HL Deb 27 November 1997 vol 583 cc1091-121

3.34 p.m.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.


Lord Henley: moved Amendment No. 63: After Clause 9, insert the following new clause—


(" . Legal aid shall be available for proceedings under this Act.").

The noble Lord said: The Committee almost began to debate Amendment No. 63 last Monday. However, following the very wise intervention of the noble and learned Lord, Lord Simon of Glaisdale, who suggested that that was not necessarily the right time to debate such important matters in a major constitutional Bill, it was agreed to defer consideration of this particular amendment until this afternoon. I am grateful that we have this opportunity so to do. I hope that without too much trouble we shall complete this Bill today and get through the remaining amendments. Certainly, we on these Benches will give every possible assistance to achieve just that.

I have tabled this amendment purely as a probing amendment in order to put to the noble and learned Lord the Lord Chancellor a number of questions relating to legal aid and the Human Rights Bill. I detailed some of those questions when the noble and learned Lord was putting his wig back on as we were discussing the suggestion of the noble and learned Lord, Lord Simon of Glaisdale. I repeat them now. Perhaps the noble and learned Lord will tell us a little more about what he said in his speech in Cardiff. Bearing in mind that that speech was made in Cardiff, I should be grateful to hear more in this Committee. Can he also say a little more about the separate fund amounting to £4.5 million that he proposes to establish for human rights issues? Will that apply only to England—which I understand is as far as his writ runs on legal aid—or will it also apply to Scotland, or will there be a separate fund for Scotland?

Can the noble and learned Lord say something more about the Green Paper? I have asked about Scotland. Can he inform the Committee about the arrangements for criminal actions as opposed to civil proceedings? I imagine that different arrangements will have to be made. As to the Green Paper and its timing, since I first asked these questions on Monday I notice that the noble and learned Lord has tabled a Motion for Tuesday, 9th December to take note of the proposals of Her Majesty's Government for the reform of civil justice and legal aid. I presume that he will prefer to address a number of the issues which I have raised then. I also presume that that means the Green Paper will come out some time between now and 9th December. There would be little point in having a debate without the Green Paper. In the meantime, can the noble and learned Lord expand a little on the legal aid issues that I have addressed in terms of how they relate to the Human Rights Bill? I beg to move.

Lord Goodhart

I strongly support this amendment on behalf of my party. I shall be brief because I recognise that there will be another chance to discuss this matter on 9th December. We support the proposition very strongly. In the absence of a human rights commission the right to legal aid is absolutely essential as a method of bringing human rights convention cases to court. The alternative of conditional fee agreements is wholly unsatisfactory in relation to proceedings for breach of convention rights, because often damages may not be sought at all or when they are awarded they may very well be small. In those circumstances, the practicability of conditional fee arrangements, which may work perfectly well in other circumstances, really does not exist. I should very much welcome an assurance from the noble and learned Lord that there will be a method by which public funding can be obtained for deserving cases involving a breach of convention rights.

The Lord Chancellor

I shall respond to the probing amendment of the noble Lord, Lord Henley, as best I can, but he recognises that there will be ample opportunity to discuss these matters on Tuesday, 9th December. At present legal aid is available for criminal cases, judicial review and virtually all other proceedings in the courts, except defamation. As such, if the Bill were enacted here and now legal aid would be available on the current terms in nearly all proceedings brought under the Bill.

The reforms of legal aid that I have announced. in relation to which the Government will go out to consultation—I shall describe that more fully in a moment—especially moving to a system that can better control its price and what it is spent on, will allow us to ensure that, in future, proceedings relating to rights under the Bill receive their fair share of the money available.

My noble friend Lord Williams of Mostyn reminded this place both on Second Reading and earlier in Committee that I am giving serious consideration to Sir Peter Middleton's proposal that there should be a separate fund for public interest cases, including those involving rights under this Bill. I said in my Cardiff speech on 18th October that I believed it right in principle to make special arrangements for cases that raise issues of wider public interest and that I intended to consult about the details.

When making his proposals Sir Peter had in mind test cases involving novel points of law that were likely to produce an important precedent. But there are other criteria which could bring such cases within the scope of public interest; for example, cases that could bring some specific benefit to a wider group of people. So it is important, first, to define what we mean by "public interest cases". Having done that, we need to consider the best means of ensuring that they can be litigated. Sir Peter proposed a special fund, but there may be other options. We should also think about how best to make use of the expertise of bodies like the Public Law Project, Justice, Liberty and the Child Poverty Action Group. All of these matters require detailed consideration, and it is right that government should consult as widely as possible before reaching firm conclusions.

I have never promised a Green Paper. The noble Lord is not right about that, but I do not think that that matters much. The point that I make, and repeat, is the point made by my noble friend Lord Williams on Second Reading. We cannot deal with the details or the fine-tuning until consultation has been carried out. I am planning to issue a consultation paper early next year, but my officials have already begun informal discussions with various interest groups.

The noble Lord, Lord Goodhart, made a point about the inappropriateness, as he sees it, of conditional fee agreements for claims under the Bill, which he says might generally involve no or little damages. That is a matter that we shall also be taking into account in consultations.

Lord Henley

I wonder whether the noble and learned Lord will address—I do not believe that I caught it—the questions I asked about Scotland and whether the fund he is considering will cover Scotland as well or whether there will be a separate fund for Scotland.

The Lord Chancellor

My responsibility does not extend to Scotland, so I was addressing the position for England and Wales, which are within my responsibility. I shall write to the noble Lord about Scotland.

Lord Henley

I am grateful to the noble and learned Lord for that response. I apologise for misunderstanding him. I thought there was to be a Green Paper. I understand now that it is to be a consultation document which will come out some time in the new year. We will take note of that and what the noble and learned Lord has to say on 9th December when, I am happy to say, it will not be me responding on behalf of the Opposition but one of my noble friends who is slightly more learned in the law. I beg leave to withdraw the amendment.

3.45 p.m.

Lord Simon of Glaisdale

I understood what my noble and learned friend the Lord Chancellor said, but there is an important distinction to be made. At the moment we are borrowing to satisfy our present wants. We are borrowing a vast sum of money. The previous Chancellor of the Exchequer bore down valiantly on the scale of public borrowing, and the present Chancellor is valuably following him in that course. Nevertheless, we are borrowing money to satisfy our present wants. That is money that will have to be repaid by our children and grandchildren. We should be spending borrowed money only on projects which inure to the benefit of our children and grandchildren.

In a recent finance debate, the noble Lord, Lord Desai, took an austere view. He would only allow borrowed money to be spent on investments. I venture to think that education and training are equally justifiable. But when one turns to legal aid there is another important distinction to be made. At present, the headline figure for legal aid is £1.6 billion—an enormous sum. The net figure is probably somewhat less, but it will still be at least £800 million and probably considerably more.

A good deal of that expenditure cannot possibly inure to the benefit of our children and grandchildren. Some can: the public interest cases which are identified in the Middleton Report, to which my noble and learned friend the Lord Chancellor referred, and many cases which will invoke human rights by virtue of the Bill. I venture two things: first, I regard the no win, no pay expedient to obviate the cost of the impact of cuts in legal aid to be deplorable. I said so when it was introduced by the previous government. I venture to repeat that now. In view of our forthcoming debate, it is unnecessary to go into detail, but there is an alternative which covers the same ground as the no win, no pay project; that is, the scheme produced by the Bar Council, following proposals by Justice and various other bodies, including the Conservative Lawyers' Association.

I would ask my noble and learned friend to devote his attention to that and to put behind it the same energy and mental power which has obviously gone into the framing of the Bill. We are in danger of multiplying our avenues for channelling legal aid. Surely what has been said today reinforces the pleas that were made on Monday for a human rights commission, with its agenda suitably framed. It could channel the appropriate funds to appropriate projects which invoke human rights by virtue of the Bill.

Lord Williams of Elvel

As I understand it, as a matter of procedure, the noble Lord, Lord Henley, has asked the leave of the Committee to withdraw the amendment. Although we all recognise that the noble and learned Lord, Lord Simon of Glaisdale, has strong views on this matter, that seems to be the Question before the Committee.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon: moved Amendment No. 64: After Clause 9, insert the following new clause—


(" .—(1) In Scotland, no proceedings may be brought under this Act by a party litigant except with leave granted in accordance with this section.

(2) In Scotland, no proceedings brought under this Act may be continued by a person who, since the raising of the proceedings, has become a party litigant unless, since he has become a party litigant, he has obtained leave granted in accordance with this section.

(3) Leave to bring or continue proceedings under this Act may be granted by a Senator of the College of Justice in Scotland appointed for that purpose by the Lord President of the Court of Session.

(4) The decision whether to grant leave under this section shall be made by the Senator of the College of Justice in Scotland appointed for that purpose and he shall—

  1. (a) if he considers that the documents mentioned in subsection (5) below disclose that the litigant has probabilis causa in relation to any alleged infringement of a Convention right which he seeks to invoke, vindicate or plead grant leave; and
  2. (b) in any other case refuse leave, and give reasons in writing for the refusal.

(5) The documents referred to in subsection (4) above are—

  1. (a) a draft of any writ which the party litigant proposes should be lodged in the proposed proceedings to enable the party litigant to attempt to assert any Convention right, or, as the case may be, a copy of any such writ already lodged in proceedings begun at a time when he was not a party litigant; and
  2. (b) a full written statement condescending upon the character and circumstances of the alleged violation of the Convention right which the party litigant seeks to found upon in the proceedings.

(6) In this Act "party litigant" means a person who, at the material time, is not represented, in the proceedings or for the purpose of raising proceedings, by a person who enjoys a right of audience in the Court or before the Tribunal or other body in which the proceedings are to be raised or, as the case may be, are pending.").

The noble and learned Lord said: Members of the Committee who study the Marshalled List with a keen interest will appreciate that initially the amendment was tabled only in the name of the noble and learned Lord, Lord McCluskey. Unfortunately, the noble and learned Lord cannot be here today and has invited me to support the amendment and to move it before the Committee. He apologises for his absence, but is engaged in judicial business in Scotland. I shall speak also to Amendment No. 92.

The purpose of the amendments is to draw attention to a problem which is causing an increasing level of concern to judges in Scotland, in particular to high court judges, as they seek to assess the implications of the Bill on the work of the courts—in particular, the impact of Clause 7. Their concern, which I understand, is that some cases involving party litigants (as we refer to them in Scotland) occupy long periods of court time. That has consequences for other litigants whose cases must be postponed as a result or who must wait longer for their cases to be allocated a hearing. The amendments have been seen by the noble and learned Lord, Lord Rodger of Earlsferry, the Lord President of the Court of Session, who fully supported the noble and learned Lord, Lord McCluskey, in tabling them and seeking the Government's response to the problem.

Experience in Scotland is that in recent years party litigants have come before the courts in increasing numbers. In some instances, their cases are one-off disputes with individual local authorities or a government department. However, in other instances a controversial piece of legislation, such as the poll tax legislation, or a controversial new project, such as the new Skye bridge, has increased their numbers. As their numbers have increased so has the volume of court time which their cases have taken up.

Some party litigants have points of great substance. All tend to have a considerable knowledge of the facts of the particular case. If they also identify substantial points of law many advocate their arguments with great skill and a considerable measure of success. Those who are less able receive in Scotland, as no doubt in England, every possible assistance from the judge and any lawyer who may be appearing for another party. Such cases are not the problem faced by the Scottish judges.

The problem relates to those party litigants whose cases have no substance. As was mentioned on the first day of Committee by the noble Lord, Lord Williams of Mostyn, some cases are less meritorious than others. Unfortunately, when party litigants are concerned, cases without any discernible merit raised in a lower court are taken on appeal to an appellate court and consume a considerable amount of court time. The problem is that the party litigant concerned soldiers on with his case with no prospects of success, arguing irrelevant points of law, not understanding the factual issues which arise and, unfortunately, resistant to any guidance or assistance which the judge is able to give.

Many such people would qualify for legal aid if there were merit to their case, but because in many instances they are engaged in a crusade, some strike one as litigating as some form of hobby. They resist any guidance to see a lawyer and the suggestion that they should apply for legal aid. As a result, in some instances the courts are becoming unnecessarily bogged down.

Some Members of the Committee may believe that it is no hardship for judges to have to sit and listen to such individuals, many of whom have suffered in one way or another, and that it is part of a good system of justice to hear them out with as much patience and courtesy as possible before dismissing their applications or refusing whatever motion for damages or declarator order they may make. Some people may believe that judges have to do that. However, the problem is that in doing so there is an unfortunate knock-on effect on the court timetable.

The view that has been represented to me is that, in days when the courts, like all public bodies, are under financial constraint and increasing pressure from members of the public and others to provide a good service to litigants, to shorten the waiting time for a final hearing and to resolve cases as quickly as possible, the party litigants are frustrating those objectives to an undesirable extent. They are causing others to incur unavoidable delay.

The amendments have been tabled against that background. It is believed by the noble and learned Lord, Lord McCluskey, and his colleagues that the proposal would be of assistance. In Scotland, as opposed to the practice in England, there is no requirement for leave to be sought in applications for judicial review, nor is there any time limit within which such applications can be brought. The judges believe that measures along the lines proposed, which are designed to provide a screen or sift to enable a single judge to reject at the outset an application which plainly has no reasonable prospect of success, would merit serious consideration. In other parts of court procedure in Scotland—for instance, in connection with criminal appeals—there is a sifting procedure which has achieved a reduction in the number of cases going to a court hearing and consequently a speeding up of the cases which proceed.

The judges inform me that they fully accept that the amendments may not be the best or the only way of addressing the problem. I can see a measure of difficulty with the precise detail of what is put forward. However, the issue is raised because it is causing serious concern and I hope that in reply the noble and learned Lord the Lord Advocate will explain the Government's reaction to the amendments. I beg to move.

Baroness Carnegy of Lour

Members of the public are aware of the problem as a result of reading newspapers. Groups and individuals can cause problems as described. Will the noble and learned Lord the Lord Advocate tell the Committee whether such a problem exists south of the Border? If so, perhaps the Government will consider the amendment with a view to widening the provision.

4 p.m.

The Lord Advocate (Lord Hardie)

Perhaps I may first deal with the point raised by the noble Baroness, Lady Carnegy. I understand that in England, as in Scotland, there are occasionally problems with party litigants. However, I understand that those problems are dealt with by the judges and the lawyers concerned. It is a question of the judges managing the cases properly. I do not understand there to be a serious problem in England because the judges do manage the cases.

I have listened carefully to the argument advanced by the noble and learned Lord in support of the amendments, which I note have effect only in Scotland, as the noble Baroness observed. However, the noble and learned Lord has failed to persuade me that, by accepting the amendments, I should not discriminate to an unacceptable extent against a party who chooses, for whatever reason, to represent his own interests before a court or tribunal in Scotland. That would be so even if it fell to the tribunal adjudicating on the convention right in question to assess the merits of a party litigant's claim.

The entitlement to vindicate one's legal rights in person is fundamental to our legal system and is, indeed, specifically entrenched in the case of criminal proceedings, in Article 6 of the convention. The effect of these amendments would be to impose a significant hurdle in the way of a party who chooses to avail himself of his right to appear on his own behalf when no similar obstacle is put in the way of the represented party. The requirement for application to the Court of Session as opposed to the tribunal adjudicating upon the convention right merely increases the size of that hurdle. It would be particularly unfortunate in the criminal courts in that a defendant would be unable to use his rights without leave.

I should like to give your Lordships a practical example of the discriminatory effect of these amendments. If a convention right became an issue in proceedings before an industrial tribunal, a party representing himself would be put to the considerable trouble and expense of seeking leave from the Court of Session to continue to represent himself when arguing the convention point before the tribunal. Delay, too, would be inevitable. I am sure that the Committee will agree that delay is in no one's interest. At the same time another party, who might be represented before the tribunal by a trade union official who would have a right of audience before that tribunal, would not need to seek leave. That would be patently discriminatory.

I understand fully the noble and learned Lord's concerns and the concerns of the judges that there is a risk that the courts will be burdened with spurious claims in respect of convention rights which might not have been raised if the party making the claim had access to legal advice. I cannot, however, accept the proposition that the way to deal with such claims is to create a system which favours the represented party by creating a barrier for the unrepresented. The unrepresented party, after all, is in need of greater assistance than the represented party in vindicating his rights and it is my understanding that the courts in Scotland and tribunals sitting there have a long and honourable tradition of support to the litigant who chooses to appear in his own behalf. Indeed, opposing counsel has a duty to draw to the attention of the court cases and authorities in favour of the opponent, particularly when the opponent is unrepresented. The creation of obstacles which only the party litigant is required to surmount would not be consistent with that fine tradition in Scotland.

In addition, I should mention that there is already a mechanism in place which enables the Lord Advocate to seek to have access to the civil courts by a vexatious litigant restricted, and this can be used to ensure that leave is required in the case of persistent litigants in convention cases as in any other case.

There are three further points that I wish to make. The first relates to the point made by the noble and learned Lord, Lord Mackay of Drumadoon, that in Scotland, unlike England, there is no need for leave of the court to present a petition for judicial review. The noble and learned Lord is correct to say that, but there is an exception. If a party litigant wishes to present a petition for judicial review, he requires to obtain the consent of the court to lodge the petition. Therefore, there is a requirement of leave in the case of a party litigant in that situation.

The next point that I wish to make is that the amendments are contrary to the Government's stated policy of "bringing rights home". They would make it more difficult for a person to enforce his rights in our domestic courts, in that he would be able to do so only if he were legally represented unless the Court of Session separately conferred a right on that person, a right which he has in any event.

Finally, as I observed at the outset, the amendment relates only to proceedings in Scotland. The position of a party litigant in Scotland does not differ significantly from the position in England and Wales. The imposition of such a burden on parties in Scotland alone would be discriminatory between the two jurisdictions.

As I hinted earlier in my answer to the noble Baroness, Lady Carnegy, the position can be resolved by the judges managing cases. It is for the judges to take control of cases which come before them. If they perceive that people are abusing process, it is a matter for them and the remedy is in their hands. They can take steps to ensure that cases are conducted properly before the courts.

I hope that on further consideration and in the light of my comments, the noble and learned Lord is now persuaded that he should seek leave to withdraw the amendment.

Lord Mackay of Drumadoon

I am most grateful to the noble and learned Lord the Lord Advocate for his very full response to the amendment. I know that everything that he said will be read with great interest by the senior judges in Scotland.

I should like to think that up until now they have done everything they can to manage cases to the best of their ability. I am sure that the noble and learned Lord and I, in the course of our careers, have appeared against party litigants and we did all that we could to assist.

As I observed earlier in this Committee stage, there is less of a warm welcome for this Bill north of the Border than may be apparent here. As is reflected in this amendment, there is some concern in relation to the practical impact on the courts. Picking up from what my noble friend Lord Henley said on the last amendment and what I said on Monday night, I hope that, before long, the Government will be able to tell us all in Scotland which courts will have jurisdiction to entertain those proceedings and what the legal aid position will be, since that may well help the court in addressing the problems which lie behind the amendment.

In the meantime, however, in the light of the very full response for which I thank the noble and learned Lord the Lord Advocate, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Power to take remedial action.]

[Amendment No. 65 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 66: Page 6, line II, after ("rights") insert ("and either—

  1. (i) the period within which an appeal may be brought against the relevant judgment has expired, or
  2. (ii) no further appeal lies to a British court from the relevant judgment").

The noble and learned Lord said: This is a comparatively short amendment which seeks to introduce into Clause 10 a requirement that before a Minister of the Crown or Her Majesty in Council could pass to the making of a remedial order following upon a declaration or declarator of incompatibility in terms of Clause 4, the period for appealing against that declarator would require to be expired or no further appeal to a British court from the judgment giving that declarator could exist.

The purpose of the amendment is relatively simple. It is to restrict the use of remedial orders following upon a declarator or a declaration and prevent it being used if there is any possibility of the judgment of the court being successfully appealed against. In terms of the Bill, as is clear from Clause 4, it will be competent for courts in both England and Scotland, and Wales and Northern Ireland for that matter, to grant declarator which could then be the subject of appeal to the Appellate Committee of your Lordships' House. It takes some weeks, and in many instances some months, for those appeals to be completed. It would be unfortunate in the extreme if, following upon a declaration being granted, a remedial order was then proceeded with if the decision of the High Court in England or the Court of Session in Scotland was to be overturned and the legal justification for proceeding with the declaration evaporated.

I readily accept that, when a declaration is granted, the Government and their legal advisers would no doubt consider the situation most carefully before passing to exercise the powers which are to be found in Clauses 10, 11 and 12 of the Bill. Nevertheless, there is an argument that we should do all that we can to ensure that there is no unnecessary conflict between the courts, on the one hand, and, on the other, the Government. It is against that background that I beg to move.

Lord Williams of Mostyn

I entirely understand the concern which lies behind the amendment, which was amply described by the noble and learned Lord; namely, what if the relevant Minister seeks to initiate the fast-track procedure in response to a declarator or declaration of incompatibility, only to find that the declaring court is overturned or varied on appeal? We believe that such a situation would be most unlikely to arise in practice because it is a discretion that the Minister has to introduce the fast-track procedure. I would find it hard to envisage circumstances in which the Government would want to exercise the power conferred by Clause 10 before the appeal process had been concluded.

Nevertheless, I recognise the concern behind the amendment. Perhaps I ought to take the matter away, consider whether a limitation of the kind suggested should be made on the face of the Bill—but I am bound to say that, as at present advised, it may not be—and also consider whether the present drafting might need a little attention.

Lord Mackay of Drumadoon

I am grateful to the Minister for that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Lord Coleraine: moved Amendment No. 66A: Page 6, line 13, after ("Rights") insert ("made against the United Kingdom after the coming into force of this section").

The noble Lord said: I move the amendment partly as a probing device. During the debates that I have listened to in our Committee proceedings, I have been struck by how many speakers have claimed to be the first lay person to address the Bill. My own claim might be that 1 am the only lawyer speaking about the legislation who can claim, in the context of the Bill, to be a lay person. The Government may feel that consultation about the terms of this Bill has been going on for more than 20 years, both inside and outside Parliament. But I would make a different claim and say that, in view of the way that the Bill is going to affect every man, woman and child in this country, especially those who may find that they are being challenged by public interest groups on the ground that they are public authorities, effective consultation has been minimal and inadequate.

To date, the only reply to that point has been that it is up to lawyers to get themselves up to date and understand the workings of the convention very thoroughly. I should point out that that is not much help to a body which unwittingly finds, before it has had a chance to take legal advice, that it is being challenged by public interest groups on the grounds that it is a public authority.

I find myself at the foot of a very steep learning curve, and about my amendment I would say that it addresses, first, whether Clause 10(1)(b) should apply retrospectively to allow an administration to find grounds for invoking the fast-track procedures in order to comply with the findings of the Court of Human Rights which were made before this clause will come into effect. I do not know when the clause is expected to come into effect, and perhaps the Minister will be able to tell us. However, if paragraph (a) cannot operate retrospectively, then paragraph (b) should not. But that is not my main point.

The wording of the subsection is such that a United Kingdom administration could invoke the clause in respect of any finding of the Court against the United Kingdom, however long ago made. In addition—and it will not have escaped notice that my amendment thrusts in two directions—findings against other member states of the Council of Europe, whenever made, whether before or after the coming into force of this clause, may tempt an administration to take the short-cut, fast-track way through Parliament by saying that the finding of the Court against another country, perhaps made some years ago, shows that a provision of our legislation is incompatible with our obligations under the convention.

The Notes on Clauses tell us that paragraph (b) applies to adverse decisions in United Kingdom cases. When the Minister replies, it is possible that he will tell us that this is clearly provided for in the Bill and that there is no question of any other interpretation applying. I gain the impression that that is indeed what he is going to tell the Committee.

Under the clause, the Minister does not have to show that he is legislating to fill the gap in our human rights legislation pointed to directly by the finding of the Court, which the United Kingdom is bound by treaty to fill. He merely has, having regard to any finding of the Court, to decide that a provision of our legislation is incompatible with one or more of our obligations arising from the convention. I suspect that a Minister, if allowed to do so, could made such a decision perfectly reasonably on frequent occasions. All I would suggest is that he should not be allowed to take the fast-track if he did so.

In the case of legislation intended to make our laws comply with a specific finding of the Court against us, there is nothing in the Bill to prevent the administration carrying out an audit and carrying other statutory amendments on the back of the fast-track procedure beyond those required by the finding of the Court of Human Rights. That possibility is illustrated by the Chahal case and the recent passage through this Chamber of the Special Immigrations Appeals Commission Bill. I need not go into the details, but my noble friends Lady Blatch and Lady Anelay of St. Johns referred to the fact that the Bill went further than was required in order to respond to the Chahal case.

Yesterday in another place that Bill received its Third Reading and, because of amendments made in that place, it still has to return to this Chamber for further consideration. My honourable friend Mr. Clappison, looking ahead to the arrival of the Human Rights Bill in another place, pointed out that this was one more reason why it was most important that the Houses of Parliament should be able to give the fullest possible attention to amendments to human rights legislation, which should be subject to full parliamentary scrutiny and debate and, indeed, be susceptible to amendment.

I see no reason to question the good sense of legislating outside and beyond the strict requirements of a finding of the Court against us, wherever appropriate. I also realise that the Government, were they to have introduced the legislation necessitated by the Chahal case after the coming into force of this Bill, might not have used the fast-track procedures. I say that they "might not", but I do wonder. The temptations facing an administration, when it is a question of by-passing or marginalising Parliament, are hard to resist.

It seems to me that Clause 11 of the Bill gives wide powers to an administration to legislate beyond what is required by a specific finding of the Court of Human Rights, and that paragraph (b) of Clause 10(1) of the Bill needs further scrutiny. I beg to move.

Lord Goodhart

In my party we see some force in that part of the amendment moved by the noble Lord, Lord Coleraine, which restricts the operation of the fast-track procedure to decisions made after the coming into force of the clause. What we take issue with is that part of the amendment which restricts the fast-track procedure to decisions made against the United Kingdom. It is clear from the existing provisions of Clause 10 that if, it appears to a Minister of the Crown … that, having regard to a finding of the European Court of Human Rights, a provision of legislation is incompatible with one or more of the obligations of the United Kingdom arising from the Convention", the fast track procedure under Clause 10 applies. It would certainly appear that that would apply to a decision not only given against the United Kingdom but against another country too. Indeed it is perfectly appropriate and reasonable that it should.

What is the position if the judgment given against some other country shows that some provision of United Kingdom legislation is clearly incompatible with the European convention? The position then is that the Minister will have two options. He can either proceed in the ordinary way by primary legislation, which will require finding a place in the queue—and that may well be difficult—or he has to wait until someone in this country sees fit to litigate, or seeks to litigate, exactly the same point in the European Court. At the end of that proceeding he will then, but only then, be able to make use of the fast-track procedure.

Indeed it is quite possible that the petition of an applicant in that position to the European Court might be held to be inadmissible because the law had already been clearly established by the previous decision against a different country. It certainly seems to us that where a decision against another country makes it clear that some provision of United Kingdom legislation is incompatible with the convention, the Minister in those circumstances should be entitled to consider whether to make use of the fast-track procedure, and do so if he thinks fit.

Lord Mackay of Drumadoon

As I had understood the provisions of Clause 10(1)(b) with the benefit of the Notes on Clauses, the policy of the Government is that the finding referred to is a finding against the United Kingdom. If that be the case, I suggest to the Minister who is to reply to this amendment that the speeches we have just listened to from the noble Lords, Lord Coleraine and Lord Goodhart, make it clear that another construction of the clause is possible. I readily accept that. There clearly is some doubt about this. This may be another clause which merits some further consideration.

Lord Williams of Mostyn

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

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

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

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

Lord Coleraine

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

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 67:

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

The noble Lord said: I move this amendment in the unavoidable absence of my noble friend Lord Lester of Herne Hill, who very much regrets that he is unable to be here today. This amendment has the relative merit of being more or less self-explanatory. It requires a Minister to make a statement, giving reasons as to whether or not he will exercise the power conferred by subsection (2)",

of Clause 10. Clause 10(2) states, If a Minister of the Crown considers that, in order to remove the incompatibility, it is appropriate to amend the legislation using the power conferred by this subsection, he may by order make such amendments to it as he considers appropriate".

That is the bare bones of the matter, but a Minister should be required, first of all, to consider whether he will exercise that power with reasonable speed. He should then proceed to announce that decision, whether favourable or not, and he should give reasons for it, again whether favourable or not. That is more important when his decision is unfavourable.

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

Secondly, there will be no opportunity for Parliament to be informed of the Minister's decision and there will be no possibility of debating that decision in the absence of any reasons being given, even if it is informed of that decision. In those circumstances, I ask the noble and learned Lord the Lord Chancellor seriously to consider introducing a measure which specifies in more detail the obligations of the Minister in exercising his powers under Clause 10(2). 1 beg to move.

4.30 p.m.

Earl Russell

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

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

It would be easier to engage in an informed discussion about a certificate of incompatibility. Occasionally informed discussion may be needed. If the Minister were prepared to kick off that informed discussion by coming to Parliament and saying what he thought about the matter and what he proposed to do about it, it would be in the interests of justice.

Lord Williams of Mostyn

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

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

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

Earl Russell

Perhaps I may add a few further words. I agree that there is a power to question Ministers. Let me remind the Minister of another Motion which was carried in this House. On 6th July 1992 there was a Motion in the name of the noble Lord, Lord Henderson of Brompton, about board and lodging in bed and breakfast accommodation. The power to question the Minister was exercised when he failed to respond to that Motion. The year 1992 is quite some time ago, but nothing has happened yet.

Lord Williams of Mostyn

Perhaps I may deal briefly with that point. The position would be no different if the amendment were carried. The amendment simply requires the Minister to come to Parliament and answer questions. It does not require him to follow a certain course of action. Therefore the net result would be exactly the same.

Lord Goodhart

The answer by the noble Lord, Lord Williams of Mostyn, has not wholly covered the situation of the applicant who is faced with a potentially long delay if there is no obligation to bring forward a decision and to announce reasons for it. However, in the circumstances, I do not press the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ackner moved Amendment No. 67A:

Page 6, line 15, at end insert— ("( ) After a declaration of incompatibility has been made the Minister may grant such relief to the person in whose case the declaration was made or to any other person as shall seem to him just.").

The noble and learned Lord said: The amendment is short and simple. It is in the nature of a probing amendment. I can put the substance of it within a few minutes.

The heading to Clause 10 is, Power to take remedial action". Amendment No. 67A and the amendments grouped with it seek to provide the opportunity for the Minister to take remedial action, which is full and effective by way of remedy, rather than the limited activity provided for in Clause 10. The Minister should be able to grant such relief as he considers just and appropriate to the person who is party to the proceedings in which the declaration or finding of incompatibility has been made; and indeed to any other person who a Minister considers is similarly affected. I seek to inquire why remedial action is as limited as it is in this clause. I beg to move.

Lord Goodhart

Amendments Nos. 67A and 70 give the Minister a discretionary power to award compensation to a claimant where there is a declaration of incompatibility. Under Clause 8, such a claimant is not eligible for compensation or damages because there is no finding that there has been an unlawful act. Clearly a declaration of incompatibility is not a finding that there has been an unlawful act.

It is desirable that a power to award compensation should exist. It may well be that in the circumstances there is power to make an ex gratia payment in exercise of the prerogative but it is surely better to give that power a statutory basis. It will of course still remain discretionary.

Amendments Nos. 69, 75 and 78 are required through the failure to incorporate Article 13 of the convention. That has already been discussed. New legislation introduced under the Clause 10 procedure must clearly provide an effective remedy for victims; otherwise it will simply not be doing its job. Amendment No. 78 is added because it is for the victim that the remedy must be provided. That is a different situation. For example, an interest group should be able to raise the question of convention rights. There is no question of an interest group seeking a remedy for itself. The remedy must be a remedy for the victim. Therefore I ask the noble and learned Lord the Lord Chancellor to consider the amendments which are grouped together in order to clarify what is not sufficiently clear in the legislation as it stands.

The Lord Chancellor

In speaking to Amendment No. 67A, I speak also to Amendments Nos. 69, 70, 75 and 78. I appreciate that these amendments are of a probing nature. Amendment 69 would explicitly provide that the power to amend legislation by means of a remedial order should include the power to make amendment so as to provide effective remedies for victims of an unlawful act.

There are several difficulties in making remedies of this kind subject to a statutory provision in the manner proposed. First, the amendments could extend the scope of remedial orders wider than is desirable. The specific purpose of these orders is to put right incompatible legislation. It is for this purpose that we have concluded that the power to amend primary legislation by order is necessary. The amendments proposed would bolt on remedies for individuals of a wholly different character from remedies which are designed to put right incompatible legislation to make it compatible. Individual remedies do not naturally fit into that. The amendments would open up the prospect of legislative amendments being made by order under the Bill but having a much wider extension than the present drafting of the Bill permits.

As at present advised, we think that that would create too sweeping a provision. It would threaten the ability of the Minister to consider whether and to what extent a retrospective remedy was required by the facts of the case; and it would threaten the sovereignty of Parliament, since any order for its approval would be bound to contain such provisions. It is no answer to point to the words, such amendments as may be appropriate and necessary". We believe that in practice those words would entail a presumption that a remedy would always be necessary.

We think it more appropriate for decisions on what remedy should be given to individuals affected by a particular act to be taken by the Government in light of the individual circumstances of every case—and they will vary infinitely. There are existing ways in which this could be achieved. For example, should it be thought necessary for a remedial order affecting the legislation to take effect from a date earlier than that on which the order was made, this will be possible under the Bill; Clause 11(1)(b) so provides. This will not of itself provide a direct remedy to individuals affected by the legislation which has been retrospectively amended; but, following the order, it may be open to them to seek such a remedy. In addition to these powers in the Bill, there are prerogative powers which can be exercised and other ex gratia actions that could be taken to grant remedies in appropriate circumstances.

Amendments Nos. 67A and 70 take a slightly different approach. They suggest making explicit the power of the Minister himself to grant a remedy, in addition to and alongside a remedial order remedying an incompatibility in the legislation. This is not necessary unless the intention is to broaden the means available to the Minister. It is not clear what kind of power it would be. There is a danger that the prerogative would to some extent be superseded by this statutory provision. We think it unwise to tinker with the prerogative without being clear about what the impact would be.

For all those reasons, we are not persuaded that the proposed amendments are beneficial and we invite noble Lords to consider withdrawing them.

Lord Ackner

I am grateful to the noble and learned Lord the Lord Chancellor for his very full explanation, which I should like to consider with a view to returning to the matter, if necessary, on Report. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Lord Campbell of Alloway moved Amendment No. 67B:

Page 6, line 16, leave out subsections (2) to (5) and insert— ("( ) If a Minister of the Crown considers that, in order to remove incompatibility it is appropriate that legislation should be amended, he may—

  1. (a) as regards primary legislation, introduce an amendment bill in either House of Parliament; and
  2. (b) as regards subordinate legislation, make a draft order containing the proposed amendments, which order shall be laid before Parliament and subject to approval by resolution of each House.").

The noble Lord said: The object of this amendment and the grouped amendments that Clauses 11 and 12 do not stand part of the Bill is straightforward and simple. It is to remove the fast-track procedure under which it is proposed to amend primary legislation by Order in Council and to retain the traditional parliamentary process for amending primary legislation which has served us so well for so long.

This amendment to Clause 10, which is concerned with remedial action to assimilate the convention with our domestic law, retains Clause 1(a) where a declaration of incompatibility under Clause 4 has been made in our courts. It also retains Clause 10(1)(b) where a decision of the European Court of Human Rights has given rise to incompatibility. However, subsections (2) to (5) relating to the fast track are removed. If the amendment were to be accepted by the Committee, Clause 11, concerned with remedial orders, and Clause 12, concerned with procedure, cannot stand part of the Bill.

The machinery proposed for the implementation of the fast track under Clause 10, subsections (2) to (5), Clause 11 and Clause 12 disturbs the delicate balance which separates the powers of the legislature from those of the judiciary. It is without the constitution as it has so far evolved, which has as yet not adopted this novel approach to law-making—an approach which is not necessary, satisfactory or sound. There was no reference to this fast track in the Labour Party Manifesto; there is no mandate for its introduction.

The amendment to which I speak is a procedural one which in no way challenges the principle of the Bill. Incorporation of the convention without any direct assault on the sovereignty of Parliament to provide a domestic remedy in our courts is wholly acceptable. The means proposed for implementation by the fast track is not acceptable. It is only the proposed means of procedure which the amendment calls into question.

Members will appreciate that the Bill, and the amendment, are of vast constitutional importance to every one of Her Majesty's subjects and to every institution within the realm whose functions are of a public nature. In the light of last Monday's debate on Amendment No. 40, in the name of my noble friend, Lady Young, it is apparent that all institutions whose functions are of a public nature are subject to the fast track unless it is established to the satisfaction of the courts that the exercise of a particular function was of a private nature. The question whether the function of the institution was of a public nature and whether the exercise of a specific function was of a private nature would be decided on the facts of each case. It is not clear where the burden of proof on either question would lie.

In the course of debate it became apparent that this fast-track procedure was of concern to the established Church and to other religious institutions, for the set of rights and obligations to be incorporated had explicit and implicit moral overtones. The right reverend Prelates, the Bishops of Exeter and Lichfield, observed that the decisions of the Synod, albeit ethical, had the quality of primary legislation and were not of a private nature.

In the context of the fast-track procedure, the Committee will be aware of the sixth report of the Delegated Powers and Deregulation Committee, in particular paragraphs 22 to 25, concerning resort to Henry VIII powers. My noble friend Lord Henley sought an assurance from the Lord Chancellor that he would abide by the recommendations of that all-party Select Committee. The noble and learned Lord declined to give any such assurance. However, in opening a debate it is hardly appropriate to stray into the area of storm-tossed seas of contention and so I pass on.

On Second Reading the noble and learned Lord the Lord Chancellor conceded that, A power to amend primary legislation by (Order in Council] is not a power to be conferred or exercised lightly".—[Official Report, 3/11/97; col. 1231.] As yet no justification has been advanced for so doing. On Second Reading reservations were expressed by many noble Lords. My noble friend Lord Kingsland explained why the means of incorporation were of critical consequence and concluded in a closely reasoned exposition why the fast track failed to afford proper parliamentary consideration for future legislation. The noble and learned Lord, Lord Wilberforce—I am delighted to see him in his place—expressed reservations as to the effect of the fast track on substantive law; as to calling upon judges to undertake functions normally suitable for Parliament and as to the interpretation of vague phrases in the convention in concrete cases. He referred to vague phrases such as "private life" and "family life", not defined in the convention. Reference has already been made to "public authority" where the incidence of fast track is left open, without any statutory exclusion, to be decided by the courts on the specific facts of each case.

It is no easy task to amend primary legislation to reflect declarations of incompatibility on the facts of concrete cases; to assimilate and thereby achieve compatibility with the convention. Law-making on the hoof, in particular in these circumstances, has inherent incalculable hazards. Is it not better to take time to get it right? Has not due parliamentary process that very propensity? As part of such process no doubt a Select Committee of your Lordships' House, chaired by a noble and learned Lord with other noble Lords and noble and learned Lords as members, could report on the form an amendment to primary legislation should take to reflect the judicial declaration of incompatibility. That would be an invariable source of guidance for both Houses in the interests of the country.

One must be realistic. It is idle to seek accommodation on this amendment. The gulf is too wide. But the Committee may wish to consider in due course whether, in the light of this debate today, any justification has been advanced for the abrogation of due parliamentary process for the amendment of primary legislation. I beg to move.

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 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 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 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.

Lord Thomas of Gresford

Perhaps I may seek to justify my attitude in support of the fast-track procedure. I have some experience of the Hong Kong Bill of Rights, which was introduced by the previous administration through the Hong Kong administration in the late 1980s. Under that Bill it was possible for the judges to strike down incompatible legislation altogether. That, of course, was in a society where democracy was very much in its infancy and where there were not the same safeguards of elected representatives such as we have in this country. It had the overwhelming advantage of giving an immediate remedy to the person who was the subject of the particular piece of legislation which was incompatible with the Bill of Rights.

For example, I recall that immediately the judges struck down as incompatible certain presumptions which had been inserted into the drugs ordinance, which bore down harshly on individuals who were charged with offences under that legislation. Similarly, the judges took the opportunity to strike down the equivalent of what we knew in this country as the "sus" laws, where a person was arrested in the street merely because a police officer suspected that he might be about to commit a crime. That was an immediate solution and advantage to the person who was affected by that legislation. The judge could deal with it then and there.

What is proposed in the current Bill, as we discussed earlier this afternoon, is that the victim should have no such immediate remedy. Amendments were moved to that effect a moment ago but they were withdrawn. The Government have indicated that they do not believe in incorporating in this Bill a remedy for the victim who raised the issue and obtained the declaration of incompatibility. However, it means that there are other people who may be affected by that legislation, which is incompatible. It can cover a wide area. It is not just the criminal law; it may involve the tax laws, with people incurring liabilities to pay large sums of money. It may cover all sorts of areas of the law which very much affect the individual. Therefore, an immediate remedy for other potential victims of incompatible legislation is required.

In his usual excellent way, the noble Lord, Lord Campbell of Alloway, has raised a very important issue. But the introduction of primary legislation to amend incompatible legislation involves delay in getting it into the programme. The fast-track procedure means that potential victims can be given an immediate remedy. It is for that reason that I justify the fast-track procedure, as my noble friend Lord Goodhart said, as an in-between stage, between the judges having the power to strike down legislation immediately and the delay involved in introducing fresh primary legislation. We have here a compromise which is well thought out and which deserves our support.

5.15 p.m.

The Lord Bishop of Exeter

I do not wish to take a position in relation to the amendment of the noble Lord, Lord Campbell of Alloway. I hope that the Committee will be patient while I repeat a question that I put in relation to Amendment No. 40 on Monday. It is simply to ask for an assurance that the Government recognise, as regards the proposed workings of the Bill, that it is a unique position concerning the making of laws for the established Church, namely, that all the work and its stages is done in the General Synod. It is then presented to Parliament to be scrutinised by the eccessiastical committee. It is not debated on the Floor of House unless Members desire that. That is an almost unique way of making law for a particular part of the country's constitution. I know that attention will be given by the General Synod to the progress of this Bill, which it became aware of only earlier this week, as far as it affects the established Church. It would be helpful if the Government could give recognition to the procedure which is part of our constitution.

Earl Russell

Perhaps I may very briefly respond to the noble Baroness, Lady Carnegy of Lour. She reproached these Benches for not letting people know what is going on. But the noble Baroness was talking as though the Bill were introducing new legal obligations. These matters have been our legal obligation for 46 years. Should there be a declaration of incompatibility, it would put me, in my parliamentary capacity, in much the same position as I would be in in my personal capacity were a judge to discover that, for some technical reason, my marriage had been invalid. I would of course go straight off and do it again! I would not feel the need to tell everybody what was going on because I would assume that they knew already.

The Lord Chancellor

It is entirely right, as the noble Lord, Lord Henley, and others have said, that the noble Lord, Lord Campbell of Alloway, should bring this important point for discussion before the Committee. However, the noble Lord, Lord Goodhart, is right, I suggest, when he says that in substance this is a direct frontal attack on the fast-track procedure. I recall that the noble Lord, Lord Campbell of Alloway, said during a Committee stage last week that he was concerned with the end rather than the means. I am sure that the noble Lord himself would be the first to acknowledge what his end is as regards Clause 10. He has already signalled that he intends to oppose it, and this amendment, if it were carried, would achieve the same end but by different means. In that sense I believe that the noble Lord would be constrained to agree with me if I were to describe it as an intended wrecking amendment.

I am grateful to the noble Lord, Lord Goodhart, and other Members of the Committee on his Benches for saying that they strongly support the principle of the fast-track procedure. I welcome that. I fully appreciate that there will be amendments which they will be supporting, aimed, as they will argue, at strengthening or improving the fast-track procedure.

I am conscious that the noble Earl. Lord Russell, is traditionally hostile to Henry VIII clauses. His hostility is well known and, perhaps I may add, "without peer". It is for that reason that I particularly welcome his support. I remind the Committee that before any remedial order is brought before your Lordships for your consideration, it will have been preceded by a reasoned judgment of a higher court—perhaps the very highest court—which will have made the declaration of incompatibility. The legislation in question will have been scrupulously analysed, the point identified and the need for the declaration made as clear as the higher court can make it. Therefore, in a sense this is first-class briefing material so that your Lordships may focus your attention on the need for the order. That is an important reason for regarding this use of the Henry VIII clause as a legislative development which is sensible and designed to serve, not hinder, parliamentary sovereignty.

I now speak having been chairman of the Queen's Speech and Future Legislation Committee for the past seven months. I am acutely conscious of the pressures on the legislative programme. This is a very extended legislative programme and the next legislative programme will be similarly very extended. There will be competitive bids. Priorities will have to be determined by the committee that I chair. I am afraid that when I hear it said that it is easy to get something into the legislative programme if the will is there, I feel that that does not respond to the realities of a legislative programme which is inevitably under pressure.

Baroness Carnegy of Lour

I hope that the noble and learned Lord will forgive me for intervening. I do so with the utmost respect because he knows that I am an amateur on such matters. However, is he absolutely sure that he is not putting the interests of Parliament and the business managers in front of the need of the people of this country to understand the changes that are to be made in the law? I entirely understand the noble and learned Lord's point I can imagine the pressures—but surely we should be vigilant about this. Is the noble and learned Lord quite convinced that that is the case?

The Lord Chancellor

I am absolutely convinced that this House will be well informed of the need for change by the fact of the judgment of the higher courts which will set out the need for change. I venture to suggest that the purpose of a remedial order is to give Parliament the earliest possible opportunity in a considered way to remedy an incompatibility between a statute passed by Parliament (in all probability, inadvertently) and the European Convention on Human Rights, to which the United Kingdom is a party. Far from trenching on parliamentary sovereignty, I think that that gives Parliament the earliest legislative opportunity to remedy in a focused way an incompatibility which was probably the product of parliamentary inadvertence, not intention.

I turn to the amendment proposed by the noble Lord, Lord Campbell of Alloway. Amendment No. 67B would remove all but subsection (1) of Clause 10. It would therefore destroy the mechanism of remedial order which we have put in place. Paragraph (a) of the proposed amendment provides that if there is incompatible primary legislation, an amendment Bill may be introduced to remove the incompatibility. That seems to have no point at all because the Government could introduce a new Bill irrespective of any powers in this Human Rights Bill.

Paragraph (b) provides that in the case of incompatible subordinate legislation, a draft order to amend that legislation may be made subject to the affirmative resolution procedure. As the paragraph provides no specific powers to amend primary legislation, which would need to be amended in order to remove the incompatibility of inevitably incompatible subordinate legislation (because it is consequential upon an incompatible provision of the parent legislation), it too serves little purpose. Its only effect would be to supersede other provisions in parent statutes which may allow for a procedure less onerous than the draft affirmative resolution procedure. So, we cannot accept the amendment because, in substance, it wrecks.

Perhaps I may advise the right reverend Prelate that, of course, we recognise the unique position of the established Church and if any question ever arose—I venture to suggest that it is highly unlikely—of making remedial orders touching upon ecclesiastical legislation, I regard it as inconceivable that government would do that without first elaborately consulting the Church. I would have thought that the better course would be for the Church itself to do that which I am sure that it would want to do if any of its legislation had been held incompatible with the European Convention on Human Rights—that is, for the Church to amend its measures itself, subject to parliamentary approval. I can assure the right reverend Prelate that we would always be solicitous of the interests of the Church.

The noble Lord, Lord Campbell of Alloway, suggested that in our previous discussions in Committee right reverend Prelates had expressed concern about the fast-track procedure. I am not aware that they have done so. Their concern was with the definition of "public authority" in Clause 6. The right reverend Prelates had expressed an interest in that because of the interests of the Church, but not in the fast-track procedure. Legislation will be subject to the fast-track procedure, not institutions. Of course, institutions will be affected by the legislation once altered by remedial order, but where it affects their interests, they will have had the fullest notice because of the preceding argument in the courts. I am sure that that will be drawn fully to the attention of any public bodies that are likely to be affected, culminating in what I think will be a rare happening, the making of a declaration of incompatibility by a higher court. For all those reasons, I invite the noble Lord to consider withdrawing his amendment.

5.30 p.m.

Lord Campbell of Alloway

I thank all noble Lords who have spoken in this debate, including the noble and learned Lord the Lord Chancellor. I shall be brief and I hope that I shall not be thought discourteous if I do not refer by name to every noble Lord who has spoken. At least it comes as no surprise that noble Lords on the Liberal Benches took what they called "an in-between position".

Perhaps I may assure the Committee that this is not a wrecking amendment, as was said by the noble and learned Lord the Lord Chancellor. That term is loosely used on all sides of the House at times, but this amendment simply is not a wrecking amendment. It accepts the principle of the Bill, so, technically, it cannot be a wrecking amendment. It opposes the proposed means—the fast track procedure—and in that sense it is a wrecking amendment, but in parliamentary terms it is not.

The noble and learned Lord raised some technical objections. So be it. This is DIY drafting. I had no assistance and inevitably the wording is defective. However, that is not the point. This is Committee stage and I am arguing for a principle. The question is whether the substance of what I seek attracts your Lordships. I am not worried about technical deficiencies—I could not put them right anyway; I should have had to get a parliamentary draftsman to do it. The noble and learned Lord knows that perfectly well. He is no more a draftsman than I am.

I asked whether there would be any justification for introducing this entirely novel system of law making. I asked myself whether it would be claimed that there was a need for haste. If so, what is the hurry? Would the Government say that it was a matter of administrative convenience? If so, I would have wanted the order of that convenience. However, the noble and learned Lord came out with it with total honesty, as he always does. He said that the reason was the pressure of legislative programmes on the committees that he had to chair. I say to the noble and learned Lord in all amity that that is no justification at all for altering the whole system of changing the law. I agree that it may suit the Government but it is no justification. I have heard no justification advanced for the adoption of this new process for amending legislation. I remind the Committee that on the say-so of a Minister of the Crown by Order in Council primary legislation is amended. There is no due or proper consideration by Parliament. Your Lordships will be aware that an Order in Council cannot be amended.

The Lord Chancellor

I am grateful to the noble Lord for giving way. As the noble Lord will appreciate, Clause 10(2) provides that: If a Minister of the Crown considers that, in order to remove the incompatibility, it is appropriate to amend the legislation using the power conferred by this subsection, he may by order make such amendments to it as he considers appropriate". It is only where the legislation is itself made by Order in Council that Her Majesty in Council may amend the legislation by Order in Council.

Lord Campbell of Alloway

That I appreciate, but the primary legislation is amended by alternative procedures; namely, affirmative resolutions of each House. All noble Lords are aware of what happens on such occasions. Nobody is here anyway. It is a single-stage procedure and there is no substantive debate. The matter is dealt with in a manner which, quite frankly, is wholly inappropriate given the way in which primary law should be amended. I agree with the remarks of my noble friend Lady Carnegy of Lour.

I have been perfectly frank. No bridge can be put across this gulf. In the circumstances, I think it right to seek the opinion of the Committee.

5.35 p.m.

On Question, Whether the said amendment (No. 67B) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 110.

Division No. 1
Ailsa, M. Lane of Horsell, L.
Alexander of Tunis, E. Lawson of Blaby, L.
Anelay of St. Johns, B. Lindsay, E.
Ashbourne, L. Lindsey and Abingdon, E.
Astor of Hever, L. Lucas, L.
Biddulph, L. Lytton, E.
Biffen, L. McColl of Dulwich, L.
Brabazon of Tara, L. Mackay of Drumadoon, L.
Brain of Wheatley, L. Marlesford, L.
Broadbridge, L. Mayhew of Twysden, L.
Brougham and Vaux, L. Milverton, L.
Burnham, L. [Teller.] Molyneaux of Killead, L.
Cadman, L. Murton of Lindisfarne, L.
Campbell of Alloway, L. Napier of Magdâla, L.
Carnegy of Lour, B. Newton of Braintree, L.
Charteris of Amisfield, L. Norrie, L.
Chesham, L. Northesk, E.
Clark of Kempston, L. Onslow, E.
Cope of Berkeley, L. Oxfuird, V.
Courtown, E. [Teller.] Park of Monmouth, B.
Davidson, V. Rawlings, B.
Denton of Wakefield, B. Rowallan, L.
Dilhorne, V. St. John of Fawsley, L.
Dixon-Smith, L. Seccombe, B.
Downshire, M. Soulsby of Swaffham Prior, L.
Fraser of Carmyllie, L. Stockton, E.
Garel-Jones, L. Strathcarron, L.
Granard, E. Sudeley, L.
Harrowby, E. Swansea, L.
Hemphill, L. Swinfen, L.
Henley, L. Vivian, L.
Kinnoull, E. Young, B.
Ackner, L. Gallacher, L.
Ampthill, L. Geraint, L.
Archer of Sandwell, L. Gladwin of Clee, L.
Bassam of Brighton, L. Goodhart, L.
Berkeley, L. Gordon of Strathblane, L.
Blackstone, B. Gould of Potternewton, B.
Boyd-Carpenter, L. Graham of Edmonton, L.
Brooke of Alverthorpe, L. Habgood, L.
Burlison, L. Hanworth, V.
Calverley, L. Hardie, L.
Carlisle, E. Hardy of Wath, L.
Carmichael of Kelvingrove, L. Harris of Greenwich, L.
Carter, L. [Teller.] Haskel, L.
Castle of Blackburn, B. Hayman, B.
Chandos, V. Healey, L.
Clinton-Davis, L. Hilton of Eggardon, B.
Cocks of Hartcliffe, L. Hogg of Cumbernauld, L.
Craigavon, V. Hollis of Heigham, B.
Currie of Marylebone, L. Hope of Craighead, L.
David, B. Howie of Troon, L.
Davies of Oldham, L. Hoyle, L.
Dean of Thornton-le-Fylde, B. Hughes, L.
Desai, L. Hughes of Woodside, L.
Diamond, L. Hunt of Kings Heath, L.
Dixon, L. Hylton, L.
Dormand of Easington, L. Irving of Lairg, L. [Lord Chancellor.]
Elis-Thomas, L. Jay of Paddington, B.
Falconer of Thoroton, L. Jenkins of Hillhead, L.
Farrington of Ribbleton, B.
Jenkins of Putney, L. Pitkeathley, B.
Janner of Braunstone, L. Ponsonby of Shulbrede, L.
Kennedy of The Shaws, B. Prys-Davies, L.
Kennet, L. Rendell of Babergh, B.
Kilbracken, L. Richard, L. [Lord Privy Seal.]
Lestor of Eccles, B. Rodgers of Quarry Bank, L.
Lockwood, B. Rogers of Riverside, L.
Longford, E. Russell, E. [Teller.]
Lovell-Davis, L. St. John of Bletso, L.
Ludford, B. Serota, B.
McIntosh of Haringey, L. Sewel, L.
Mackie of Benshie, L. Simon, V.
McNair, L. Simon of Glaisdale, L.
McNally, L. Stoddart of Swindon, L.
Maddock, B. Symons of Vernham Dean, B.
Mallalieu, B. Thomas of Gresford, L.
Methuen, L. Thomas of Macclesfield, L.
Milner of Leeds, L. Tordoff, L.
Mishcon, L. Walker of Doncaster, L.
Molloy, L. Wallace of Coslany, L.
Monkswell, L. Weatherill, L.
Morris of Castle Morris, L. Wedderburn of Charlton, L.
Morris of Manchester, L. Wharton, B.
Murray of Epping Forest, L. Whitty, L.
Nelson, E. Williams of Crosby, B.
Nicol, B. Williams of Elvel, L.
Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Hoyle

My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.