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Lord Burnham: My Lords, before the noble Lord sits down, perhaps I may ask him to add to those measures that he mentioned the Armed Forces Discipline Bill, with the Report stage of which we shall deal next week, as another Bill where it is less than clear whether either the current legislation or the proposed legislation is compatible with the convention or with the Human Rights Act.

Lord Lester of Herne Hill: My Lords, I do so with great pleasure because what I have said is true of every Bill. Every Bill has to have a statement of compatibility. Every Bill should be accompanied by or followed by reasons concerning compatibility. The same applies to the affirmative resolution procedure; and for the negative resolution procedure we need a proper committee system to look at selected delegated legislation, as the committee of the noble Lord, Lord Alexander, has made clear.

8.5 p.m.

Lord Cope of Berkeley: My Lords, like other noble Lords who have spoken, I am grateful to the noble Viscount, Lord Colville of Culross, for tabling this Unstarred Question. He has drawn attention to a most important consequence of the European Convention on Human Rights which seems to have escaped both the Government and Parliament. I understand that it was the 17th century English jurist, Coke, who formulated the legal principle that a man's home is his castle and every man's home is his safest refuge. It is therefore appropriate that this long-established principle of English law should find a place in the human rights convention, which has now been written into our statute law and comes into effect later this year. This nation and this House should be foremost in ensuring that the principle is carried into practice.

However, the noble Viscount has shown us that we have allowed the principle to be eroded. He made the clear distinction between the powers of entry given to the police, Customs and so on, which are necessary for the protection of law and order and which are now formulated in PACE, and the increasing number of powers given to other officials to enter and search premises which are wholly or partly domestic and which do not provide the same safeguards for the citizen. They provide instead for what can be called "fishing expeditions". That is not acceptable under the convention and it should not be acceptable in our country in any case.

That leads me to ask the Minister two questions. First, can he confirm that these powers, as they are now formulated without safeguards, will become illegal under the Human Rights Act when it comes into force later this year? I assume from what has been said, both by the noble Viscount and by the noble Lord, Lord Lester, that the answer to that question is clearly yes, but it would nevertheless be nice to have it

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confirmed by the Minister. Perhaps I may say this to the noble Lord, Lord Lester. I do not think it is sufficient to say that it does not matter whether these powers are excessive because they can be quashed through judicial review. I am sure that the noble Lord is right about that. I am not arguing with him as a lawyer, but I do not think that we should have legislation on the statute book which can mislead both the officials concerned and the public into thinking that the powers are greater than they actually are. Therefore, although the power to quash them is important, it does not finally answer the question.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. I was simply pointing to the existence of a remedy for over-breadth, but I entirely agree that Parliament should not authorise excessive powers without safeguards against abuse. I was simply indicating that there are those safeguards, but it is not good enough to give blank cheques to public officials without the legislation itself containing safeguards.

Lord Cope of Berkeley: I am grateful to the noble Lord.

The second question to which an answer is needed--not necessarily this evening, because it may be detailed--is: which statutory instruments confer powers which do not contain the safeguards? The noble Viscount has drawn our attention to some but has indicated that there are possibly many others. At present, none of us can be sure how many.

If the answer to my first question is that the powers are illegal, it will be essential for the Government, Parliament and others to know which statutory instruments we are talking about. Like my noble friend Lord Marlesford, I do not think that it is good enough to answer, as Ministers have recently done, that the Government have lost count of how many such powers there are and that they do not propose to find out. Apart from anything else, the officials concerned with implementing the various provisions need to be told to stop using them in the way in which they apparently think that they can. It is not good enough for the Government to rely on the belief that the powers may exist but no one will bother with them in the future. We need to know; and it would be helpful to have a list.

Underlying much of all this is the European Communities Act. Many of the offensive powers apparently stem from European Union agreements, sometimes known as directives. It may be that they have been over-zealously implemented here in being written into UK statutory instruments--the process known as "gold-plating"--or it may be that the agreements themselves are defective in the light of the human rights convention. To eliminate the danger for the future, we need to provide both against the terms of the EU agreements themselves and against their over-zealous implementation in the United Kingdom. A certificate of compliance, properly "policed", for all statutory instruments, whatever their parliamentary process, would provide a line of defence against gold-plating. I hope to hear a favourable response on that point from the Minister.

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In addition, the European Union might adopt the practice of the present Government so far as primary legislation is concerned, and indeed affirmative instruments, and make the Commission certify that any agreement at which the Council of Ministers is about to arrive complies with the European Convention on Human Rights. I realise that the convention does not stem from the EU but from the Council of Europe, but all EU members subscribe to it, so presumably all will wish their directives and agreements to comply in future.

I am mainly concerned with the two questions that I have asked: is it certain that these instruments will become illegal; and will the Minister set out, presumably in writing, which statutory instruments confer these offensive powers? I have no doubt that we shall be told by the Minister, correctly, that the noble Viscount has raised an important issue. It has also become clear during this debate that it is one that will not go away.

8.15 p.m.

Lord Bassam of Brighton: My Lords, the noble Viscount, Lord Colville, deserves great credit, and our gratitude, for raising the important subject of preparations for the Human Rights Act. I shall attempt to outline them in general terms, and pick up particular points that have been raised.

Preparing for the Human Rights Act is a major task. It involves a great deal of work. The main burden of that work has to be shared by all government departments. But there can be no doubt that we all have an important part to play in the process. Debates such as this shine a torch on particular aspects of the preparatory work. This debate has been helpful to all concerned. It has also shown the parliamentary system working at its best.

The noble Viscount was right to stress the importance of the Human Rights Act, as have all noble Lords who have spoken. It is a defining event in our constitutional history and development. When the Act comes into force, on 2nd October this year, it will place on all public bodies in this country a new and important statutory duty to act compatibly with convention rights--unless, of course, primary legislation prevents them from so doing. The duty is significant and wide-reaching. The Human Rights Act will also mean that all of our legislation must be interpreted in a way that is compatible with convention rights unless it is impossible to do so.

But the new Act is not simply about compliance by public bodies with the new legal obligation. It is not merely about allowing people to raise convention points in UK courts without having to go to Strasbourg. The Human Rights Act is fundamentally about modernising our society and building a new culture of rights balanced by responsibilities within UK law. Rights and responsibilities go together. They are two sides of the same coin. The new culture that we want to build is one in which the Human Rights Act gives us a shared understanding of what is fundamentally right and wrong, a culture where

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people recognise the duties that citizens owe to each other and the wider community and are willing to fulfil them--and one in which public authorities understand that the Human Rights Act defines what the basic rights are. It will sometimes require us to be robust about an individual's rights if we are to maintain the rights of others. That is the culture that we want to build. That is what the Human Rights Act is all about.

There is no question that preparing for implementation of the Human Rights Act is a major task. It involves all public authorities, central and local government, the courts, the police, the utilities and private bodies in so far as they have to perform public functions. Public authority staff must be trained in an awareness of the convention rights and their new obligations. Public authorities are, as a consequence, reviewing the legislation, rules and procedures for convention points.

I emphasise that we do not expect the statute book to be rewritten overnight on 2nd October 2000. Nor do we pretend that it will be in a state of perfection. We have, after all, been fully signed up to the ECHR for half a century, and ECHR proofing of legislation has been a continuing and deepening process throughout that period. The statutory instruments mentioned by the noble Viscount, Lord Colville, were not prepared without regard to ECHR considerations. Indeed, most were prepared very recently, in the shadow of the Human Rights Act.

But the convention is a living instrument. It changes and evolves over time to reflect the way in which society has changed. That is one of its great strengths. It means that reviewing our legislation and procedures for convention points must be a continuous process. It cannot be a one-off event.

Each government department is responsible for reviewing its own legislation and procedures for compatibility with the convention rights. That is not a task which lends itself to bureaucratic or centralised structures. Each individual department must feel responsibility for assessing its own legislation and "take ownership" of the process. That is an important part of building the new culture about which I spoke earlier. We must mainstream human rights awareness throughout Whitehall and the devolved administrations so that considering human rights implications of a particular procedure or policy initiative is an automatic and instinctive part of the decision-making process. Only then can we hope to develop the new culture that we seek. In our view, individual departments are best placed to decide how to do that. Each department has different requirements and different priority areas, and each must satisfy itself as to the compatibility of its own legislation and procedures and processes.

The noble Viscount, Lord Colville, asks whether we have checked all the statutory instruments issued since May 1997 for compliance with convention rights. The short answer is that we have, or are in the process of doing so, but that the review of a particular statutory instrument or any other piece of legislation is a matter for the relevant department concerned. We have not

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sought to impose on departments a bureaucratic, centralised structure to review individual items of legislation or to maintain long centrally held lists which purport to show when a particular piece of legislation has been given a green light, as it were. Such an approach would go against our efforts to mainstream human rights considerations throughout government. It would also go against the need for continuous review in the light of the "living instrument" nature of the ECHR.

But the centre--in this case the Home Office and the Human Rights Task Force--is monitoring the general state of preparation in all departments. I can assure your Lordships' House that departments are well aware of their new responsibilities under the Human Rights Act and the impact of that Act on their legislation. Departments take very seriously the need to consider existing legislation, primary and secondary, for convention points. They are doing this not just because the Home Office has dictated that they should but because they understand that after 2nd October this year--this is an important point--the courts will be able to strike down secondary legislation that is incompatible with convention rights.

The noble Viscount cited in particular a number of examples of secondary legislation which he believed might raise Article 8 privacy issues. Your Lordships' House is aware that intrusion into the privacy of the individual is an issue that this Government take extremely seriously. Indeed, we are introducing a Bill this Session to ensure that the use of intrusive investigation techniques continues to be regulated for the protection of both the rights of the individual and society at large. Clearly, Article 8 considerations will be at the heart of that legislation.

But I make an important general point here. Central to the ECHR and the Human Rights Act is the principle of balance. The convention recognises that most of the rights within it are not absolute. There are circumstances where rights can legitimately be limited by the state and where a public authority must be tough on an individual's rights to protect the rights of society as a whole. The convention sets tests by which we can measure whether those limitations are in line with human rights principles. Are they in accordance with the law? Do they pursue a legitimate aim? Are they proportionate? The point is that there are circumstances in which the state is justified in interfering with a convention right, such as privacy. Clearly, Strasbourg recognises this. Simply to show that a particular action by a public authority touches on a convention right does not automatically mean that the right has been violated. The decision as to whether the legislation concerned is compatible with convention rights is not a precise science. After all, everything in the law is arguable. No Minister or official can be 100 per cent sure--certainly not before the Human Rights Act is in force and we see how the courts deal with convention points.

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I cannot go into the provisions of the particular statutory instruments that the noble Viscount cited, although I shall be happy to pass on his concerns to the Ministers with direct responsibility for the legislation in question.

I turn to the suggestion of the noble Viscount, that in future the Government should attach to every statutory instrument a statement of compliance with convention rights. The current position has statutory and non-statutory elements. As has been widely recognised in the debate, the statutory provision is Section 19 of the Human Rights Act which requires a Minister when introducing a new Bill to make a statement that in his or her view the provisions of the Bill are compatible with convention rights. Alternatively, if he or she is not able to state that he must explain why the Government wish the House to proceed with the Bill. But Section 19 applies only to primary legislation. Parliament, wisely I believe, did not extend the operation of that scheme to all species of legislation, primary and secondary. I venture to suggest that that is because the Human Rights Act subjects secondary legislation to a number of very powerful safeguards.

Put simply, the general scheme of the Act does not permit secondary legislation which is incompatible with convention rights. In the first place, Section 6 of the Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with convention rights unless the public authority cannot act otherwise because of a provision in primary legislation. Unless that Section 6 saving applied, to seek to bring forward incompatible secondary legislation would be in conflict with the Human Rights Act itself.

As your Lordships are aware, secondary legislation must always be within the powers of the Minister who makes it. It must be (to use the relevant term) intra vires. A Minister has no power to make secondary legislation that is incompatible with convention rights unless primary legislation requires him to do so. The Joint Committee on Statutory Instruments and its Clerk devote much anxious attention to the vires of proposed new secondary legislation. Behind and above these considerations there is the simple fact--a point very ably made by the noble Lord, Lord Lester--that from 2nd October of this year such incompatible secondary legislation can be struck down at any time by a court. It enjoys no special protection under the Human Rights Act. I believe that that is an extremely powerful safeguard which provides the best protection of all.

My noble and learned friend the Attorney-General has already announced that from the beginning of the current Session a Minister who invites Parliament to approve a statutory instrument subject to affirmative resolution should, as a matter of good practice, always volunteer his or her view regarding its compatibility with convention rights. It is not essential that he or she should do so for the reasons that I have already given. But we believe that it would be odd if there were a debate about a proposed statutory instrument and the Minister made no comment about compatibility with

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convention rights. We have also said that as a matter of good practice the Minister should always give his or her view regarding secondary legislation which amends primary legislation. Such legislation falls into a special category: it is treated as protected primary legislation under Section 21 of the Human Rights Act. We believe that it is right for the Minister to give his view about compatibility in such cases even where the secondary legislation which amends primary legislation is not subject to affirmative resolution. For example, this may take the form of a letter to the Joint Committee on Statutory Instruments. Detailed guidance to this effect has been issued to departments.

I should like to deal with particular points raised in the debate. I believe that my earlier remarks have dealt with most of them. I can provide some comfort to the noble Lord, Lord Lester, on the question of the terms of reference of the joint committee to be established. It is our belief that the terms of reference need to cover such matters as inquiries into general human rights issues in the UK. We also believe that that area should be covered by the joint committee in examining draft legislation and, in more general terms, that it should look at the longer term and perhaps the arguments surrounding the development of a human rights commission within the UK. We hope shortly to make an announcement of the date when the joint parliamentary committee will be set up. Clearly, there are important issues to be settled and debates to be had.


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