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Lord Williams of Mostyn: I am most grateful to the noble Lord, Lord Coleraine, for his careful exposition of what lay behind the amendment. However, I must dissent from his proposition that there has not been consultation on this Bill. The noble and learned Lord the Lord Chancellor and my right honourable friend the Home Secretary indicated quite plainly that their doors were always open throughout the summer. Having been involved on various occasions, I assure the Committee that there was consultation with regard to anyone who wished to put forward a view, whether orally at a meeting, at a further meeting or in protracted correspondence.

On the substance of the amendment I quite understand the purpose, which is to restrict Clause 10(1)(b) to findings of the European Court of Human Rights in cases involving the United Kingdom. It would also make it clear that the remedial order power could not be used in respect of findings pre-dating the coming into force of Clause 10. I shall address those points separately.

On the first point it is conceivable that Parliament might want to amend United Kingdom legislation following a court ruling in a case which did not involve the United Kingdom. For example, there might be a finding in a case involving the Republic of Ireland

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where the Irish legislation was in similar terms to ours and it appeared that our legislation might be incompatible with convention obligations. Apart from such a case, we find it difficult to envisage a situation in which a Minister might consider that a Strasbourg judgment in a case against another state--not the United Kingdom--made it appropriate for him to seek to use the remedial order procedure to amend United Kingdom legislation. I am therefore prepared to take this point away--as has been suggested by the noble and learned Lord, Lord Mackay of Drumadoon--to consider whether we ought to put it beyond doubt that the power under Clause 10(1)(b) should relate only to United Kingdom cases. I believe that deals with the first point which was explained so clearly by the noble Lord, Lord Coleraine.

On the second point, we think that it is implicit that the power to make a remedial order does not extend to cases where the Court finding pre-dates the coming into force of Clause 10. Clause 22 makes express provision for the circumstances in which another provision of the Bill--Clause 7(1)(b)--may apply to acts committed before it comes into force, and that implies that, in the absence of express provision to the contrary, the Bill should not have retrospective effect. However, as we said at the outset of our deliberations on this Bill, we are eager to see whether it can be improved consistent with the scheme of the Bill, as the noble and learned Lord the Lord Chancellor said. I am perfectly content to consider before the next stage whether this measure should be made clear on the face of the Bill. I hope the noble Lord will find that response helpful. On the basis of that response, I ask him to withdraw his amendment.

Lord Coleraine: I found what the noble Lord, Lord Williams of Mostyn, said a full response and one that was helpful to the Committee with regard to the points that I raised. I shall read what he has said. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 67:


Page 6, line 15, at end insert--
("( )Within a reasonable time following a declaration of incompatibility under section 4, a Minister of the Crown shall make a statement to Parliament giving reasons as to whether or not he will exercise the power conferred by subsection (2).").

The noble Lord said: I move this amendment in the unavoidable absence of my noble friend Lord Lester of Herne Hill, who very much regrets that he is unable to be here today. This amendment has the relative merit of being more or less self-explanatory. It requires a Minister to make a statement,


    "giving reasons as to whether or not he will exercise the power conferred by subsection (2)",

of Clause 10. Clause 10(2) states,


    "If a Minister of the Crown considers that, in order to remove the incompatibility, it is appropriate to amend the legislation using the power conferred by this subsection, he may by order make such amendments to it as he considers appropriate".

That is the bare bones of the matter, but a Minister should be required, first of all, to consider whether he will exercise that power with reasonable speed. He

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should then proceed to announce that decision, whether favourable or not, and he should give reasons for it, again whether favourable or not. That is more important when his decision is unfavourable.

As it is, in the absence of any provision such as is contained in Amendment No. 67, it appears that there is no time limit on the Minister's obligation to consider that there is no action required on his part. He is not required to announce that he has decided not to take any action. There is no requirement for him to give reasons for not taking action, or indeed for taking action if he decides to do so. The result is that, first of all, there will be a lengthy period of uncertainty for the applicant, who will not know whether the Government will take action under the fast-track procedure or whether it will be necessary for him to take the case to the European Court in Strasbourg in order to obtain a judgment from that court that the United Kingdom Government are in breach of their obligations under the convention.

Secondly, there will be no opportunity for Parliament to be informed of the Minister's decision and there will be no possibility of debating that decision in the absence of any reasons being given, even if it is informed of that decision. In those circumstances, I ask the noble and learned Lord the Lord Chancellor seriously to consider introducing a measure which specifies in more detail the obligations of the Minister in exercising his powers under Clause 10(2). I beg to move.

4.30 p.m.

Earl Russell: At Second Reading the noble and learned Lord the Lord Chancellor said that a declaration of incompatibility would be likely to happen extremely rarely and would be taken with considerable gravity. It is part of that gravity that Parliament, the litigant, the courts and all other interested parties should be entitled to know at the earliest possible moment the response of the Minister concerned to such a declaration: what he is likely to do; whether he is likely to do anything and, if not, why not?

I am sure that with the present noble and learned Lord on the Woolsack there will be no difficulty on this point. But I hope that we are making legislation which may last a century or longer. In those circumstances we cannot predict which Ministers may be in charge of its enforcement and application. There have been cases where responses of Ministers have been remarkably dilatory. A few moments ago--noting the noble Lord, Lord Allen of Abbeydale, in his place--I was reminded of a Motion he carried in this Chamber in 1995. It called for changes to regulations in social work training for probation officers. He carried that Motion in this Chamber by a considerable majority. The Home Secretary received the response from the electorate before the noble Lord, Lord Allen of Abbeydale, received a response from the Home Secretary. I do not think that that gave the noble Lord, Lord Allen of Abbeydale, a great sense that he had been taken with the seriousness that he deserved by the Home Secretary.

It would be easier to engage in an informed discussion about a certificate of incompatibility. Occasionally informed discussion may be needed. If the

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Minister were prepared to kick off that informed discussion by coming to Parliament and saying what he thought about the matter and what he proposed to do about it, it would be in the interests of justice.

Lord Williams of Mostyn: I do not think that there is any fundamental difference between what has been said in support of the amendment and the Government's position. It is a case of how one achieves the desired conclusion.

The noble Earl rightly reminded us that the noble and learned Lord the Lord Chancellor had told noble Lords that we anticipated that the declaration, or the declarator, would be, first, important--that is why we have limited it to the higher courts--and, secondly, very rare. There is sometimes a danger of over-legislation. The Bill is perfectly simple in scheme, and we look at what might happen in practice were there to be a declarator of incompatibility. The Government would need no prompting either from inside or outside Parliament to come to a decision. I do not think that it is factually correct to suggest that there would be no opportunity for questioning or for debate. From my experience at this Dispatch Box, which is quite limited--it feels longer, and there is no remission for good conduct!--I do not find anyone backward in coming forward, as they used to say in the days of my youth, about questioning Ministers.

I do not believe that this is a real mischief which needs to be on the face of the Bill as a matter of legislation. If the Minister is dilatory he can be asked questions either by a Member of Parliament on behalf of an aggrieved victim or potential victim, or by Questions for Written Answer in either House, and by Questions or debates in this House. We have come to this conclusion as a matter of judgment. One does not need to legislate for every conceivable circumstance. We believe that the legitimate pressures outside Parliament and the focused pressures within both Houses of Parliament are sufficient to direct the Minister's attention to the question if he needs any direction.


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