Human Rights Act 1998 (Making of Remedial Orders) Amendment Bill [H.L.] (Hansard, 15 March 2004)

§ Lord Lester of Herne Hill
My Lords, I beg to move that this Bill be now read a second time. Although the Bill has been introduced in my name, it is put forward on behalf of the Joint Committee on Human Rights, of which I am a member. The Committee's recommendations are all-party and beyond party, and they are unanimous. Six of its members are elected Members of the other place.
The Human Rights Act empowers Ministers, with parliamentary approval, to make statutory instruments amending legislation, including primary legislation, either where the legislation has been declared by one of the higher courts in the United Kingdom to be incompatible with a right protected by the European Convention on Human Rights, or where it appears to a Minister or to Her Majesty in Council to be incompatible with such a convention right, having regard to a finding of the European Court of Human Rights in proceedings against the UK. This is a beneficial power since it enables the executive, with the concurrence of the legislature, to remove a mismatch between UK statute law and convention rights.
The Joint Committee is responsible for reporting to Parliament on the operation of the remedial order procedure, which can be invoked only if certain other conditions described in the Explanatory Notes are satisfied. The Explanatory Notes have been prepared on the Joint Committee's behalf by our legal adviser, the admirable Professor David Feldman. There are different provisions for urgent and for non-urgent cases.
The super-affirmative procedure is a good one but, in our seventh report of 2001–02, Making of Remedial Orders, House of Lords Paper 58 of 17 December 2001, we drew the attention of both Houses to two defects in the prescribed procedure for non-urgent cases.
In the first place, the statutory period of 60 days during which the proposal for the order must lie before Parliament is calculated without taking account of any period during which Parliament is prorogued or 46 dissolved, or any period in which both Houses—I emphasise the word "both"—are adjourned for more than four days. The way in which paragraph 6(b) of Schedule 2 is drafted means that the statutory period runs when either House is adjourned for more than four days.
We recommend that the Human Rights Act should be amended by replacing the words "both Houses are" with the words "either House is". That would mean that the clock would not tick when either House is adjourned for more than four days—for example, when this House has Judicial Sittings in October but the other place is not sitting. This would be even more important were the other place to start sitting in September and this House not to follow suit. In other words, this amendment would increase the time available for consideration of any proposal that precedes the laying of a draft remedial order.
The second matter, the only other matter, is that the 60-day period before either House can consider a resolution to approve a draft remedial order seems to us to be longer than is necessary given that there will already have been a previous period of 60 days for the making of representations. It is anomalous to impose a specially long period of inaction in relation to draft remedial orders, particularly as they have the beneficent purpose of securing, rather than interfering with, the convention rights of the individual.
The second amendment—to paragraph 2(a) of Schedule 2— would allow a draft remedial order to be approved at any time after being laid before Parliament. As we explain, that would bring the procedure into harmony with the procedure for the approval of other types of draft order. But because it affects parliamentary scrutiny, it will need to be carefully considered in Committee.
The committee's recommendations were endorsed by the House of Commons Procedure Committee in its first report of 2001–02, Making Remedial Orders: Recommendations by the Joint Committee on Human Rights, House of Commons Paper 626. The Joint Committee on Human Rights considers that the changes would strike a better balance between the need to change the law to remove an incompatibility reasonably expeditiously and the need for adequate parliamentary scrutiny.
We hope that the Bill will be regarded as non-controversial and that it will proceed through both Houses on oiled castors. I also hope that I have broken some kind of record for brevity in introducing a Bill. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)

§ Lord Henley
My Lords, in my very brief and undistinguished career at the Bar, I think the first words I ever uttered in court were to seek "no order as to costs". I hope I can be almost as brief in dealing with the Bill of the noble Lord, Lord Lester, and stick to those sentiments in offering neither support for nor opposition to it.
47 As the noble Lord, Lord Lester, will be aware in recalling the passage of the Human Rights Act 1998, I was never a particular fan of Section 10, which the Bill seeks to amend. I was probably one of those on this side of the House who felt, in the words of the noble Lord on that occasion, that it created, a vast Henry VIII clause with jackboots added on".—[Official Report, 29/1/98; col. 403.] Nevertheless, we now have it, and we now have a recommendation from the Joint Committee on Human Rights, of which, as the noble Lord, Lord Lester, reminds us, he is a member. So I am perfectly happy not to oppose the passage of the Bill and to accept the committee's recommendations that some amendment to the Human Rights Act should be made.
In passing, let me say that just as I am happy to accept the recommendations of that distinguished Joint Committee, I hope that the noble Lord, Lord Lester, might consider—and perhaps this might also be true of the Government—accepting the advice of the Constitutional Affairs Committee, which reported in another place, particularly its advice that the Constitutional Reform Bill could be considered in draft before coming before this House.

§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)
My Lords, I will not rise to the last bait—I think we gave that issue good measure last week.
I note the challenge from both noble Lords to be brief. I should like to put on record the Government's appreciation of the work of the Joint Committee in general and of its seventh report in particular, with which the Bill deals. I will not speak to those two measures; the noble Lord, Lord Lester, has already done so, admirably and clearly.
The Government can see the case for both changes. The then Minister for Human Rights at my department, my honourable friend Yvette Cooper, wrote to the chair of the Joint Committee on 8 July 2002 and indicated that the Government would not oppose a Bill to implement them should the Joint Committee's recommendations find favour with a private Member of either House. I am happy to stand by that position today.
This is subject to one reservation, which I have signalled to the noble Lord, Lord Lester. The second 60-day limit and other detailed rules in Schedule 2 to the Act reflect lively discussion in this House and in the other place about what were then described as a new raft of Henry VIII powers. The rules in Schedule 2 to the Human Rights Act are there as a safeguard for the legislature as a whole.
In the Government's view, this matter should be entirely one for the House to determine. The Government are, as I have signalled, neutral but not hostile. We merely wish to ensure that any decision is made in an informed way by the House, looking at the possible arguments on each side of the issue. I should therefore greatly welcome the tabling of a probing 48 amendment to the Bill in Committee so as to probe the opinion of the House on the merits of Clause 1(1). In the event of a favourable result, both Houses could, I believe, give a fair wind to the Bill's passage, as the noble Lord, Lord Lester, and his colleagues desire.

§ Lord Lester of Herne Hill
My Lords, I am extremely grateful to both noble Lords who have spoken, especially to the noble Lord, Lord Henley, for his handsomely generous speech, given that he said he was not a great admirer of the handiwork of the Government and Parliament in 1998 in introducing and enacting the human rights legislation.
I hope it is clear that one of the advantages of this procedure is that it enables the Government and Parliament to put right a wrong done to an individual relatively speedily but with proper parliamentary scrutiny so as to avoid the long and costly journey to the European Court of Human Rights at Strasbourg, which is choking with a backlog of 80,000 cases. It is because of the interests of the individual, balanced with the need for parliamentary scrutiny, that this procedure is rather important.
The noble Lord, Lord Henley, asks me to return the compliment by expressing my view about the Constitutional Reform Bill. All things being equal, I strongly favour pre-legislative scrutiny of all Bills, including important constitutional Bills. I, for my part, wish that the Constitutional Reform Bill could have been introduced in draft some considerable time ago. What worries me now is that we may throw out the baby with the bathwater unless we proceed with reasonable speed. We will have no proper procedure in place for appointing the judges of England and Wales unless we are able to make proper progress.
Having said that, I entirely sympathise with the noble Lord. There is nothing between us—I hope he understands that I am a strong supporter of effective parliamentary scrutiny in this case as well as in any other.
I am sure that the committee will be very grateful for what the Minister has said. He is quite right that there needs to be full scrutiny of the second change in Committee in order to ensure that the House is satisfied that there really will be sufficient parliamentary scrutiny of this important matter. We do not want a vast Henry VIII clause, whether or not with boots on, which can circumvent effective parliamentary scrutiny. That can be done in Committee, with an appropriate probing amendment, and I am sure that that will happen.

§ Lord Henley
My Lords, before the noble Lord sits down, it might assist us if he expanded somewhat on what he would include in Committee. Knowing this was the noble Lord's Bill, we have got through it somewhat quicker than we normally expect to get through his Bills. As the Government Chief Whip will recognise, a number of noble Lords who are down to speak in the coming debate have not yet made it into the Chamber. I know that the noble and learned Lord 49 the Lord Chancellor had some problems getting in. If the noble Lord. Lord Lester, wishes to expand a little, I am sure the House would not object.

§ Lord Lester of Herne Hill
My Lords, I am too young in this House to know whether there is not some more elegant way of dealing with the matter than the House having to be wearied by me, since I will be making a speech in the next debate. I do not know whether it is possible for a pause that refreshes to take place. Otherwise, I am perfectly happy to blather on indefinitely, if that is the wish of the House. However, I should have thought there must be some better way of ordering our arrangements in 2004. Unless someone can think of anything else I can say, I propose to sit down.
On Question, Bill read a second time, and committed to a Committee of the Whole House.