§ Mr. Clappison
I beg to move amendment No. 9, in page 2, line 37, leave out 'possible' and insert `reasonable'.
The Second Deputy Chairman
With this, it will be convenient to discuss the following Amendment No. 13, in page 2, line 38, after 'legislation', insert 'where ambiguous'.
Amendment No. 14, in page 2, line 38, leave out 'read and given effect' and insert 'interpreted'.
Amendment No. 101, in page 2, line 38, after 'way', insert'which reflects the intentions of Parliament and'.Amendment No. 26, in clause 6, page 4, line 13, after 'cannot', insert 'reasonably'.
New clause 8—Margin of appreciation—'In any proceedings in which a court is considering the question of whether primary or subordinate legislation is compatible with a Convention Right, full regard shall be had to the margin of appreciation accorded to a member state in relation to its statute or common law.'.
§ Mr. Clappison
The amendments are exploratory. Clause 3 deals with the way in which United Kingdom courts are to interpret legislation following incorporation. That is an important issue, and we want to ensure that the clearly expressed will of Parliament is heeded if incorporation takes place.
Amendment No. 13 explores that issue. We are conscious of the fact that it reflects a current pre-incorporation practice of the courts, in that the convention can be relied on as a guide to the interpretation of Acts of Parliament where the domestic court finds that the relevant statutory provision is ambiguous. That rests 416 on the basis that Parliament can be presumed to have legislated in a manner consistent with Britain's treaty obligations.
Next we wish to explore how the courts are to go about what is required of them under clause 4. Earlier this afternoon, we were told that the Government were keen on plain English and consistency in language, and that words had to be given their ordinary meanings, so we were slightly intrigued to see the term "read and given effect" in clause 3. We were even more intrigued when we looked at the heading—"Interpretation of legislation"—and we wondered why the body of the clause did not simply use the term "interpreted" rather than the term "read and given effect". Is there any significance in the difference? We look to the Government to tell us what, if anything, is meant by it.
Amendment No. 101 explores the question of interpreting legislation in a way that reflects the intentions of Parliament. We think that that is important. The other amendments in the group are similar. We want to ensure that the will of Parliament is not overridden in inappropriate circumstances. If the courts find that legislation is incompatible, the proper course under the Bill is for a declaration of incompatibility to be made.
Although new clause 8 is important, I hope that the Committee will forgive me if I speak only briefly about it, because we have already been through the arguments about the margin of appreciation, which we regard as an important doctrine. We want to put those words in the Bill because we want that doctrine to be reflected in our courts when they apply the European convention.
The amendments explore important issues, and we look to the Government for a constructive and clear response.
§ Mrs. May
I shall concentrate my brief comments on amendment No. 101 and new clause 8, because both are at the heart of the concerns expressed by some of my right hon. and hon. Friends in our earlier debates, both on the first day in Committee and today, about the relationship between the courts and Parliament.
The importance of that relationship was ably described by my hon. Friend the Member for Solihull (Mr. Taylor), who, in an earlier debate, talked about the way in which it has stood the test of time and maintained human rights in this country for many hundreds of years. We should retain that relationship, and there is a genuine concern about the extent to which the implications of the Bill will strike at its heart, and at the distinction of powers between the judiciary and Parliament.
As my hon. Friend the Member for Hertsmere (Mr. Clappison) said in his summing up of the first group of amendments tabled to clause 2, Parliament has been the defender and protector of human rights in this country for many years—a position that has stood the test of time—yet there is concern about the Bill's impact on the role of Parliament as the protector of human rights in the United Kingdom.
The Government have stated their position several times—that they do not intend that relationship to be usurped and that they respect the role of Parliament as it has been described. The intention of amendment No. 101 is to make the role of Parliament clearer on the face of 417 the Bill and to draw attention to it. It would insert words into clause 3(1) so that it would read:primary legislation and subordinate legislation must be read and given effect in a way which reflects the intentions of Parliament",as well asin a way which is compatible with the Convention rights.6.45 pm
It is important to explore that issue with the Government and to ensure that their intentions are clear. We reiterate the importance of the requirement that the will and intentions of Parliament should be taken into account. The Bill will give more powers to the judiciary in this country, and it is important that we continue to explore the relationship that will exist after enactment, assuming that the Bill is passed—it does not need the power of Mystic Meg to guess that it will be passed.
The intentions of Parliament should be referred to in the Bill. If I understand the notes on clauses correctly, the Government have conceded thatthere comes a point when an interpretation must yield to the intention of Parliament notwithstanding that, in the result, the legislation is incompatible with the Convention rights.Amendment No. 101, like several of our other amendments, would put words in the Bill to give effect to the intention that the Government have expressed.
Many references have been made to the concept of the margin of appreciation. New clause 8 would specify on the face of the Bill thatfull regard shall be had to the margin of appreciation".I believe that the importance of that concept is accepted on both sides of the Chamber, but, as the Bill stands, it is not expressly referred to or explicitly stated.
The European Court of Human Rights has already allowed for the concept of the margin of appreciation, to respect the sovereignty of each nation state that is signatory to the convention. If new clause 8 were added to the Bill, rather than our simply accepting that that practice has occurred over the years, the concept would appear explicitly in the Bill. That would be useful in drawing to the attention of the United Kingdom courts that issue and the importance that Parliament attaches to it—an attitude that is shared and respected throughout the House of Commons. I therefore hope that the Government will look favourably on new clause 8.
§ Mr. David Maclean (Penrith and The Border)
I wish to speak briefly on this group of amendments. I am deeply concerned about the proposal that the judiciary should have the right to strike down subordinate legislation without any reference to Parliament. The Committee will be fed up with hearing me say, as I now do for the third time in two days, that the Home Secretary is a reasonable man—
The Second Deputy Chairman
Order. I think that the right hon. Gentleman is on the wrong group of amendments. The amendment to which he refers comes later.
§ Mr. Hogg
The use in the clause of the word "possible" causes me some concern, as it may encourage the courts 418 to give an unduly artificial interpretation to statutory language. I support amendment No. 9, as it substitutes "reasonable" for "possible".
An argument that may appeal to the Home Secretary is that, once one has started in one statutory context to give language an artificial meaning, there is a danger that it could serve as a precedent and be carried over into other interpretations in a different context: a word that has a particular meaning in one statute may serve as a precedent for the interpretation of that word in a different context. I prefer the word "reasonable" to "possible", as suggested in the amendment tabled by my hon. Friend the Member for Hertsmere (Mr. Clappison). A declaration of incompatibility is the proper remedy if the statute cannot properly and reasonably be interpreted in a way that is compatible with the convention.
A different point arises from new clause 8, on which I shall follow from where my hon. Friend the Member for Maidenhead (Mrs. May) left off. It is clear and right that a court should be slow to depart from the decisions of a Parliament in concluding that a Parliament has derogated from convention rights—that has long been accepted in the jurisprudence of the European Court of Human Rights. I think it right that that should be specified in the Bill, as the Bill will guide the United Kingdom courts in their approach to the convention.
The statute should expressly state that the courts should have due regard to the expressions of parliamentary will, in the hope that the courts will be slow to hold that Parliament has departed and derogated from convention rights. I believe that there is an advantage in specifying in the Bill the concept of a margin of appreciation.
§ Mr. Paul Stinchcombe (Wellingborough)
I wish to reply to some of the points made by the right hon. and learned Member for North Hykeham and Sleaford—
§ Mr. Stinchcombe
I was close.
The points made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) were seductively made, but they were wrong in principle and dangerous in effect. Clause 3(1) and clause 6(1) are the provisions that truly give the Bill teeth—if rights are to be brought home, it will be precisely because of those provisions. Clause 3(1) states:So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.Paragraphs 2.7 and 2.8 of the White Paper "Rights Brought Home" make it clear that those words are intended to go beyond pre-existing law:This goes beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless legislation itself is so clearly incompatible with the convention that it is impossible so to do.It is precisely because of the opening words of the clause and their effect that convention law will be moved forward in this country in a way that I believe is desirable.
§ Mr. Grieve
I understand the hon. Gentleman's point but, like my right hon. and learned Friend the Member for 419 Sleaford and North Hykeham (Mr. Hogg), I want to know whether the construction of those words will force courts into making artificial interpretations. Would it not be better for the courts to tell Parliament that primary or subordinate legislation was incompatible with the convention than—as might happen under the current wording—to do painful gymnastic exercises to make existing legislation fit convention principles when it cannot?
§ Mr. Stinchcombe
I appreciate the hon. Gentleman's argument, but I reject it—I shall invite my right hon. Friend the Home Secretary to confirm that clause 3(1) was constructed in accordance with paragraphs 2.7 and 2.8 of the White Paper precisely to avoid such problems.
Hon. Members may know that there has been some academic discussion about the opening words of the clause. Sir William Wade, who is a member of the chambers of which I was a member before I came to the House, and the hon. Michael Beloff, who is head of those chambers, have publicly disagreed in academic articles and speeches about the meaning of the words. It is now a perfectly appropriate time, given Pepper v. Hart, for my right hon. Friend the Home Secretary to resolve the matter once and for all. We must make it clear that the words in clause 3(1) mean what they say and what we said that they meant in paragraph 2.7 of the White Paper—the words go beyond the present rule and, wherever any interpretation of legislation can be made so as to uphold convention rights, that is what the courts must be invited to do.
§ Mr. Swayne
I hope that the Home Secretary will confirm, as the hon. Member for Wellingborough (Mr. Stinchcombe) requested, that that is the plain meaning of the words. I fear that the courts will avoid the clear parliamentary intention of legislation and do the gymnastics that my hon. Friend the Member for Beaconsfield (Mr. Grieve) described to accommodate the word "possible"; I fear that they will place a construction on legislation to make it compatible with the convention when it clearly is not, so circumventing the proper remedy in the Bill, which is to bring the matter back to Parliament.
§ Mr. Straw
This has been a short, but interesting, debate on one of the most fundamental issues about the method that we have chosen to incorporate the European convention on human rights in British law. As hon. Members from both sides of the Chamber will understand, there was considerable debate inside the Labour party and between the Labour party and the Liberal Democrats before the election, and much consideration by the Government after the election, about the form that incorporation should take.
As the White Paper makes clear, we considered how other common law countries had incorporated Bills of Rights. We examined how Canada and New Zealand—both outside the continent of Europe—had dealt with similar issues and whether a Bill of Rights could appropriately be entrenched as a basic and fundamental law with a higher status than the law passed by their Parliaments. We decided to reject Canada's approach, which was, in effect, to establish a fundamental law that, in certain circumstances, took precedence over laws 420 passed by its Parliament. We also considered the New Zealand model. We came up with our own approach—it is a British answer to a British problem—fundamental to which is the sovereignty and supremacy of Parliament.
I have never believed—my colleagues share this view—that it would be sensible in this country to have a supreme court that could override the will of Parliament. Indeed, such a system would be extremely dangerous without a written or codified constitution or—as applies in the United States and almost all other constitutions—the mechanisms to override the fundamental law as laid down by a supreme court.
It would mean that judges in a British supreme court would be accorded more power than is, in practice, accorded to US Supreme Court judges, whose decisions can, in the final analysis, be overridden by the popular will through an amendment to the constitution—without such a facility to override judges who are unelected or who were elected many years before, the democratic processes cannot operate effectively.
For that reason, we decided that, while of course the courts would have clear powers to apply the European convention—without that, we would not be bringing rights home—ultimately Parliament's will would prevail. We have applied that in a number of ways which I shall place on record before answering the specific points that have been raised by hon. Members on both sides of the Chamber.
Clause 19 requires a Minister introducing a new measure tomake a statement to the effect that in his view the provisions of the legislation are or are not compatible with the Convention rightsor say that he is unable to make such a statement.
Nothing could be more compatible with the sovereignty of Parliament than the fact that the Bill incorporating the convention on human rights refers to the possibility—that may happen week by week—that Ministers have to apply it to future legislation. That is not to say that they have to force future Bills into the apparent straitjacket of the convention; they simply have to make a statement to the House on whether a measure is compatible with the European convention, and therefore with the Bill.
Obviously, it will be incumbent on Ministers—certainly under the present Administration—to do their best to ensure that Bills are compatible with the convention. Indeed, that practice was followed for many years by the previous Administration. They also subscribed to decent human rights, and for the practical reason that, if Bills were introduced that were knowingly incompatible with the convention, the Government could easily end up in trouble, if not with United Kingdom courts, with the European Court of Human Rights, which in practice has a facility to override Parliament so long as Parliament decides to accede to the convention. That is the first way in which we respect the sovereignty of the House.
The second is through clause 3, which is very clear. I should let the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) know that we will go on to discussing its detailed wording—it was easier to refer to his constituency when he represented the former Prime Minister's home town, which was not such a mouthful.
421 Clause 3(1) states:So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way that is compatible with the Convention rights.Subsection (2)(b) makes it absolutely clear thatThis section … does not affect the validity, continuing operation or enforcement of any incompatible primary legislation".The issue of incompatibility of legislation can be addressed only by the higher courts. I should explain to the hon. Member for Maidenhead (Mrs. May) that no group of senior judges looking at the clause will come to any other view but that the intention of Parliament is that there may be legislation that is incompatible with the convention—either in future or previously—and, that even if it is found to be incompatible, it will remain in force unless and until the House, by accelerated or normal procedure, decides otherwise.
§ Mr. Hogg
The Home Secretary has been making the point that, in this context, the Government are keen not to undermine parliamentary sovereignty. Does he understand that Opposition Members who have studied the argument would have much greater confidence in that approach had he not adopted the remedial order procedure set out in the Bill, which provides for affirmative resolutions for changing primary legislation? We would feel very much happier if he gave sympathetic consideration to amendment No. 64 to clause 10. We would then have much greater confidence in his assertion that he is not seeking to undermine parliamentary sovereignty.
§ Mr. Straw
The right hon. and learned Gentleman raises an important point that he also made on Second Reading. I have been considering it, but I shall make no promises, except to say that I found it a cogent argument. It is by no means the only occasion on which the right hon. and learned Gentleman has made a cogent argument, and I listened to him with great care. We shall discuss the matter in more detail when we reach clause 10, but our intention is that the procedure under clause 10 should be used not to bypass the will of the House, but simply to deal with practical problems that may arise. I hope to provide the right hon. and learned Gentleman with a satisfactory explanation when we reach clause 10 and, if I cannot, I shall take further account of his remarks.
Even on the most dismal interpretation of clause 10, the will of the House still prevails. It may be a truncated procedure, but it certainly does not give the courts the power to say what the law of the land should be. We are seeking to provide a truncated procedure with rather more care than the previous Administration took with the famous Henry VIII clauses on deregulation, for example.
I shall now respond to some of the specific points that have been raised during the debate, although I hope that Opposition Members will accept that I have dealt with the gravamen of their points in some detail.
Amendment No. 9 would require legislation to be construed in accordance with convention rights so far as it is "reasonable" to do so, rather than so far as it is "possible" to do so. The likely result—and no doubt the intention—is that the courts would not go so far down the road of interpreting legislation as they would under the terms of clause 3 as it stands.
As I have said, we want the courts to strive to find an interpretation of legislation that is consistent with convention rights, so far as the plain words of the 422 legislation allow, and only in the last resort to conclude that the legislation is simply incompatible with them. The Opposition want the courts to arrive somewhat earlier at the conclusion that the legislation is simply incompatible with the convention. I cannot see what could be gained by that, bearing in mind our responsibilities under the convention, apart from the prospect of more cases ending up in Strasbourg because fewer people would be satisfied with the interpretation of the United Kingdom courts.
§ Mr. Hogg
There are at least two disadvantages to the Home Secretary's argument. First, the courts may be required to give a strained meaning to language, and that in principle is not a good thing. Secondly, if they give a strained meaning to language in the context of this legislation, it could serve as a precedent that reads across and guides courts in their interpretation of language that is wholly outwith the statute under discussion.
§ Mr. Straw
The right hon. and learned Gentleman is right on his second point. The legal section of the House of Commons Library, like any other law library, has wonderful tomes—of which, no doubt, the right hon. and learned Gentleman has made good use, as I did in my brief practice—of words and phrases judicially interpreted. Of course interpretation by one of the higher courts of a particular word will read across into many other circumstances, often anticipated. That is why, as the right hon. and learned Gentleman knows better than I do, parliamentary counsel is so keen on one word rather than another.
I am not convinced, however, by the right hon. and learned Gentleman's first point that the courts will contort the meaning of words until they lose their meaning altogether. In many cases, particularly in respect of statutory interpretation, the whole task of the court is not to make up the law, but to say what it means where that is not clear or where its application in particular circumstances is not clear. The courts are well versed in the interpretation of the law and of Parliament's intention.
Let me say in reply to a point made by the hon. Member for Maidenhead that there was a time when all the courts could do to divine the intention of Parliament was to apply themselves to the words on the face of any Act. Now, following Pepper v. Hart, they are able to look behind that and, not least, to look at the words used by Ministers. I do not think the courts will need to apply themselves to the words that I am about to use, but, for the avoidance of doubt, I will say that it is not our intention that the courts, in applying what is now clause 3, should contort the meaning of words to produce implausible or incredible meanings. I am talking about plain words in what is actually a clear Bill with plain language-with the intention of Parliament set out in Hansard, should the courts wish to refer to it.
§ Mr. Grieve
Perhaps the clause should say "possible and reasonable", but the right hon. Gentleman might then say that the courts are always supposed to be reasonable, so it is not necessary to include that word.
§ Mr. Straw
Ever since the Wednesbury decision, the courts have chided others for being unreasonable, so it is difficult to imagine them not being reasonable. If we had used just the word "reasonable", we would have created a subjective test. "Possible" is different. It means, 423 "What is the possible interpretation? Let us look at this set of words and the possible interpretations." My bet is—without putting this in the Bill—
§ Mr. Straw
More than I have placed on a horse in the Derby, but the amount remains a matter between me and my bookmaker.
My bet is that the courts will say that they will adopt a reasonable approach. As the hon. Member for Beaconsfield (Mr. Grieve) said, they would be the last to admit to adopting an unreasonable approach. I am comfortable with the words in the Bill and I do not believe that the courts will contort them in the way that hon. Members implied.
I come back to the point about parliamentary sovereignty. If the higher courts come up with an interpretation that makes the intention of Parliament risible and means that legislation is applied in a way that is unreasonable and has ridiculous results, it is open to the House to change the decision. For example, in the Crime and Disorder Bill we are overturning the decision of the court in Regina v. Khan—
§ Mr. Straw
With great respect, we are; we are abolishing the concept of doli incapax—[Interruption.] I hope that we are overturning Khan, but I will not go any further into that—[Interruption.] It is open to the House—it is its ultimate right—to change a decision.
My hon. Friend the Member for Wellingborough (Mr. Stinchcombe) asked which of the academics I backed. I back those who have read the plain words in this clause and take the view that it moves us on from the way in which the courts currently interpret convention legislation. Hon. Members should feel reassured by the fact that our courts have had quite a lot of experience in interpreting the convention. Where there is ambiguity, they come down on the side of the convention.
Just before the general election, I amused myself by reading The Times law reports. I try to do that most days. There was a very technical report about the interpretation of a contract. To resolve the issue, the Court of Appeal had wisely looked at the European convention—this was a long time before there was any prospect of its being incorporated—to help it to form a view. The courts have experience. We are moving forward, and we intend to ensure, as the wording makes clear, that, in so far as it is possible, primary and subordinate legislation is read and given effect in a way that is compatible with convention rights.
I think that I have dealt with most of the points raised. In conclusion, I want to deal with new clause 8. It would require the courts, in considering whether legislation was compatible with convention rights, to have full regard to the margin of appreciation accorded to states by Strasbourg institutions. Presumably that is intended to signal to the courts that they should recognise the primary responsibility of Governments for detailed decisions on how convention rights are given effect in domestic law.
424 The doctrine of the margin of appreciation—it is an important one—recognises that a state is allowed a certain measure of discretion, subject to European supervision, when it takes legislative, judicial or administrative action in respect of some convention rights. In other words, it is best placed to decide in the first place whether—and, if so, what—action is required.
My first point about the margin of appreciation is that it is more relevant to some convention rights than to others. It is especially relevant to articles 8 to 11, which enable restrictions to be placed on rights where that is necessary in a democratic society, for any one of a number of reasons. It is less relevant to some of the other articles, for example, article 2 on the right to life, and article 3 on the prohibition on torture or inhuman and degrading treatment or punishment.
The doctrine of the margin of appreciation means allowing this country a margin of appreciation when it interprets our law and the actions of our Governments in an international court, perhaps the European Court of Human Rights. Through incorporation we are giving a profound margin of appreciation to British courts to interpret the convention in accordance with British jurisprudence as well as European jurisprudence.
One of the frustrations of non-incorporation has been that our own judges—for whom I have a high regard, as, I believe, do Opposition Members—have not been able to bring their intellectual skills and our great tradition of common law to bear on the development of European convention jurisprudence.
§ Mr. Grieve
I agree with every word that the right hon. Gentleman has said on this matter. It is why I favour incorporation. However, it is interesting to note that, although that is clearly the intention—and I believe will be the result—this Bill is statute, not common, law. Where does it spell out to the judiciary that the margin of appreciation is available to it in the way that it interprets the Bill? This is an interesting point and I would welcome the right hon. Gentleman's comments on it. We may have implied that that is what the courts should do, but where is that stated in the Bill?
§ Mr. Straw
The margin of appreciation is laid down in many commission and court judgments. Therefore, it is spelt out in the meaning of clause 2. That is the direct answer to the hon. Gentleman's point. In addition, and as the financial memorandum makes clear, we will spend £5 million on judicial training. I am not making a trivial point. A great deal of time, effort and money will go into the training of the judiciary. I know from my contacts with senior members of the judiciary that they are already alive to the need to bring themselves up to speed on this important development of our law.
§ Mr. Hogg
Is it the right hon. Gentleman's view that the British courts should be very slow to find that, where Parliament has expressly dealt with an issue involving convention rights, the decision of Parliament is a derogation, a departure or a diminution of convention rights? The working assumption should be that, when Parliament has addressed a matter, it has not derogated 425 from convention rights. If that is the approach that the courts should adopt, would it not be helpful to put that concept—perhaps differently expressed—in the Bill?
§ Mr. Straw
We are working that matter not only into the drafting of future legislation, but into the presentation of Bills by Ministers. That is the purpose of clause 19. When a Bill comes before Parliament, the Minister will give Parliament his best view, based on advice from officials and, above all, parliamentary counsel, on whether it is compatible with the convention.
That was the practice for some time under the previous Conservative Administration. I think that it would be impossible to say that all legislation, of whatever antiquity, was passed in a manner compatible with the convention. It is, by definition, impossible to say that of legislation passed before the convention was even a gleam in the eye of a former Conservative Lord Chancellor.
It took some decades before the House, our courts and the parliamentary draftsmen became sensitised to the need to ensure compatibility. It was not until the changes of 1966, allowing individual petition to the European Commission, that Governments began to take on board the need for compatibility in the way in which they went about their daily business and in the drafting of Bills. That is my answer to the right hon. and learned Member for Sleaford and North Hykeham.
§ Mr. Straw
It is. As far as the future is concerned, we are of course inviting the courts to work on the assumption that the House has applied itself to ensuring that legislation is compatible with the convention, except where a Minister comes to the House to say that there are overriding reasons why it is not, to give those reasons and to ask the House to agree the legislation in any case.
§ Mr. Hogg
The right hon. Gentleman has made a sound point, and I concede that he is right. However, I see no objection to the concept of incorporating into the Bill the proposition that, for prospective legislation, the courts should proceed on the assumption that there has not been a derogation of convention rights where Parliament has expressly addressed that question. I see certain advantages in doing that.
§ Mr. Straw
We are achieving the right hon. and learned Gentleman's purpose by a different route through clause 19, which we shall discuss when we reach it. I ask him to read that and to contribute at that stage.
I have gone into some detail to answer the important points that have been made. In the light of what I have said, I hope that the Opposition will withdraw the amendment.
§ Mr. Clappison
This has been an interesting debate, and the Home Secretary, having rightly acknowledged that important points have been raised, has endeavoured to deal with them. It has been reasonable—if I dare use that word—to explore these issues. My first reaction to the proposals was similar to that of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). Having considered the words used in the clause, we were concerned by the prospect of courts straining to give legislation an unrealistic interpretation, 426 and by the possibility that the clearly expressed will of Parliament might be lost in that process. In those circumstances, it would have been preferable for the courts simply to make a declaration of incompatibility, which would have resulted in legislation returning to the House.
I drew some encouragement from the Home Secretary's initial remarks. I respected the clearly argued contribution of the hon. Member for Wellingborough (Mr. Stinchcombe), who drew on academic authorities. The Home Secretary's response against that background gave me some encouragement about the importance that the Home Secretary attached to parliamentary sovereignty. The Home Secretary clearly feels that parliamentary sovereignty has been preserved in the Bill.
We have reservations about clause 10, to which the Home Secretary referred, and we may put some of his comments to my right hon. and learned Friend the Member for Sleaford and North Hykeham in the bank for when we debate that. I appreciate that the Home Secretary made those remarks quite deliberately, but they may, less deliberately, have implications for the next group of amendments, which relate to the striking down by courts of subordinate legislation without that legislation coming back to the House.
The Home Secretary knows our concerns. We wanted a clear exposition from the Government to the effect that the courts were not to strain to give legislation an artificial or unrealistic meaning. We have drawn some reassurance from his remarks, although not complete reassurance. On that basis, and because we need to make progress, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Clappison
I beg to move amendment No. 17, in page 2, line 46, leave out from 'legislation' to end of line 2 on page 3.
The Second Deputy Chairman
With this, it will be convenient to discuss the following amendments: No. 11, in clause 4, page 3, line 13, leave out from 'right' to end of line 15.
No. 12, in page 3, line 16, at end insert'and save for making a declaration of incompatibility as aforesaid a court shall not otherwise strike down any subordinate legislation by reason of its incompatibility with a Convention right'.
§ Mr. Clappison
We now come to what happens when a court finds that legislation is incompatible with a convention right. In the case of primary legislation, the court may make a declaration of incompatibility, which results in the procedure for remedial action to which I referred in the previous debate.
In the case of subordinate legislation, the position is a little more complicated. If subordinate legislation is incompatible with a convention right, and the primary legislation under which it was made prevents removal of that incompatibility, the court may make a declaration of incompatibility. If, however, the subordinate legislation is incompatible and the primary legislation does not prevent removal of the incompatibility, the court may strike down the subordinate legislation without it coming back to the House.
That is a significant development, which goes beyond the present position, in which courts may hold subordinate legislation to be invalid only in certain limited 427 circumstances under judicial review. I do not want to go too far into the intricacies of that, but it is established that the grounds on which courts can strike down legislation are limited.
The powers to strike down subordinate legislation conferred by the Bill go beyond that, and take us into new constitutional territory. The courts will be able to strike down subordinate legislation that is unobjectionable on existing grounds of ultra vires. We do not question the legitimacy of the established doctrine of judicial review on grounds of ultra vires, but we are worried by the new constitutional implications of allowing courts to strike down subordinate legislation on grounds of incompatibility where the legislation is not ultra vires and without the matter coming back to the House. That may mark a change in the constitutional role of the courts, which we should not allow to pass without comment.
The Lord Chancellor, a supporter of incorporation of the European convention on human rights, made a robust statement of the principles governing the constitutional position of the courts in his 1995 Administrative Law Bar Association lecture. He said that the key principle was thatjudicial review is not an appellate procedure. The court must not substitute its opinion for that of the decision maker. The court must rule only upon the legality of the decision and not upon its correctness. The court will concern itself with the manner in which a decision is reached rather than with the substantive merits of the decision itself.The Lord Chancellor was correct on that occasion, and right to draw a distinction between the procedural grounds on which judicial review is exercised and an appellate procedure that looks at the substantive merits of a decision.
The Bill's new procedure seems to lead the courts into considering the substantive merits of issues, rather than procedure. The Lord Chancellor's considered speech drew on a long line of historical precedents, to justify his analysis of the constitutional role of the courts and the place that they occupy in our constitution. The Lord Chancellor's line of precedence went back at great length, almost, although not quite, to Tudor times—I say that without meaning anything by it—and began with Bonham's case in 1610.
We know that the noble Lord Chancellor loves historical precedents, and he drew together a number to justify what he thought was the correct constitutional position between Parliament and the courts. We think that that was right, but we are now being asked to do something new under the clause. It involves the courts moving beyond the existing constitutional framework into new territory. We cannot allow that to happen without marking it in some way.
One of our main concerns throughout the Bill has been the position of parliamentary sovereignty. We have just heard the Home Secretary speak at length on how parliamentary sovereignty has been preserved, notwithstanding incorporation, through the mechanisms in the Bill. However, we now have an example of exactly what the Home Secretary warned about: courts having the power to strike down legislation without the matter coming back to the House. Although we have reservations about the Government's remedial action, it is important, as a matter of principle, for legislation to come back to the House rather than be struck down by the courts without coming back to the House.
428 This is a constitutional precedent, and it is relevant to parliamentary sovereignty. The Committee should mark it and not allow it to pass.
§ Mr. Grieve
I find the position in respect of this clause particularly difficult. I shall explain why. We are dealing with subordinate legislation, and my experience as a barrister is that subordinate legislation is sometimes struck down by judges for being ultra vires. When that has happened, no seismic shock has passed through this House, because most subordinate legislation is brought into being after the merest scrutiny by the House.
I sit on the Joint Committee on Statutory Instruments, so I know that our method of scrutinising subordinate legislation is totally inadequate. It is not far from being a disgrace. I say that on a non-partisan basis, because it has existed for a long time.
§ Mr. Grieve
I should like to develop my argument first.
The prospect of the courts striking down subordinate legislation on the ground that it is incompatible with the European convention as incorporated bothers me less than my anxiety that this will be an area of potential conflict unless Parliament puts into operation proper methods of scrutiny of subordinate legislation before it comes into being. In practical terms, it is far more likely that subordinate legislation will be the subject of dispute than primary legislation, although I am sure that the Government and individual Departments will in future provide close scrutiny of subsequent subordinate legislation to ensure that that does not happen.
The problem, which we shall come to when we consider the Henry VIII clause, is that I have always been absolutely persuaded that, if the principle of incorporation is to work, it will be because Parliament and the courts seem to be acting in tandem because one is not subordinate to the other and it is Parliament's will that the rights as set out in the Bill should be incorporated and upheld, and because Members of Parliament will look to the courts to provide them with guidance in carrying that out.
We must move away for a moment from the question of the precise wording of the Bill and whether judges ultimately have the power to strike down subordinate legislation and persuade the Government, particularly the Parliamentary Secretary and the Home Secretary, that regard must be had to how subordinate legislation is brought into being. Unless it is perceived by both Parliament and the public that Parliament takes an active role in ensuring that the subordinate legislation is compatible with the European convention, we shall subsequently have a fertile area of conflict if the judges then go round striking it down.
I accept that I am widening the scope of the argument a little beyond the precise wording of the amendment, and I apologise to you, Sir Alan, for doing so. However, it is a point of fundamental importance and it must be addressed. I am aware that Justice has been particularly exercised on the matter, because it is convinced that there will have to be some form of parliamentary Committee to scrutinise subordinate legislation. With a certain refreshing naivety, it came to see me and inquired whether 429 I thought that the Select Committee dealing with statutory instruments could do the job. The answer is, "Yes, it could. But it would have to be several Committees, not one, and it would have to be given the teeth to do it. It certainly has the expertise."
I realise that it is a separate issue, which will be discrete from the Bill, but the acceptability of the courts striking down subordinate legislation will be greatly enhanced if the mechanisms by which that subordinate legislation is brought into being are subject to proper scrutiny. Unless they are, we run the serious risk of the courts operating in that area, and Parliament will be held in contempt. We do not scrutinise subordinate legislation properly in the first place, so we shall be ill prepared to complain when subsequently it is deleted.
That is more important, potentially, than amending the Bill as it stands. My experience as a barrister is that, ultimately, subordinate legislation is regarded as the creature of Ministers. If Ministers get it wrong and it is struck down, no seismic shocks ripple through our constitution. Nevertheless, it is an important point and I hope that the mere fact that it highlights the deficiencies in the creation of subordinate legislation means that we shall end up with a much better constitutional procedure for dealing with the growing amount of such legislation. In the 1960s, we passed some 25 pieces of subordinate legislation a year, and today we look at about 70 a week in Committee. Unless the matter is brought under control, it will cause serious problems in the future.
§ Mr. Hogg
I wish to follow what my hon. Friend the Member for Beaconsfield (Mr. Grieve) has been saying. Ever since I have been in the House, I have been extremely concerned by the volume of secondary legislation and how the House considers it. I agree with my hon. Friend that it is a scandal. Important obligations are created and extensive penalties sometimes imposed through the process of secondary legislation. As we all know, the House pays almost no attention to the content. Frequently, we cannot do so because it is the subject of the negative resolution procedure. Even when we can, because it is the subject of the affirmative resolution procedure, the debate is extremely short—normally 90 minutes—and one cannot amend the documents. One can simply hope that a draft is presented for discussion before the order is ultimately laid.
I admit that the Government of which I was a member used secondary legislation to a huge extent—all Governments do. The House should resist doing that. The paradox is that, if the Committee accepts the argument of my hon. Friend the Member for Beaconsfield and, as a consequence, improves how we consider and debate secondary legislation, it will be much more offensive to allow the courts to strike it down on the ground of incompatibility.
A serious constitutional issue is raised by the courts' ability to strike down any form of legislation—in this case, we are discussing secondary legislation—and that will probably be made greater if we do what we should do, which is fundamentally to overhaul how we consider and control secondary legislation.
§ Mr. Leigh
I must confess that I have difficulty with the arguments presented to the Committee by my hon. Friend the Member for Beaconsfield (Mr. Grieve) and my 430 right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). They seem to be arguing that the fact that the House gives inadequate consideration to subordinate legislation is a good excuse for allowing judges to strike it down. If that is their contention, it is extraordinary. That is not a good excuse for allowing judges to strike down subordinate legislation.
If we are convinced that we are giving inadequate attention to subordinate legislation, surely the remedy lies in our hands: we should make the House less of a legislative sausage machine, and allow sufficient time to consider subordinate legislation. However, as my right hon. and learned Friend the Member for Sleaford and North Hykeham knows full well from his experience in government, currently that is impossible because we should have to meet not only all week, but all weekend, and we should have no recesses at all. In any event, much subordinate legislation is very technical and the House does not want to consider it. I do not accept the arguments of my hon. Friend the Member for Beaconsfield and my right hon. and learned Friend the Member for Sleaford and North Hykeham.
This is a dangerous precedent, because we are extending the remit of judges. We have made that point repeatedly in these debates. It may well be that striking down such legislation would not, in the words of my hon. Friend the Member for Beaconsfield, produce a seismic shock in the constitution, and no doubt it would not be commented widely upon in the tabloid press. However, that does not negate the important principle that, for the first time, as I understand it—I may be wrong—judges will, at the stroke of a pen, be able to strike down legislation, albeit subordinate, of a sovereign Parliament. That is a development about which we should be considerably worried.
I have been trying to research these matters. There is one point that I do not understand in the otherwise excellent briefing supplied to us by the Library. It states:Clause 3 is not intended to affect the validity, continuing operation or enforcement of any incompatible primary legislation, or any incompatible subordinate legislation if primary legislation prevents the removal of the incompatibility."
I confess that I find that concept difficult to understand. Will the Parliamentary Secretary explain exactly what it means?
I note that subordinate legislation, as defined in clause 21, seems to relate to a great deal of legislation emanating from Acts of the Parliament of Northern Ireland or measures of the Northern Ireland assembly. I wonder whether we are allowing judges to take a close interest in legislation that was passed by the former Stormont Parliament or which will be passed by the future Northern Ireland assembly. That is a small point, but I hope that the Parliamentary Secretary will be able to respond to it.
§ Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)
I am grateful to the hon. Member for Beaconsfield (Mr. Grieve) for arguing the line he did, because it is important, and I followed it with great interest.
I am not clear whether the amendments deal primarily with an issue of great importance because of the underlying principle or because there could be major consequences in terms of the numbers of cases where the courts felt called on to consider subordinate legislation. 431 I do not know whether the Government, in putting forward the proposal in the Bill, had in mind the possibility of a flood of cases arising from subordinate legislation and thought that it would be impractical or difficult to bring them all back to Parliament on a signal from the judiciary that there was incompatibility and deal with them as the Bill proposes to deal with cases arising from primary legislation.
It is hard to decide whether to proceed with subordinate legislation in the same way that is proposed for primary legislation. That would open a huge Pandora's box. Because of the manner in which Parliament reviews secondary legislation, we are guilty of allowing inadvertently to be passed much that should not be passed. The wider constitutional points made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. Member for Beaconsfield were well put, and I endorse them.
§ Mr. Hogg
I am grateful to the right hon. Gentleman for his support, but the point goes further than he has contemplated, because European Union legislation is directly incorporated into the United Kingdom by reason of the treaty. A great deal of subordinate legislation is simply EU legislation that is carried over and is not the subject of any discussion.
§ Mr. Maclennan
It is such thoughts that make me think that there may be a profound practical reason for accepting the present drafting of the Bill. That must make much stronger the case for the improvement of our scrutiny procedures. I hope that I am not straying out of order in dealing with this point—I think that it is germane to the issue under discussion. There is a problem of overload in this House. We are dispensing powers to other assemblies and Parliaments and we may consider the tasks that should be done in another place if it is reformed and democratised, so there will be plenty of work to be done by both Houses of Parliament, notwithstanding those significant changes, in ensuring that subordinate legislation does not risk running foul of the European convention on human rights.
§ Mr. Hoon
The amendments would affect the powers of the courts in respect of subordinate legislation. Amendment No. 17 would amend clause 3(2)(c) so that, notwithstanding the interpretative provisions of clause 3, all incompatible subordinate legislation, rather than only inevitably incompatible subordinate legislation—that is, subordinate legislation that inevitably takes an incompatible form because of the terms of the primary legislation under which it is made—would have continuing force and effect.
Amendment No. 11 is consequential. It would amend clause 4(4)(b) so that the power to make a declaration would apply to all subordinate legislation, not only to inevitably incompatible subordinate legislation as at present.
Amendment No. 12 would insert an additional phrase into clause 4(4) to make it clear, in conjunction with amendment No. 17, that the courts could not strike down subordinate legislation. That, I hope, is a fair summary of the amendments.
432 The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) raised the issue Second Reading, and gave notice that he would return to it in Committee. The present debate gives me an opportunity to explain more fully why the Government disagree with the Opposition's view that the Bill confers on the courts a power in respect of subordinate legislation which differs in kind from that which they already possess. I shall also explain why the amendments would harm the Bill.
The twin starting points are, once again, the sovereignty of Parliament and the protection of individuals' rights under the convention. The Government have decided that the courts should not be able to strike down primary legislation because of the special status that Acts of Parliament and various other measures enjoy. That special status is, of course, acknowledged by the existing powers of the courts. They cannot strike down Acts of Parliament because of the doctrine of parliamentary sovereignty.
However, subordinate legislation can already be, and is, struck down by the courts in certain circumstances. The courts will review the exercise by a Minister of a power to make subordinate legislation, just as they will review the exercise by any public authority of a discretionary power. I emphasise that, because it may be their reluctance to take that on board that lies behind the Opposition's difficulties with the Bill on that point.
Subordinate legislation may be struck down as ultra vires when the making of the instrument in question is outside the scope of the enabling power. Such legislation may also be attacked on procedural grounds—for example, when the mandatory procedure for making it as set out in the parent statute has not been followed or, less commonly, on the ground that the discretion involved in making the relevant instrument has been exercised unreasonably.
§ Mr. Hogg
The Minister's argument is less good than he thinks it is. He is saying that the courts already have the power to strike down secondary legislation on the ground of ultra vires and under the Wednesbury principles. I understand that, but we are arguing about the courts having the power to strike down secondary legislation on the ground of incompatibility. That raises the question of merit, which goes beyond vires. Although there is a power to strike down secondary legislation, it is narrowly defined and usually applies to ultra vires or unreasonable acts, whereas the Bill gives the courts an ability to determine not just issues of vires but questions as to compatibility that are themselves issues of merit.
§ Mr. Hoon
I shall deal with that point as I develop my argument in relation to the Bill. I hope that it is common ground between us that, if a Minister exercises an order-making power in a way that is not permitted by the parent Act, the courts should be able to disapply that order. I doubt that there is any dispute about that. In doing so, the courts would, in effect, be reinforcing the will of Parliament by ensuring that the Act that it approved was properly applied. In that sense, the courts would be upholding parliamentary sovereignty, by ensuring that the will of Parliament in primary legislation had been given effect. I hope that that point will be accepted.
Let me apply that argument to the Bill. If Parliament passes an Act that contains order-making powers that are capable of being exercised in a way that is compatible 433 with convention rights, what is the objection to providing that, if a Minister fails to exercise those powers consistently with those rights, the courts should be able to quash the instrument or set it aside? I cannot see what is wrong with that argument. Indeed, it is the absence of such a power with which I would have difficulty. The Human Rights Bill, if it is approved, will become an Act of Parliament, and it is perfectly reasonable to require that subordinate legislation be consistent both with the terms of its parent statute and with the Human Rights Act. That is what the Bill provides.
It is inherent in the public authority provisions in clause 6 that Ministers will be acting unlawfully if they make subordinate legislation that is incompatible with a convention right, unless the parent statute requires the subordinate legislation to take that form. I hope that that is the answer that the hon. Member for Beaconsfield (Mr. Grieve) was seeking. If he reads clause 6(1), he will find that Ministers are under that duty. These provisions are wholly beneficial. If it is the will of Parliament that something should be done that is incompatible with a convention right, Parliament must be prepared to say so in primary legislation.
The hon. Member for Gainsborough (Mr. Leigh) raised the issue of subordinate legislation that is inevitably incompatible with convention rights. The nature of the primary legislation under which an order is made may be such that any subordinate legislation will necessarily be in conflict with convention rights. If the courts were to have the power to strike down such subordinate legislation, it would, at least indirectly, amount to a challenge to the primary legislation itself. That would place the courts at odds with Parliament. I could understand the concern of Conservative Members if the Human Rights Bill gave the courts the power to quash such subordinate legislation, but it does not do so. Clause 3(2)(c) makes that point abundantly clear.
§ Mr. Gerald Howarth (Aldershot)
Will the Minister confirm that this provision will not have retrospective application?
§ Mr. Hoon
Clearly, it will apply to legislation in force once the Human Rights Act is itself in force.
I hope that Conservative Members will accept that the amendments address an illusory concern. They are not needed to protect the sovereignty of Parliament. Indeed, without these provisions, the sovereignty of Parliament would be threatened, because we would not be able to give effect to parliamentary sovereignty and to the will of Parliament as expressed in primary legislation. The amendments would tie the hands of the courts and would weaken the protection that individuals receive from convention rights. Therefore, I hope that the Opposition will withdraw the amendment.
§ Mr. Clappison
This has been an interesting debate, and we have had some good contributions from Conservative Members. Whatever view we may have of the merits of the process for scrutinising secondary legislation, we are united in our desire to express our zealousness in defending parliamentary sovereignty. We are not satisfied with the Minister's response.
I listened carefully to what the Minister said about ultra vires legislation. This point was anticipated if not in my opening speech, which may not have been sufficiently 434 clear, then certainly in the intervention of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who expressed the same view as I did, but more elegantly and more forcefully. The clause will allow the courts to strike down perfectly good subordinate legislation that is not ultra vires and has no procedural defects merely by considering its merits. The Bill is taking us into new territory. The courts will be able to examine the merits of legislation and to strike it down without reference to Parliament.
The Minister argues that the clause safeguards parliamentary sovereignty. We think that Parliament should be the judge of that. The matter should be subject to parliamentary sovereignty. To make our mark and to register our disapproval of this provision, we shall press the amendment to a vote.
§ Question put, That the amendment be made:—
§ The Committee divided: Ayes 129, Noes 324.437
|Division No. 291]||[7.55 pm|
|Ainsworth, Peter (E Surrey)||Gummer, Rt Hon John|
|Ancram, Rt Hon Michael||Hague, Rt Hon William|
|Arbuthnot, James||Hamilton, Rt Hon Sir Archie|
|Atkinson, David (Bour'mth E)||Hammond, Philip|
|Atkinson, Peter (Hexham)||Heald, Oliver|
|Beggs, Roy||Heathcoat-Amory, Rt Hon David|
|Bercow, John||Hogg, Rt Hon Douglas|
|Beresford, Sir Paul||Horam, John|
|Body, Sir Richard||Howard, Rt Hon Michael|
|Boswell, Tim||Howarth, Gerald (Aldershot)|
|Bottomley, Peter (Worthing W)||Hunter, Andrew|
|Bottomley, Rt Hon Mrs Virginia||Jack, Rt Hon Michael|
|Brady, Graham||Jackson, Robert (Wantage)|
|Brooke, Rt Hon Peter||Jenkin, Bernard|
|Browning, Mrs Angela||Johnson Smith, Rt Hon Sir Geoffrey|
|Bruce, Ian (S Dorset)|
|Bums, Simon||Laing, Mrs Eleanor|
|Butterfill, John||Lait, Mrs Jacqui|
|Chapman, Sir Sydney (Chipping Barnet)||Lansley, Andrew|
|Chope, Christopher||Letwin, Oliver|
|Clappison, James||Lewis, Dr Julian (New Forest E)|
|Clifton-Brown, Geoffrey||Lidington, David|
|Colvin, Michael||Lilley, Rt Hon Peter|
|Cormack, Sir Patrick||Lloyd, Rt Hon Sir Peter (Fareham)|
|Cran, James||Loughton, Tim|
|Curry, Rt Hon David||MacGregor, Rt Hon John|
|Davies, Quentin (Grantham)||McIntosh, Miss Anne|
|Davis, Rt Hon David (Haltemprice)||Maclean, Rt Hon David|
|Day, Stephen||McLoughlin, Patrick|
|Dorrell, Rt Hon Stephen||Major, Rt Hon John|
|Duncan, Alan||Malins, Humfrey|
|Duncan Smith, Iain||Maples, John|
|Evans, Nigel||Mates, Michael|
|Faber, David||Maude, Rt Hon Francis|
|Fabricant, Michael||Mawhinney, Rt Hon Sir Brian|
|Flight, Howard||May, Mrs Theresa|
|Forsythe, Clifford||Moss, Malcolm|
|Forth, Rt Hon Eric||Nicholls, Patrick|
|Fox, Dr Liam||Norman, Archie|
|Fraser, Christopher||Paice, James|
|Gale, Roger||Paterson, Owen|
|Garnier, Edward||Pickles, Eric|
|Gibb, Nick||Prior, David|
|Gillan, Mrs Cheryl||Randall, John|
|Goodlad, Rt Hon Sir Alastair||Robathan, Andrew|
|Gray, James||Robertson, Laurence (Tewk'b'ry)|
|Green, Damian||Roe, Mrs Marion (Broxboume)|
|Greenway, John||Ross, William (E Lond'y)|
|Grieve, Dominic||Ruffley, David|
|Sayeed, Jonathan||Tredinnick, David|
|Shephard, Rt Hon Mrs Gillian||Trend, Michael|
|Shepherd, Richard||Tyrie, Andrew|
|Simpson, Keith (Mid-Norfolk)||Viggers, Peter|
|Smyth, Rev Martin (Belfast S)||Walter, Robert|
|Spelman, Mrs Caroline||Wardle, Charles|
|Spicer, Sir Michael||Whittingdale, John|
|Spring, Richard||Widdecombe, Rt Hon Miss Ann|
|Stanley, Rt Hon Sir John||Willetts, David|
|Steen, Anthony||Winterton, Mrs Ann (Congleton)|
|Swayne, Desmond||Woodward, Shaun|
|Syms, Robert||Yeo, Tim|
|Tapsell, Sir Peter||Young, Rt Hon Sir George|
|Taylor, Ian (Esher & Walton)|
|Taylor, John M (Solihull)||Tellers for the Ayes:|
|Taylor, Sir Teddy||Sir David Madel and Mr. Tim Collins.|
|Adams, Mrs Irene (Paisley N)||Chisholm, Malcolm|
|Ainger, Nick||Clapham, Michael|
|Ainsworth, Robert (Cov'try NE)||Clark, Rt Hon Dr David (S Shields)|
|Allan, Richard||Clark, Dr Lynda (Edinburgh Pentlands)|
|Anderson, Donald (Swansea E)||Clark, Paul (Gillingham)|
|Armstrong, Ms Hilary||Clarke, Tony (Northampton S)|
|Ashdown, Rt Hon Paddy||Clelland, David|
|Ashton, Joe||Clwyd, Ann|
|Austin, John||Coaker, Vernon|
|Ballard, Jackie||Coffey, Ms Ann|
|Barnes, Harry||Coleman, Iain|
|Barron, Kevin||Connarty, Michael|
|Battle, John||Cooper, Yvette|
|Bayley, Hugh||Corston, Ms Jean|
|Beard, Nigel||Cotter, Brian|
|Beckett, Rt Hon Mrs Margaret||Cousins, Jim|
|Begg, Miss Anne||Cranston, Ross|
|Benn, Rt Hon Tony||Crausby, David|
|Bennett, Andrew F||Cryer, Mrs Ann (Keighley)|
|Benton, Joe||Cummings, John|
|Bermingham, Gerald||Cunningham, Jim (Cov'try S)|
|Berry, Roger||Dalyell, Tam|
|Best, Harold||Darling, Rt Hon Alistair|
|Betts, Clive||Davey, Edward (Kingston)|
|Blackman, Liz||Davey, Valerie (Bristol W)|
|Blears, Ms Hazel||Davidson, Ian|
|Blizzard, Bob||Davies, Rt Hon Denzil (Llanelli)|
|Boateng, Paul||Davies, Geraint (Croydon C)|
|Bradley, Keith (Withington)||Davies, Rt Hon Ron (Caerphilly)|
|Bradley, Peter (The Wrekin)||Davis, Terry (B'ham Hodge H)|
|Bradshaw, Ben||Dean, Mrs Janet|
|Brake, Tom||Denham, John|
|Brand, Dr Peter||Dismore, Andrew|
|Breed, Colin||Dobbin, Jim|
|Brown, Rt Hon Gordon (Dunfermline E)||Donohoe, Brian H|
|Brown, Rt Hon Nick (Newcastle E)||Dowd, Jim|
|Brown, Russell (Dumfries)||Drew, David|
|Browne, Desmond||Dunwoody, Mrs Gwyneth|
|Buck, Ms Karen||Eagle, Angela (Wallasey)|
|Burden, Richard||Eagle, Maria (L'pool Garston)|
|Burgon, Colin||Edwards, Huw|
|Burnett, John||Efford, Clive|
|Burstow, Paul||Ellman, Mrs Louise|
|Butler, Mrs Christine||Ennis, Jeff|
|Byers, Stephen||Fatchett, Derek|
|Caborn, Richard||Field, Rt Hon Frank|
|Campbell, Alan (Tynemouth)||Fitzsimons, Lorna|
|Campbell, Mrs Anne (C'bridge)||Flint, Caroline|
|Campbell, Menzies (NE Fife)||Flynn, Paul|
|Campbell-Savours, Dale||Foster, Rt Hon Derek|
|Casale, Roger||Foster, Don (Bath)|
|Chapman, Ben (Wirral S)||Foster, Michael Jabez (Hastings)|
|Chaytor, David||Foster, Michael J (Worcester)|
|Chidgey, David||Foulkes, George|
|Fyfe, Maria||Livingstone, Ken|
|Galbraith, Sam||Livsey, Richard|
|Gapes, Mike||Llwyd, Elfyn|
|Gardiner, Barry||Lock, David|
|Gerrard, Neil||Love, Andrew|
|Gilroy, Mrs Linda||McAllion, John|
|Godman, Dr Norman A||McAvoy, Thomas|
|Godsiff, Roger||McCabe, Steve|
|Goggins, Paul||McCafferty, Ms Chris|
|Gorrie, Donald||McDonagh, Siobhain|
|Griffiths, Jane (Reading E)||Macdonald, Calum|
|Griffiths, Nigel (Edinburgh S)||McDonnell, John|
|Griffiths, Win (Bridgend)||McGuire, Mrs Anne|
|Grocott, Bruce||Mackinlay, Andrew|
|Grogan, John||Maclennan, Rt Hon Robert|
|Gunnell, John||McNamara, Kevin|
|Hall, Patrick (Bedford)||Mactaggart, Fiona|
|Hamilton, Fabian (Leeds NE)||McWalter, Tony|
|Hancock, Mike||Mahon, Mrs Alice|
|Hanson, David||Mallaber, Judy|
|Harris, Dr Evan||Marsden, Gordon (Blackpool S)|
|Heal, Mrs Sylvia||Marshall, David (Shettleston)|
|Henderson, Ivan (Harwich)||Marshall-Andrews, Robert|
|Hepburn, Stephen||Martlew, Eric|
|Heppell, John||Maxton, John|
|Hewitt, Ms Patricia||Meale, Alan|
|Hill, Keith||Merron, Gillian|
|Hinchliffe, David||Michael, Alun|
|Hodge, Ms Margaret||Michie, Mrs Ray (Argyll & Bute)|
|Hoey, Kate||Milburn, Alan|
|Home Robertson, John||Miller, Andrew|
|Hoon, Geoffrey||Mitchell, Austin|
|Hope, Phil||Moffatt, Laura|
|Hopkins, Kelvin||Moonie, Dr Lewis|
|Howarth, Alan (Newport E)||Moore, Michael|
|Howarth, George (Knowsley N)||Moran, Ms Margaret|
|Hoyle, Lindsay||Morgan, Ms Julie (Cardiff N)|
|Hughes, Ms Beverley (Stretford)||Morgan, Rhodri (Cardiff W)|
|Hughes, Kevin (Doncaster N)||Morley, Elliot|
|Hughes, Simon (Southwark N)||Morris, Rt Hon John (Aberavon)|
|Humble, Mrs Joan||Mudie, George|
|Hurst, Alan||Mullin, Chris|
|Hutton, John||Murphy, Jim (Eastwood)|
|Iddon, Dr Brian||Norri's, Dan|
|Illsley, Eric||Oaten, Mark|
|Jackson, Helen (Hillsborough)||O'Brien, Bill (Normanton)|
|Jenkins, Brian||Olner, Bill|
|Johnson, Miss Melanie (Welwyn Hatfield)||O'Neill, Martin|
|Osborne, Ms Sandra|
|Jones, Barry (Alyn & Deeside)||Palmer, Dr Nick|
|Jones, Helen (Warrington N)||Pearson, Ian|
|Jones, Ms Jenny (Wolverh'ton SW)||Pickthall, Colin|
|Pike, Peter L|
|Jones, Jon Owen (Cardiff C)||Plaskitt, James|
|Jones, Dr Lynne (Selly Oak)||Pollard, Kerry|
|Jones, Nigel (Cheltenham)||Pope, Greg|
|Jowell, Ms Tessa||Pound, Stephen|
|Kaufman, Rt Hon Gerald||Powell, Sir Raymond|
|Keeble, Ms Sally||Prentice, Ms Bridget (Lewisham E)|
|Keen, Alan (Feltham & Heston)||Prentice, Gordon (Pendle)|
|Keen, Ann (Brentford & Isleworth)||Primarolo, Dawn|
|Keetch, Paul||Purchase, Ken|
|Kennedy, Jane (Wavertree)||Quin, Ms Joyce|
|Khabra, Piara S||Quinn, Lawrie|
|Kidney, David||Radice, Giles|
|Kilfoyle, Peter||Rammell, Bill|
|King, Andy (Rugby & Kenilworth)||Rapson, Syd|
|Kingham, Ms Tess||Raynsford, Nick|
|Kirkwood, Archy||Reed, Andrew (Loughborough)|
|Ladyman, Dr Stephen||Rendel, David|
|Lepper, David||Roche, Mrs Barbara|
|Leslie, Christopher||Rooker, Jeff|
|Levitt, Tom||Ross, Ernie (Dundee W)|
|Lewis, Ivan (Bury S)||Rowlands, Ted|
|Liddell, Mrs Helen||Roy, Frank|
|Linton, Martin||Ruddock, Ms Joan|
|Russell, Bob (Colchester)||Taylor, Rt Hon Mrs Ann (Dewsbury)|
|Russell, Ms Christine (Chester)|
|Ryan, Ms Joan||Taylor, Ms Dari (Stockton S)|
|Salmond, Alex||Taylor, David (NW Leics)|
|Salter, Martin||Taylor, Matthew (Truro)|
|Sanders, Adrian||Thomas, Gareth (Clwyd W)|
|Sawford, Phil||Timms, Stephen|
|Sedgemore, Brian||Tipping, Paddy|
|Shaw, Jonathan||Touhig, Don|
|Sheerman, Barry||Trickett, Jon|
|Sheldon, Rt Hon Robert||Truswell, Paul|
|Simpson, Alan (Nottingham S)||Turner, Dr George (NW Norfolk)|
|Singh, Marsha||Twigg, Derek (Halton)|
|Skinner, Dennis||Tyler, Paul|
|Smith, Angela (Basildon)||Vaz, Keith|
|Smith, Miss Geraldine (Morecambe & Lunesdale)||Vis, Dr Rudi|
|Smith, Llew (Blaenau Gwent)||Ward, Ms Claire|
|Smith, Sir Robert (WAb'd'ns)||Wareing, Robert N|
|Soley, Clive||Watts, David|
|Southworth, Ms Helen||White, Brian|
|Spellar, John||Williams, Rt Hon Alan (Swansea W)|
|Squire, Ms Rachel|
|Starkey, Dr Phyllis||Williams, Alan W (E Carmarthen)|
|Steinberg, Gerry||Willis, Phil|
|Stevenson, George||Wills, Michael|
|Stewart, David (Inverness E)||Winterton, Ms Rosie (Doncaster C)|
|Stewart, Ian (Eccles)||Wood, Mike|
|Stinchcombe, Paul||Woolas, Phil|
|Stoate, Dr Howard||Wright, Anthony D (Gt Yarmouth)|
|Stott, Roger||Wright, Dr Tony (Cannock)|
|Straw, Rt Hon Jack||Wyatt, Derek|
|Stuart, Ms Gisela||Tellers for the Noes:|
|Stunell, Andrew||Mr. David Jamieson and Mr. John McFall.|
§ Question accordingly negatived.
§ Clause 3 ordered to stand part of the Bill.