HL Deb 04 July 2001 vol 626 cc811-4

2.50 p.m.

Lord Lester of Herne Hill

asked Her Majesty's Government:

Whether they will undertake not to proceed with any legislation requiring Ministers to make statements of compatibility with the European Convention on Human Rights unless and until the Joint Committee on Human Rights has been appointed to scrutinise such statements for both Houses of Parliament.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, if the Joint Committee on Human Rights were appointed and fully operational, scrutiny by it of ministerial statements that legislation is ECHR compatible would not be a precondition of that legislation proceeding through Parliament. The committee has no power to restrict the progress of legislation. Therefore, we will not give the undertaking sought. The Session begins when Her Majesty opens it, not from the date that the Joint Committee is appointed.

However, I fully share the noble Lord's wish that the Joint Committee be appointed as soon as possible. The House agreed yesterday to a Motion appointing six of your Lordships, including the noble Lord, Lord Lester, to be members. My right honourable friend the President of the Council informed the other place on 21st June that it was his objective to get Select Committees up and running before the House breaks for the Summer Recess. He has confirmed to me that that remains his objective.

Lord Lester of Herne Hill

My Lords, I declare an interest as a member of the old committee and a proposed member of the new committee. I thank the noble and learned Lord the Lord Chancellor for that helpful and encouraging Answer. I did not intend my Question to fetter the legislative process and I understand the noble and learned Lord's reply, but I wonder whether he agrees that, whether the committee is set up sooner or later, the vital thing is that there should be effective scrutiny of compatibility statements by both Houses of Parliament and by the committee, as their watchdog. Does he agree that that requires not only the right machinery in place, but also reasons to be given at an early stage to the committee and to both Houses so that they are able effectively to understand the Government's reasons for considering that their legislation is or is not compatible with the Human Rights Act 1998 and the convention rights?

The Lord Chancellor

My Lords, those are two questions in one. First, I decline to undertake that the House will not proceed with any Bills while there is no Joint Committee on Human Rights which can comment on their human rights implications. My reason is that that would be disproportionate. Although I do not in any way diminish the value of the committee, which I want to see up and running as soon as possible, during the Committee stage of any Bill this House is well able to scrutinise the human rights implications and to invite Ministers to explain their reasons for maintaining that particular provisions are compatible. The House did so with great vigour, for example, during the passage of the Immigration and Asylum Act 1999 and the Regulation of Investigatory Powers Act 2000. The Joint Committee, although admirable, does not supplant the ordinary parliamentary processes of scrutiny.

However, in relation to the noble Lord's second question, I appreciate that he believes that a way forward may be for an early statement of the issues considered by a Minister to be made before he arrives at a positive decision to make a statement of compatibility. Conceivably that could be done in the Explanatory Notes. I shall certainly consider that and perhaps consult with my colleagues on it if the noble Lord makes detailed representations to me.

Lord Campbell of Alloway

My Lords, is the Lord Chancellor aware that the undertaking sought in this matter stems from the refusal of the noble Lord, Lord Bassam of Brighton, to give reasons in the exercise of his ministerial discretion for a decision taken by government? That, if I may say so respectfully, is quite contrary to the suggestion of the noble and learned Lord that there is ample scope for reasoned debate in Committee. Does the noble and learned Lord agree that, save on grounds of national security, such ministerial discretion should not be exercised and that reasons for the decisions of government should always be given, in Committee and otherwise?

The Lord Chancellor

My Lords, I gave some encouragement in my answer to the noble Lord's supplementary question. However, Ministers do experience a difficulty—that of the well recognised and established convention adhered to by successive governments that legal advice to government remains confidential. There is a tension between that and the giving of reasons. However, I have indicated to the noble Lord that I shall consider any detailed representations that he makes on how, in his view, consistent with maintaining the convention, which must not be breached, that legal advice must not be revealed, none the less reasons could be given for a decision to make a positive statement of compatibility which, if made, would assist both the Joint Committee and this House at Committee stage.

Lord Davies of Coity

My Lords, in view of the ever-expanding importance of human rights issues, does my noble and learned friend now believe that the Government should seriously consider setting up a human rights commission?

The Lord Chancellor

My Lords, we already have the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission, to name but three. The Government do not rule out a human rights commission as well, but we must not die from a surfeit of commissions. There may be a case for a single, overarching human rights commission to cover all those areas, perhaps with a divisional structure, and I should welcome representations on that. I gather also that, in its previous incarnation, the Joint Committee sent out a consultation document requesting views on what form a human rights commission might take. We shall consider carefully any recommendations which the new Joint Committee may in due course make.

Lord Goodhart

My Lords, does the Lord Chancellor recall the undertaking given by the present Leader of the House in one of his previous incarnations that, when introducing draft secondary legislation under the affirmative procedure, Ministers would make a statement of compatibility? It is my experience that that statement frequently is not made although in at least one case it was clearly called for. Now that the noble and learned Lord is in charge of human rights, will he ensure that all Ministers are aware of and comply with that undertaking?

The Lord Chancellor

My Lords, that is certainly a matter to which I shall attend.

Baroness Carnegy of Lour

My Lords, if a Minister certifies that a Bill, when it is published, is compatible with the convention but subsequently the new committee disagrees with that, can the noble and learned Lord tell the House whether, in the debate that ensues at Committee stage, the Government will have to explain their thinking—not the source of their legal advice, but their thinking—and their reasoning for declaring the Bill to be compatible? Surely, once that debate ensues, they cannot hide behind the convention in the way that the noble Lord suggested.

The Lord Chancellor

My Lords, first, in my experience, in the course of the Committee stage of Bills, Ministers already explain their thinking. When amendments are put down, the purpose of which is to impugn the existing provisions on the grounds of non-compatibility, Ministers explain why in their view the statement was properly made and why the impugned provision is compatible. I agree, of course, that our thinking would be enhanced if antecedently the Joint Committee had expressed a view on any particular provision. However, I believe that the Joint Committee will have to ration itself; it cannot pronounce on every Bill or it will be in permanent session.