of altering the title. I shall not proceed on my own but if anyone else cares to join me at the next stage I shall be delighted to have their support. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Schedule 1 [The Articles]:

[Amendments Nos. 112 to 114 not moved.]

Schedule 1 agreed to.

[Amendment No. 115 not moved.]

In the Title:

[Amendment No. 116 not moved.]

Remaining schedule agreed to.

House resumed: Bill reported with amendments.