Previous Section Back to Table of Contents Lords Hansard Home Page

The Deputy Chairman (Lord Brougham and Vaux): If Amendment No. 67B is agreed to, I cannot call Amendments Nos. 68 to 77 inclusive.

Lord Goodhart: In the course of the debates on the Human Rights Bill--this is the third day of debate on the Committee stage--many important amendments have been discussed and ultimately withdrawn. Examples of those are the debates on standing and on the Human Rights Commission. But there can be no question but that the debate which arises on Amendment No. 67B and Clauses 11 and 12 as a whole, is the most important debate that will take place during the Committee stage. As the noble Lord, Lord Campbell of Alloway, made clear, it is a direct frontal attack on the fast-track procedure.

We on these Benches strongly support the fast-track procedure. We do not do so without criticisms. For example, we tabled Amendment No. 81 in the name of my noble friend Lady Williams of Crosby. We believe that the proposals that appear in paragraph 24 of the sixth report of the Select Committee on Delegated Powers and Deregulation which recommend that there should be some form of procedure which would enable a remedial order to be amended during the course of its passage through Parliament, deserve consideration.

Some of us would have preferred a stronger provision than the fast-track procedure. It would have included a power to invalidate previous statutes on the grounds of incompatibility and to declare current and subsequent statutes to be invalid on grounds of incompatibility in the absence of some such provision as the "notwithstanding" clause that exists under Canadian legislation. However, we on these Benches accept that that is perhaps a bridge too far. We accept the proposal

27 Nov 1997 : Column 1112

in the Bill for fast-track legislation as an ingenious compromise between what may be described as the maximalists and the minimalists.

The situation which will arise when there is a declaration of incompatibility is this: the Government will be under pressure--indeed, they are effectively bound--to take action under the European Convention of Human Rights unless they choose deliberately not to take action in order to provoke a challenge, as they are entitled to do, requiring the applicant to go from the courts in the United Kingdom to Strasbourg. In the absence of that action the situation will be that a declaration of incompatibility has been made by the courts. The Government will have accepted that there is an incompatibility. What then are they to do?

The provision will be doomed. Everyone will know that it is doomed. However, if the Government have to introduce primary legislation, that legislation will have to take its place in the queue. We know that there is frequently a considerable time lag in bringing new legislation before Parliament. Therefore, it may take a considerable time--it may take months--to bring primary legislation before Parliament. That primary legislation may be the subject of debate as it may involve a controversial issue. In those circumstances, it seems reasonable to us that there should be a speedy procedure to bring a remedial order before Parliament and change the law to the extent--and no further--that is required to correct the incompatibility. In those cases we believe that a fast-track procedure is wholly appropriate. We therefore oppose Amendment No. 67B and we shall support the proposal that Clauses 11 and 12 stand part of the Bill.

5 p.m.

Earl Russell: I agree with everything that my noble friend Lord Goodhart has just said. I merely wish to add a few more points. The Committee knows that I am no friend to Henry VIII powers. The noble Lord, Lord Campbell of Alloway, was right to raise a debate on this issue. I think the Committee would expect me in the case of any normal Bill to be supporting such an amendment. But this is not a normal Bill. Indeed, I can think of only two Bills that have reached our statute book with which I would compare it. The purpose of the Bill is to receive another system of law. I shall not say "a foreign system of law", because I will not describe anything largely drafted by the noble Lord, Lord Renton, as a foreign system. However, it is a system of law which, though we have been bound by it already for nearly 40 years, has not yet been received into our domestic law.

The only two parallels that come to mind of Acts of Parliament which received another system of law, both of which I mentioned at Second Reading, are the Act of 1554 restoring the jurisdiction of the Papacy and the European Communities Act 1972. In the 1554 Act, the different systems of law were applied in different courts, so there was no need for any such procedure. In the 1972 Act, the noble Lord, Lord Rippon of Hexham, who, like me, was no friend to Henry VIII powers in any of their ordinary forms, chose to use a Henry VIII procedure even more sweeping than the one we have

27 Nov 1997 : Column 1113

here. That, I am sure the Committee will realise, is something the noble Lord, Lord Rippon of Hexham, would not have done lightly.

Here we have a very sensible attempt to ensure parliamentary scrutiny together with an immediate reception. It is possible that by adoption of some of the suggestions advanced by the delegated powers scrutiny committee the noble and learned Lord the Lord Chancellor could even further improve what is already an extremely good idea. That would make the case which I have already argued even easier to argue in future and would be a great asset. But since the intention of Parliament is to receive another system of law and to ensure that that system of law passes into our domestic law, I do not see how that can effectively happen without some kind of fast-track procedure such as is laid out in the Bill.

I would not say that the Government have got it absolutely perfect, because practically nothing ever is, but I think they have done very nearly as well as could reasonably be expected. I congratulate them, and like my noble friend, I shall support the clause in the form in which it at present stands.

Lord Henley: Perhaps I may follow the noble Earl, Lord Russell. I seem to remember that I have been on the receiving end of his tongue on a number of occasions when in the past I have brought before the House Bills that contained the very Henry VIII clauses to which, as he says, he normally and so often objects. It is undoubtedly true that this is, as the report of the delegated powers scrutiny committee makes clear, a Henry VIII power of the utmost importance. It is therefore right that we should consider very carefully whether it is right and proper that there should be such a procedure in the Bill.

My noble friend Lord Campbell has put forward the case--it is one which we on these Benches support--that on this occasion such a power is not appropriate. It is proper that Parliament should be entitled to examine the issues properly by means of primary legislation. I remind those who, like the noble Lord, Lord Goodhart, say that that could lead to considerable delay that it is possible to get legislation through both Houses of Parliament very quickly where there is a will. In the very rare cases, as the noble and learned Lord the Lord Chancellor put it, where there was a declaration of incompatibility, I am sure that there would be the will to achieve that legislation and to get it through as quickly as possible.

I appreciate that the delegated powers scrutiny committee does not go so far as saying that it would be inappropriate to have secondary legislation to achieve that. However, it went on to suggest that if there were to be secondary legislation as a means of achieving the fast-track procedure the House might wish to consider whether there is a case for developing a new procedure to scrutinise such orders, modelled on that for the second stage of parliamentary scrutiny of deregulation orders. I should like to come back to that point when we deal later with the group of amendments to which I have my name. However, before we get to that, the Committee should consider carefully whether secondary

27 Nov 1997 : Column 1114

legislation should be used at all and whether we should not, as my noble friend Lord Campbell put it, consider the case for proceeding by means of primary legislation.

As I said earlier, I believe there is a case for using primary legislation. Primary legislation can be made to operate quickly and without delay should all the parties--I am sure all the parties would be of this view--so wish it. We have all seen primary legislation proceed quickly through both Houses. There have been occasions when legislation has proceeded through both Houses in less than 24 hours but has still been considered and has still been amendable in a way that the procedure recommended by the Government at the moment is not. For those reasons, I support my noble friend.

Baroness Carnegy of Lour: I was not able to speak on Second Reading and so was not able to make this point. I would have done it then if I had been able to do so. This is an enormously important issue in that it involves without question a diminishing of the role of Parliament. I am interested that we have not heard anything so far from anyone sitting on the Benches behind the Government. I am surprised to hear the Liberal Democrats say that they are so keen to get the incorporation of the convention into our law that they do not mind if ordinary people are not made aware of what is going on, which is what they are actually saying when one thinks about it.

The primary legislation that may be changed has gone through all its stages in both Houses. If it is one of the controversial issues which the noble Lord, Lord Goodhart, said it might be, the public have probably been made very aware of what the law is. We all know that secondary legislation is whipped through without a great deal of public attention. We can discuss it, but we either accept it or not. What would happen if one House accepted it and the other did not in this case? I am not sure. I should know what the procedure would be, but there would be problems. The public will not know what is going on.

The European Convention on Human rights is framed in a broad way to suit the member states for whom it was originally designed. It is much more similar to the legislation of some other member states of the European Union, for example, than it is to our legislation. But in order to incorporate it into our law we shall have to make detailed changes because that is the way our law works. That will be done by the fast-track procedure, which is the Henry VIII way.

That worries me very much as an individual. I hope that when the noble and learned Lord replies he will be able to justify this matter in simple terms to me because long words will not make the matter clearer. It concerns what ordinary people are going to know about the changes that are made in their name by Parliament in response to a broadly framed convention, through making detailed changes to our law which will affect everyone. I look forward very much to hearing the Government's reply.

Next Section Back to Table of Contents Lords Hansard Home Page