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Lord Campbell of Alloway: I should like to ask, if the court were minded to make the declaration and then somebody sought leave to appeal, what would happen? A court might say: "In those circumstances I shall stay the making of a declaration. I shall not make a

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declaration. I shall further this matter in the Court of Appeal. What happens in practice if there is no application for leave to appeal to a High Court judge and subsequently an application is made followed by an appeal to the Court of Appeal? What happens then to the position of making out the declaration? How will it work out?

9.45 p.m.

The Lord Chancellor: A court strives, so far as possible, to construe a statute to be compatible. It fails. Therefore it may--not must--make a declaration of incompatibility. If it makes a declaration of incompatibility, nothing at all flows. The statute remains in full force and effect and that is so whether or not there is another route of appeal. However, the declaration of incompatibility puts some pressure on Parliament to make a remedial order.

Lord Henley: The first part of the noble and learned Lord's response was quite extraordinary. He asked why, when we were opposed to the Bill in principle, I was tabling probing amendments. I am sure that the noble and learned Lord will understand that one of our duties as the Opposition, which I dare say even the noble Lord, Lord Lester of Herne Hill, understands, is that we must table probing amendments. We must seek to find out what the Government intend with their Bill.

That becomes more important when, for example, the party of the noble Lord, Lord Lester of Herne Hill, and the Government are at one over the Bill and seek total agreement. The greater the agreement, the more need there is to probe the arguments and ensure that they are tested properly in Committee, at Report stage and at Third Reading. That is why I tabled the amendment and that is why we tabled many more amendments, some of which the noble and learned Lord will be the first to point out contradict each other. I have no qualms about that. The vital job of opposition--one in which I invite the noble Lord, Lord Lester, to join--is to table amendments to probe the intentions behind the Bill.

Lord Lester of Herne Hill: I am grateful to the noble Lord for giving way. He does not need to give lessons to me in the art of constructive opposition. I entirely agree that it is the function of the Opposition to test legislation and probe. However, does not the noble Lord agree that when one does that, one must do it based upon some notion of principle of one's own, some notion of policy of one's own, and some argument as to the mischief that one is seeking to probe?

In this instance we have the noble and learned Lord the Lord Chancellor explaining what is obvious as to the discretionary nature of declaratory relief and the need to give the courts a discretionary power. Having heard that reply to the question, which is plain and obvious, I do not understand why the constructive Opposition do not then express gratitude for the explanation and immediately withdraw the amendment.

Lord Henley: I was dealing with the first point made by the noble and learned Lord the Lord Chancellor when

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he asked why I tabled the amendment. I appreciate the noble Lord, Lord Lester, has a great deal more experience of opposition than I do; we are only just beginning to learn the art and I hope we shall not have to learn for too long.

I felt that it was important to address that point. I resent being told that there is no point in my tabling the amendment. It is thoroughly honourable to table an amendment of this sort and to ask what the Government are about. We heard an explanation from the noble and learned Lord and that explanation bears some scrutiny. The noble Lord, Lord Lester, will be pleased to hear that I shall look at the explanation with considerable--

The Lord Chancellor: Scepticism!

Lord Henley: The noble and learned Lord says "scepticism". I hope that I can look at it with considerable scepticism; one of the jobs of the Opposition is to look at amendments with scepticism. The noble and learned Lord would be worried if I did not look at it with considerable scepticism. I shall look at it in some detail and, because he advises me, with a degree of scepticism, and I shall look at the examples he gave. Those examples were the first things I wrote down. I wanted to know what examples he could give me. He gave me some examples. I give a guarantee to the noble and learned Lord that I shall look at those examples. I shall possibly come back to this at a later stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 21 to 24 not moved.]

Lord Kingsland moved Amendment No. 25:

Page 3, leave out lines 10 to 14.

The noble Lord said: Amendment No. 25 is tabled in the spirit of a probing amendment. However, the Committee may or may not be interested to know that my thinking on this matter has now matured somewhat and it is reflected currently in Amendment No. 66, which is somewhat in advance of our proceedings tonight because it relates to Clause 10. I believe it will help if I explain the thinking behind the two amendments to enable the Lord Chancellor to respond appropriately.

We have identified a problem. It may be an imaginary one because the noble and learned Lord may either have dealt with it in another part of the Bill or have some other means of dealing with it. Let us suppose that a judge of the High Court makes a declaration of incompatibility and as a consequence of that declaration Parliament initiates the fast track procedure. Meanwhile, the losing litigant in the High Court appeals to the Court of Appeal. Just as the responsible Minister has tabled the relevant Order in Council, the Court of Appeal reverses the decision of the High Court--in other words, it decides that there is no incompatibility whatever.

That is a difficult situation for Parliament to deal with. How does it deal with it? Does it cease the order procedure; does it wait on the prospect of a further appeal to the House of Lords; or, if it has passed the

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order, does it then immediately proceed to reverse it as a result of the decision of the appeal court? That is the problem. I have sought to deal with it in Amendment No. 66 by suggesting that until the legal process is exhausted the process in Parliament should not begin.

I shall quite understand if the noble and learned Lord the Lord Chancellor says that the problem is resolved elsewhere in the Bill or in some other way. But we thought it worth tabling a probing amendment. I beg to move.

The Lord Chancellor: The noble Lord, Lord Kingsland, tells me that this is a probing amendment. I, of course, accept that. It is also a very positive amendment because what it proposes is to reserve to the House of Lords and the Judicial Committee of the Privy Council the power to make a declaration of incompatibility. It would not allow a declaration to be made by the High Court or Court of Appeal or the equivalent bodies specified in Clause 4(3). The noble Lord envisaged a state of affairs where a declaration of incompatibility is made--let us say, in the High Court--but then the case is moving on appeal to the higher courts. In all probability, from a practical point of view, government and parliament would not do anything in a highly contentious case if it was going through the appellate process; that is, they would not move to make a remedial order. That would be the practicality of it. But Parliament at any time can pre-empt litigation and pass amending legislation whether or not declarations of incompatibility have been sought.

Treating the amendment seriously, it would have one of two possible results, both undesirable. One would be to reduce significantly the number of occasions on which a declaration of incompatibility could be made because only a small proportion of cases are heard by the High Court and the Court of Appeal and then go on to the House of Lords or the Judicial Committee of the Privy Council. For example, a declaration would not be available in the course of proceedings in the High Court for judicial review or in the course of an appeal to the Court of Appeal (Criminal Division) against a Crown Court conviction. That would seriously reduce the usefulness of the provision in Clause 4.

The other possible result would be an inevitable increase in the number of applications for leave to appeal to the House of Lords simply because that would be the only place where a declaration of incompatibility could be made. That would overload the list of the House of Lords and obviously we want to avoid that. In some cases it may well be obvious, once the High Court has given a reasoned judgment, that a provision in legislation is incompatible with the convention rights. No one in their right mind would want to go to appeal, but the amendment would require individuals to have to go all the way to the House of Lords to obtain a declaration. So these amendments seem to me to promote unnecessary litigation.

In any event, we do not have any desire to restrict the power to make a declaration in the way that this amendment suggests. The High Court, the Court of Appeal and equivalent courts, are served by senior judges who are well equipped to resolve difficult points of law.

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Very often the resolution of such matters begins and ends with them. For example, in England the judges who deal with judicial review are all permanent High Court judges drawn from the Crown Office list. We have no doubt whatsoever that they are more than competent to consider and to make declarations about the incompatibility of domestic legislation with the convention rights.

I appreciate that it is the function of opposition to make probing amendments, but it is a good Bill unless one is opposed to it in principle. One must really avoid giving the impression of looking for things to complain about.

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