§ 7.31 p.m.
§ Viscount Colville of Culross
rose to ask Her Majesty's Government whether they have checked all statutory instruments issued since May 1997 for compliance with the European Convention on Human Rights (and especially with Article 8, right to respect for private and family life); and whether they will in future attach to every such instrument a statement of compliance.
The noble Viscount said: My Lords, the House will know that in order to bring into force in October the Human Rights Act a great deal of energy is being spent on looking at primary legislation to see whether it complies with the provisions of the European Convention on Human Rights, and indeed a great deal of training in all sorts of public sectors is currently 471 taking place. My concern is that this may not have reached the departmental lawyers who draft statutory instruments.
I have given a copy of the notes I propose to use to all those who are to speak in this short debate, except, I am afraid, to the noble Lord, Lord Marlesford, as I did not know that he was to participate. That at least enables me to avoid quoting vast quantities of statutory instruments. I should tell the noble Lord, Lord Bassam—as I think that I have already done in writing—that I do not quarrel with the merits of any statutory instruments; it is a point of procedure and compliance with the European convention that concerns me. I also take this opportunity to thank in advance all those who propose to take part in this debate as I cannot do so at the end.
I have chosen Article 8 of the convention which deals with privacy. I hope that other noble Lords may wish to discuss other articles as all of them are important. Article 8 deals with the privacy that a person is entitled to enjoy in relation to his home. There are limitations which allow interference with this privacy by a public authority in accordance with law and for certain purposes such as the prevention of disorder or crime or the protection of health, but always—this governs the whole of the article, and indeed many others— only so far as is necessary in a democratic society. That is an important proviso to the limitations that can be imposed on this, as on many other rights.
Under the jurisprudence of the Strasbourg court, when one talks about home the concept is not confined simply to the place where a person and his family live. It is wider than that. The German case of Niemietz dealt with a solicitor and his office. It occurs to me that there must be many similar examples in everyday life, for example, small farmers who keep their records at home and the owners of foodshops who live over the premises. In relation to a Starred Question asked before Christmas, the noble Lord, Lord Borrie, pointed to the increased commercial use of computers by people who carry out business interests from home. Therefore the dilemma is ever increasing.
Your Lordships will be aware that the classic method of preventing crime—whether it is being committed or has already been committed— by way of entry has been in the hands of the police. The police—this was encapsulated in the Police and Criminal Evidence Act— are allowed entry to a person's house, and indeed other premises, only if they have reasonable cause to suspect that a crime is being or has been committed and they obtain a warrant from the magistrate. The same applies under other legislation, for instance when they are looking for stolen goods, drugs, other illegal imports, obscene publications and so on. Woe betide the organisation that does not go through the proper processes. There was a case where police were persuaded to apply for a warrant of entry into the premises of a firm called South West Meat early in the past decade. It was simply an exercise 472 whereby the meat intervention board wanted to snoop. The matter came before the courts which described the whole operation as a,deplorable abuse of power by public officials and police".They awarded £25,000 exemplary damages. Therefore this is not a matter to be undertaken lightly. Warrants are not lightly granted.
There are now vast quantities of other officials who are entitled, particularly under statutory instruments, to enter into one's home. The power depends primarily on the main legislation under which the statutory instruments are given. I looked at the Banking Act 1987 and the Police Act 1997, both of which produced statutory instruments which allow entry but only after a period of notice has been given. That is probably suitable for that kind of subject matter. I refer also to the Agriculture Act 1970 and the Animal Health Act 1981 which require the same test of "reasonable cause to believe". This carries through into the statutory instruments made under those pieces of legislation.
Even under the European Communities Act— Section 2(2) is the prime source of subordinate legislation in this respect—there can be "reasonable grounds for suspecting" incorporated in the subordinate instrument. For instance, if I have potatoes originating in Egypt, under the potatoes originating in Egypt regulations of 1998 an inspector authorised by the Ministry of Agriculture can enter my house to look for them only if he has reasonable grounds for suspecting that I have them in the larder. I have no objection to that because I think that reasonable grounds for suspecting, or possibly notice, are exactly the kind of threshold which demonstrates that we are operating what is necessary in a democratic society. Therefore much of this is probably all right. I had a great deal of sympathy with the noble Lord, Lord Bassam, when he was unable to say how many statutory instruments gave powers of entry. The recent statutory instruments are not bound in the Library and a great deal of what I say is based upon inspired guesswork as to where I might look.
What I am really concerned with are the statutory instruments which grant a right of entry, usually to unspecified officials, simply on a speculative basis. I cannot believe that that is within the powers and the remit of the European convention. I suggest that it goes too far. It is frequently contained in statutory instruments. There is possibly trouble in the primary legislation. I looked at the Food Safety Act 1990. There is perhaps room there for a revision if the Government are anxious to make sure that all their legislation lives up to the requirements of the European convention.
The real trouble arises under the European Communities Act. There is no limitation in Section 2(2) on what kinds of powers of entry may be given; it is not mentioned at all. The power is absolutely general. It is there to give effect to directives and it frequently does so.
I have looked at a number of statutory instruments in the past two or three years which have been made in the realm of animal health for food safety, where the 473 primary legislation —the British legislation—contains reasonable safeguards but where legislation made under the European Communities Act allows entry on a purely speculative basis.
I am sure that all noble Lords will agree that spongiform encephalopathy must be dealt with very firmly and radically, even where it occurs in sheep and goats. I may happen to be keeping a goat or a sheep in my outhouse. I am surprised, however, to find that a veterinary inspector or officer of the appropriate Minister has a right at all reasonable hours to come in to see whether that is so. He does not have to have any reasonable suspicion. All he has to do is to show some authenticating document. I shall not go through all the statutory instruments that I have found, but this is a pattern which occurs time and again, particularly when implementing directives under the European Communities Act 1972.
There is also a tendency, I fear, to stray in the direction of speculative entry. Not long ago there was a Prayer about the use of lead shot when shooting various wildfowl. The Prayer was not successful but the subordinate instrument was looked at. I see that it had been made under certain powers in the Environmental Protection Act. Those powers— I have looked at them—appear to include very reasonable restrictions on the Nights of entry, but the subordinate instrument does not. The authorised person—heaven knows who is the authorised person—can enter at any reasonable time any premises, including my house, which he has reason to believe it is necessary for him to enter. So he can come in to see if I am shooting moorhens from my bedroom window with cartridges containing lead pellets. He does not need to suspect that I am doing so; he simply comes in if he thinks it would be a good idea to do so. That is not in accordance even with the primary legislation.
My purpose in asking the Question is to see how far the Government are making progress in this matter. A useful development has recently taken place. After your Lordships rose for the Christmas Recess, a Statement was made in another place by the Home Secretary in which he said that he would introduce statements of compliance—which now apply to all Acts of Parliament— in relation to subordinate legislation which requires the affirmative resolution or which amends primary legislation. But it would not apply to negative instruments. I have been talking about negative instruments.
Let me make a Final point. If it is the intention of negative instruments passed under Section 2(2) of the European Communities Act to implement European law, I would suggest to the House that the implementation should comply with the Luxembourg codes—not the Strasbourg codes alone—which have a good deal to say about this. I have looked up some of the case law and I have given the noble Lord, Lord Bassam, some examples of it—Nold and Hoechst. There was a very interesting Greek case about television monopolies called ERT, which deals with Article 10 of the convention.
474 The way in which the Luxembourg court approaches this matter is that fundamental rights are part of the law of all the participating states in the European Union and should not be overridden in the course of pursuing European Union objectives. Therefore, if we are trying to implement directives under our own European Communities Act, I would suggest that we ought not do so in such a way as to violate Article 8, or indeed any of the other articles.
I leave this matter with your Lordships. I hope that others will develop it. I believe that the principle and the problem are much more general than has been recognised. I hope that the Government will take forward the very encouraging steps announced before Christmas and will guarantee to the House that all departmental draftsmen who draw up the statutory instruments are trained to comply with what everyone else will have to comply with, the Human Rights Act. Otherwise, it will all end up in the courts and prove extremely expensive.
§ 7.46 p.m.
§ Lord Marlesford
My Lords, we all owe a debt of gratitude to the noble Viscount, Lord Colville of Culross, for introducing this subject. Because of the very wide range of public service he has given to these matters, I suspect that there is no one in your Lordships' House who is better qualified to raise such a very important subject as the granting of powers of entry into private premises by secondary legislation, in particular, and also by primary legislation.
There is nothing new in such powers; they have always been needed and always will be needed. But, as they are very strong powers, in each and every case where either primary legislation or statutory instrument grants them, they should be subject to public and parliamentary scrutiny to ensure that they are justified in overriding what should he the normal presumption against them.
My own interest in this was stimulated by a Parliamentary Answer from the Minister in which he was unable to give me a list of the occasions since the last election when such powers have been granted. I note that the noble Viscount, Lord Colville, had sympathy with him for not being able to answer that question. I have rather less sympathy. I should have hoped that a new and radical Government, who are aiming both to show a libertarian streak and to have a sound law and order policy— I have the highest esteem for the present Home Secretary, whom I regard as a personal friend of many years' standing—would at the very least have kept a careful record of the occasions on which they introduced such legislation (my question was about the period since they came into power) in order to ensure that they were not in any way overdoing it. I do not blame the Minister personally but I felt that the answer indicated a somewhat cavalier—maybe he would prefer the word "casual" — attitude to the whole question.
We then had the Prayer of the noble Earl, Lord Lytton, against the use of lead shot regulations (Statutory Instrument 1999/2170), to which the noble 475 Viscount, Lord Colville, has referred, in which the justification for the draconian powers was questioned. In her reply, the noble Baroness, Lady Farrington, said that these powers would be mainly exercised by the police but that they also might be exercised by the Environment Agency or English Nature.
I have one question to put to the noble Lord, Lord Bassam, of which I gave his department notice this afternoon in order that he should be able to answer it. Have such powers been granted, or are there plans for them to be granted, either to the Environment Agency or to English Nature? I believe that it is dangerous to give such bodies powers of this kind unless it is absolutely essential. Furthermore, I believe that on occasions when any official other than the police or, by long-standing convention of powers held for centuries, officials of Customs and Excise, who has been given powers by a Secretary of State needs to gain access, he should always be accompanied by a police officer. At the very least, that will make the occasion more formal. Even to contemplate that an odd official from English Nature should enter people's private premises without a warrant is, I believe, unacceptable.
This matter emphasises once again the generally unsatisfactory use of Henry VIII legislation; that is, primary legislation that gives powers to the Secretary of State by order. However, what I believe is much worse is that all too often, such statutory instruments are in effect themselves Henry VIII clauses. That is because they allow the Secretary of State to authorise anyone he wishes to exercise powers of entry without specifying who that person may be. That is a legitimate ground for complaint.
I hope therefore that in future any use of statutory instruments in this way will be much more carefully considered as regards powers of entry and that arrangements will be made for appropriate parliamentary scrutiny. Those arrangements are not available at present. Furthermore, I hope that, under its new and more legitimate form, your Lordships' House may feel that it should have the power to pray against, with a vote, certain statutory instruments. Previously that was something that the House has not felt able to do.
While I yield to no one in my support for the forces of law and order to use all appropriate means to fight serious wrongdoing, the trivialisation of such grave powers, as I believe the lead shot example to be, erodes freedom in a way that reduces rather than enhances public support for the forces of law and order on which we all depend. Finally, I hope very much that the Minister will give a positive and detailed reply to the points raised so sensibly and necessarily by the noble Viscount.
§ 7.53 p.m.
§ Lord Lester of Herne Hill
My Lords, I am most grateful to the noble Viscount for initiating this debate on the important subject of effective parliamentary scrutiny of delegated legislation and in particular in the context of the right to personal privacy. In my 476 remarks I shall not focus on the right to personal privacy, for reasons that I can briefly explain. Obviously it is vital that powers of search, entry and seizure should comply with the fundamental right to respect for private life anchored in Article 8 of the European Convention on Human Rights. One of the reasons Sir Stafford Cripps gave in 1949 for opposing the European human rights convention, when he was Chancellor of the Exchequer in the Attlee government, was that he wanted his inspectors to be free to search our homes without any safeguards being introduced. Half a century later, we have moved well beyond that point.
The reason why, with respect, I do not believe that the noble Viscount is correct in identifying a significant particular problem in the context which he has raised is because effective legal remedies are in place to deal with delegated legislation if it flouts the right to respect for personal privacy. First, if statutory instruments are made under Section 2(2) of the European Communities Act 1972, then they must be made with limits to their powers in accordance with European Community law. As the noble Viscount indicated, European law must be read subject to respect for human rights as laid down in the European Convention on Human Rights. It is beyond the power of Ministers or of this Parliament to produce statutory legislation which is not authorised by the 1972 Act and by the paramount law of the European Community. For that reason, if any subordinate instrument were made that violated the right to personal privacy, it could be challenged by way of judicial review and quashed. That will become even more the case when the Human Rights Act comes into force on 2nd October 2000. So the particular problem raised by the noble Viscount, although it is important that there should be safeguards of personal privacy, is dealt with through the legal process.
However, that does not answer the wider question raised by the noble Viscount, which does not concern legal remedies, but is about the effective parliamentary scrutiny of delegated legislation. That problem goes far wider than the particular question on the Order Paper. It has been addressed most helpfully by the Delegated Powers and Deregulation Committee of 10 Members of your Lordships' House, chaired by the noble Lord, Lord Alexander of Weedon. In evidence given to the Royal Commission on Lords Reform on 21st April 1999, it made a number of important recommendations with which I agree in their totality. The first matter that the Delegated Powers and Deregulation Committee supported was the establishment of a human rights committee, or a joint committee with the other place, and they referred to the commitment made by the Government to support the creation of such a committee. However, the Delegated Powers Committee pointed out that the terms of reference being proposed for the new committee had three particular gaps. First, there would be no proposed scrutiny of the compatibility of secondary legislation—a point raised by the noble Viscount—where much potential incompatibility may lie and which could be a very considerable task.
477 Secondly, the Delegated Powers Committee pointed out that there was no mention of second-guessing ministerial statements on compatibility as laid out in Section 19 of the Human Rights Act, only,the examination of draft legislation".Thirdly, it pointed out that the new committee would need the power and resources to consider whether amendments tabled to a Bill would render it incompatible with the convention.
Finally, pointing out that we do not yet have a sensible structure, it recommended that we should set up a coherent committee structure in this House involving the creation of the following new committees in addition to ad hoc committees for the pre-legislative scrutiny of draft Bills: a human rights committee; a legal and constitutional committee—an important committee, given the special role of many second Chambers worldwide in relation to the constitution; and special scrutiny committees for detailed inquiry into selected statutory instruments.
I very much hope that the noble Lord, Lord Wakeham of the Royal Commission will find it easy to recommend those proposals to the House. If it does not, I hope that the House will itself seize the initiative. However, since that evidence was given on 21st April, it is my sad task to inform the House that was has happened since thin has been a most lamentable dragging of feet by the Government in failing to set up a Select Committee on human rights, as had been promised a long time ago, or to indicate whether its terms of reference would include the scrutiny of delegated legislation.
I shall not weary the House with a detailed recitation of all the occasions on which questions have been asked, not least by me, on this issue and answers not given, but it has gone on for month after month. As long ago as 20th May 1999, the Lord Privy Seal, the noble Baroness, Lady Jay of Paddington, indicated in a Written Answer that it was the Government's intention to set up a Joint Committee on Human Rights before the Human Rights Act 1998 came fully into force but that no decision had been taken on when exactly both Houses would be asked to approve Motions to appoint such a Joint Committee. Again and again the Government have been pressed and again and again they have refused to give an answer. There are some Questions down in my name for Written Answer at this very moment.
The reason why that matters is that until such a committee is set up we shall not have any scrutiny machinery to deal with the kind of problems raised by the noble Viscount. Until we have a Select Committee, whether joint or separate, we will not have the expertise or the information to be able to scrutinise measures, whether primary or subordinate, for their compatibility with convention rights.
It goes further than that. The Government put on the face of every Bill, as they must under Section 19 of the Human Rights Act, a statement of compatibility. It expresses the view that the Minister believes the Bill—I am referring to primary legislation—to be compatible. Indeed, as the noble Viscount indicated, the 478 Government have agreed to do the same under the affirmative resolution procedure for delegated legislation. But that is of no value unless the Government also give their reasons for considering that a measure, primary or delegated, is compatible. Again and again the Government have been pressed as to whether they will make it standard practice to give their reasons in order that we in this House and Members of another place are able to test those reasons.
The issue arises again and again. Tomorrow the same Minister will be dealing with the Committee stage of the Race Relations (Amendment) Bill. I wrote to the Government and put down Questions to the Government so that we could be properly informed before the debate tomorrow—I said preferably by 4th January so that we could have plenty of time—as to the Government's reasons for believing that measure to be compatible with convention rights. I received a courteous reply from the Home Office indicating that those involved were on holiday and too busy and could not reply in time. We have not yet had a reply and the Committee stage is tomorrow. It is quite wrong that we should be scrutinising an important Bill in Committee tomorrow when we do not have a clue as to the Government's reasons for considering that the Bill is consistent with Articles 14, 6 and 13 of the European Convention on Human Rights in relation to access to justice, Ministers' liability and equality of treatment without discrimination. We do not have a clue. As a lawyer, I do not have a clue as to the Government's case on that; still less on compliance with the International Covenant on Civil and Political Rights, which, as a member of the Human Rights Committee, the noble Viscount knows so well; still less on the Convention on the Elimination of Racial Discrimination.
We are in a pathetically ignorant state. We simply do not have the material. Lawyer Members of the House like myself have to do our best to help other Members who are not lawyers to address some of these questions as unpaid professionals doing our best in the way that we can. It is not good enough. We need to have a proper committee structure to deal with the kind of questions raised by the noble Viscount and we need the information so that we can know what the Government's case is, we can test it and we can call the Government to account.
I hope that the Minister will provide that information in the debate tomorrow on the Race Relations (Amendment) Bill. But I am addressing, as is the noble Viscount, systemic failures. We talk again and again about parliamentary sovereignty but the reality is that Parliament, or at least the other place, is controlled by the executive for most of the time between elections. The only way in which we can call the Government to account is by having effective powers and effective information. That is now what we must press for. For that reason, and for many others, I am most grateful to the noble Viscount for initiating 479 the debate. I very much hope that it will be considered at the highest level of government as a matter of priority.
§ Lord Burnham
My Lords, before the noble Lord sits down, perhaps I may ask him to add to those measures that he mentioned the Armed Forces Discipline Bill, with the Report stage of which we shall deal next week, as another Bill where it is less than clear whether either the current legislation or the proposed legislation is compatible with the convention or with the Human Rights Act.
§ Lord Lester of Herne Hill
My Lords, I do so with great pleasure because what I have said is true of every Bill. Every Bill has to have a statement of compatibility. Every Bill should be accompanied by or followed by reasons concerning compatibility. The same applies to the affirmative resolution procedure; and for the negative resolution procedure we need a proper committee system to look at selected delegated legislation, as the committee of the noble Lord, Lord Alexander, has made clear.
§ 8.5 p.m.
§ Lord Cope of Berkeley
My Lords, like other noble Lords who have spoken, I am grateful to the noble Viscount, Lord Colville of Culross, for tabling this Unstarred Question. He has drawn attention to a most important consequence of the European Convention on Human Rights which seems to have escaped both the Government and Parliament. I understand that it was the 17th century English jurist, Coke, who formulated the legal principle that a man's home is his castle and every man's home is his safest refuge. It is therefore appropriate that this long-established principle of English law should find a place in the human rights convention, which has now been written into our statute law and comes into effect later this year. This nation and this House should be foremost in ensuring that the principle is carried into practice.
However, the noble Viscount has shown us that we have allowed the principle to be eroded. He made the clear distinction between the powers of entry given to the police, Customs and so on, which are necessary for the protection of law and order and which are now formulated in PACE, and the increasing number of powers given to other officials to enter and search premises which are wholly or partly domestic and which do not provide the same safeguards for the citizen. They provide instead for what can be called "fishing expeditions". That is not acceptable under the convention and it should not be acceptable in our country in any case.
That leads me to ask the Minister two questions. First, can he confirm that these powers, as they are now formulated without safeguards, will become illegal under the Human Rights Act when it comes into force later this year? I assume from what has been said, both by the noble Viscount and by the noble Lord, Lord Lester, that the answer to that question is clearly yes, but it would nevertheless be nice to have it 480 confirmed by the Minister. Perhaps I may say this to the noble Lord, Lord Lester. I do not think it is sufficient to say that it does not matter whether these powers are excessive because they can be quashed through judicial review. I am sure that the noble Lord is right about that. I am not arguing with him as a lawyer, but I do not think that we should have legislation on the statute book which can mislead both the officials concerned and the public into thinking that the powers are greater than they actually are. Therefore, although the power to quash them is important, it does not finally answer the question.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Lord for giving way. I was simply pointing to the existence of a remedy for over-breadth, but I entirely agree that Parliament should not authorise excessive powers without safeguards against abuse. I was simply indicating that there are those safeguards, but it is not good enough to give blank cheques to public officials without the legislation itself containing safeguards.
§ Lord Cope of Berkeley
I am grateful to the noble Lord.
The second question to which an answer is needed—not necessarily this evening, because it may be detailed—is: which statutory instruments confer powers which do not contain the safeguards? The noble Viscount has drawn our attention to some but has indicated that there are possibly many others. At present, none of us can be sure how many.
If the answer to my first question is that the powers are illegal, it will be essential for the Government, Parliament and others to know which statutory instruments we are talking about. Like my noble friend Lord Marlesford, I do not think that it is good enough to answer, as Ministers have recently done, that the Government have lost count of how many such powers there are and that they do not propose to find out. Apart from anything else, the officials concerned with implementing the various provisions need to be told to stop using them in the way in which they apparently think that they can. It is not good enough for the Government to rely on the belief that the powers may exist but no one will bother with them in the future. We need to know; and it would be helpful to have a list.
Underlying much of all this is the European Communities Act. Many of the offensive powers apparently stem from European Union agreements, sometimes known as directives. It may be that they have been over-zealously implemented here in being written into UK statutory instruments—the process known as "gold—plating" or it may be that the agreements themselves are defective in the light of the human rights convention. To eliminate the danger for the future, we need to provide both against the terms of the EU agreements themselves and against their overzealous implementation in the United Kingdom. A certificate of compliance, properly "policed", for all statutory instruments, whatever their parliamentary process, would provide a line of defence against gold-plating. I hope to hear a favourable response on that point from the Minister.
481 In addition, the European Union might adopt the practice of the present Government so far as primary legislation is concerned, and indeed affirmative instruments, and make the Commission certify that any agreement at which the Council of Ministers is about to arrive complies with the European Convention on Human Rights. I realise that the convention does not stem from the EU but from the Council of Europe, but all EU members subscribe to it, so presumably all will wish their directives and agreements to comply in future.
I am mainly concerned with the two questions that I have asked: is it certain that these instruments will become illegal; and will the Minister set out, presumably in writing, which statutory instruments confer these offensive powers? I have no doubt that we shall be told by the Minister, correctly. that the noble Viscount has raised an important issue. It has also become clear during this debate that it is one that will not go away.
§ 8.15 p.m.
§ Lord Bassam of Brighton
My Lords, the noble Viscount, Lord Colville, deserves great credit, and our gratitude, for raising the important subject of preparations for the Human Rights Act. I shall attempt to outline them in general terms, and pick up particular points that have been raised.
Preparing for the Human Rights Act is a major task. It involves a great deal of work. The main burden of that work has to be shared by all government departments. But there can be no doubt that we all have an important part to play in the process. Debates such as this shine a torch on particular aspects of the preparatory work. This debate has been helpful to all concerned. It has also shown the parliamentary system working at its best.
The noble Viscount was right to stress the importance of the Human Rights Act, as have all noble Lords who have spoken. It is a defining event in our constitutional history and development. When the Act comes into force, on 2nd October this year, it will place on all public bodies in this country a new and important statutory duty to act compatibly with convention rights—unless, of course, primary legislation prevents them from so doing. The duty is significant and wide-reaching. The Human Rights Act will also mean that all of our legislation must be interpreted in a way that is compatible with convention rights unless it is impossible to do so.
But the new Act is not simply about compliance by public bodies with the new legal obligation. It is not merely about allowing people to raise convention points in UK courts without having to go to Strasbourg. The Human Rights Act is fundamentally about modernising our society and building a new culture of rights balanced by responsibilities within UK law. Rights and responsibilities go together. They are two sides of the same coin. The new culture that we want to build is one in which the Human Rights Act gives us a shared understanding of what is fundamentally right and wrong, a culture where 482 people recognise the duties that citizens owe to each other and the wider community and are willing to fulfil them—and one in which public authorities understand that the Human Rights Act defines what the basic rights are. It will sometimes require us to be robust about an individual's rights if we are to maintain the rights of others. That is the culture that we want to build. That is what the Human Rights Act is all about.
There is no question that preparing for implementation of the Human Rights Act is a major task. It involves all public authorities, central and local government, the courts, the police, the utilities and private bodies in so far as they have to perform public functions. Public authority staff must be trained in an awareness of the convention rights and their new obligations. Public authorities are, as a consequence, reviewing the legislation, rules and procedures for convention points.
I emphasise that we do not expect the statute book to be rewritten overnight on 2nd October 2000. Nor do we pretend that it will be in a state of perfection. We have, after all, been fully signed up to the ECHR for half a century, and ECHR proofing of legislation has been a continuing and deepening process throughout that period. The statutory instruments mentioned by the noble Viscount, Lord Colville, were not prepared without regard to ECHR considerations. Indeed, most were prepared very recently, in the shadow of the Human Rights Act.
But the convention is a living instrument. It changes and evolves over time to reflect the way in which society has changed. That is one of its great strengths. It means that reviewing our legislation and procedures for convention points must be a continuous process. It cannot be a one-off event.
Each government department is responsible for reviewing its own legislation and procedures for compatibility with the convention rights. That is not a task which lends itself to bureaucratic or centralised structures. Each individual department must feel responsibility for assessing its own legislation and "take ownership" of the process. That is an important part of building the new culture about which I spoke earlier. We must mainstream human rights awareness throughout Whitehall and the devolved administrations so that considering human rights implications of a particular procedure or policy initiative is an automatic and instinctive part of the decision-making process. Only then can we hope to develop the new culture that we seek. In our view, individual departments are best placed to decide how to do that. Each department has different requirements and different priority areas, and each must satisfy itself as to the compatibility of its own legislation and procedures and processes.
The noble Viscount, Lord Colville, asks whether we have checked all the statutory instruments issued since May 1997 for compliance with convention rights. The short answer is that we have, or are in the process of doing so, but that the review of a particular statutory instrument or any other piece of legislation is a matter for the relevant department concerned. We have not 483 sought to impose on departments a bureaucratic, centralised structure to review individual items of legislation or to maintain long centrally held lists which purport to show when a particular piece of legislation has been given a green light, as it were. Such an approach would go against our efforts to mainstream human rights considerations throughout government. It would also go against the need for continuous review in the light of the "living instrument" nature of the ECHR.
But the centre—in this case the Home Office and the Human Rights Task Force—is monitoring the general state of preparation in all departments. I can assure your Lordships' House that departments are well aware of their new responsibilities under the Human Rights Act and the impact of that Act on their legislation. Departments take very seriously the need to consider existing legislation, primary and secondary, for convention points. They are doing this not just because the Home Office has dictated that they should but because they understand that after 2nd October this year—this is an important point—the courts will be able to strike down secondary legislation that is incompatible with convention rights.
The noble Viscount cited in particular a number of examples of secondary legislation which he believed might raise Article 8 privacy issues. Your Lordships' House is aware that intrusion into the privacy of the individual is an issue that this Government take extremely seriously. Indeed, we are introducing a Bill this Session to ensure that the use of intrusive investigation techniques continues to be regulated for the protection of both the rights of the individual and society at large. Clearly, Article 8 considerations will be at the heart of that legislation.
But I make an important general point here. Central to the ECHR and the Human Rights Act is the principle of balance. The convention recognises that most of the rights within it are not absolute. There are circumstances where rights can legitimately be limited by the state and where a public authority must be tough on an individual's rights to protect the rights of society as a whole. The convention sets tests by which we can measure whether those limitations are in line with human rights principles. Are they in accordance with the law? Do they pursue a legitimate aim? Are they proportionate? The point is that there are circumstances in which the state is justified in interfering with a convention right, such as privacy. Clearly, Strasbourg recognises this. Simply to show that a particular action by a public authority touches on a convention right does not automatically mean that the right has been violated. The decision as to whether the legislation concerned is compatible with convention rights is not a precise science. After all, everything in the law is arguable. No Minister or official can be 100 per cent sure—certainly not before the Human Rights Act is in force and we see how the courts deal with convention points.
484 I cannot go into the provisions of the particular statutory instruments that the noble Viscount cited, although I shall be happy to pass on his concerns to the Ministers with direct responsibility for the legislation in question.
I turn to the suggestion of the noble Viscount, that in future the Government should attach to every statutory instrument a statement of compliance with convention rights. The current position has statutory and non-statutory elements. As has been widely recognised in the debate, the statutory provision is Section 19 of the Human Rights Act which requires a Minister when introducing a new Bill to make a statement that in his or her view the provisions of the Bill are compatible with convention rights. Alternatively, if he or she is not able to state that he must explain why the Government wish the House to proceed with the Bill. But Section 19 applies only to primary legislation. Parliament, wisely I believe, did not extend the operation of that scheme to all species of legislation, primary and secondary. I venture to suggest that that is because the Human Rights Act subjects secondary legislation to a number of very powerful safeguards.
Put simply, the general scheme of the Act does not permit secondary legislation which is incompatible with convention rights. In the first place, Section 6 of the Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with convention rights unless the public authority cannot act otherwise because of a provision in primary legislation. Unless that Section 6 saving applied, to seek to bring forward incompatible secondary legislation would be in conflict with the Human Rights Act itself.
As your Lordships are aware, secondary legislation must always be within the powers of the Minister who makes it. It must be (to use the relevant term) intra vires. A Minister has no power to make secondary legislation that is incompatible with convention rights unless primary legislation requires him to do so. The Joint Committee on Statutory Instruments and its Clerk devote much anxious attention to the vires of proposed new secondary legislation. Behind and above these considerations there is the simple fact—a point very ably made by the noble Lord, Lord Lester—that from 2nd October of this year such incompatible secondary legislation can be struck down at any time by a court. It enjoys no special protection under the Human Rights Act. I believe that that is an extremely powerful safeguard which provides the best protection of all.
My noble and learned friend the Attorney-General has already announced that from the beginning of the current Session a Minister who invites Parliament to approve a statutory instrument subject to affirmative resolution should, as a matter of good practice, always volunteer his or her view regarding its compatibility with convention rights. It is not essential that he or she should do so for the reasons that I have already given. But we believe that it would be odd if there were a debate about a proposed statutory instrument and the Minister made no comment about compatibility with 485 convention rights. We have also said that as a matter of good practice the Minister should always give his or her view regarding secondary legislation which amends primary legislation. Such legislation falls into a special category: it is treated as protected primary legislation under Section 21 of the Human Rights Act. We believe that it is right for the Minister to give his view about compatibility in such cases even where the secondary legislation which amends primary legislation is not subject to affirmative resolution. For example, this may take the form of a letter to the Joint Committee on Statutory Instruments. Detailed guidance to this effect has been issued to departments.
I should like to deal with particular points raised in the debate. I believe that my earlier remarks have dealt with most of them. I can provide some comfort to the noble Lord, Lord Lester, on the question of the terms of reference of the joint committee to be established. It is our belief that the. terms of reference need to cover such matters as inquiries into general human rights issues in the UK. We also believe that that area should be covered by the joint committee in examining draft legislation and, in more general terms, that it should look at the longer term and perhaps the arguments surrounding the development of a human rights commission within the UK. We hope shortly to make an announcement of the date when the joint parliamentary committee will be set up. Clearly, there are important issues to be settled and debates to be had.
§ Lord Lester of Herne Hill
My Lords, I am most grateful to the Minister for giving way. What he has not dealt with is the question whether the human rights committee to be set up shortly—I am not sure what "shortly" means in government terms—will have the power to review the compatibility of secondary legislation with convention rights. Nor has the noble Lord dealt with my point about the giving of reasons for statements of compatibility so that we are able to act as watchdogs and scrutineers in the public interest. The Minister said very little about the role of Parliament but a great deal about the role of the Government and the courts. Perhaps he will address the following two questions. Is there to be a special committee as recommended by the committee chaired by the noble Lord, Lord Alexander, to look at the compatibility of secondary legislation with human rights? Are we to have statements of reasons for compatibility in advance of debates so that those reasons can be scrutinised?
§ Lord Bassam of Brighton
My Lords, I am grateful to the noble Lord for again raising those points. I wish to reflect further on what he said. I shall write to him to elucidate our position. I think it likely that the joint committee will want to look at secondary legislation in the context of where legislation is going generally. However the important point—I made it earlier—is that we would expect Ministers in debate in any event to seek to deal with compatibility issues with secondary legislation. I am happy to give the matter further consideration.
486 I turn to points raised by the noble Lord, Lord Marlesford. He made contact with our department this afternoon. I cannot give the noble Lord an answer this evening. However, I am grateful to him and we shall take up his point. I shall write to the noble Lord and share the contents of that correspondence with your Lordships. I shall of course write to noble Lords on other points I have not covered in my responses.
In conclusion, I stress that the Government are taking preparations very seriously indeed. They affect all public authorities and are wide ranging. Departments are engaged in a review of their legislational processes. It cannot be a one-off matter. It has to be a continuing, everyday part of the public service of this country that we approach matters in this way. We are trying to establish a change of culture across government; and to create a culture where human rights considerations are very much at the heart of public service work. I believe that to be the importance of the legislation and the way in which it affects processes. We all have a real and important part to play in that culture change. Parliament has a clear interest in the compatibility of new legislation. We seek to ensure that the Government's views on compatibility are made clear to Parliament wherever it is necessary to do so. The debate today has enabled us to focus on that real and genuine issue. I am most grateful to the noble Lord for raising these important issues and for providing us with the opportunity to explain our general approach.
§ The Earl of Onslow
My Lords, the noble Lord has now spoken for 17 minutes. One of the most important points raised by my noble friend Lord Marlesford, and the noble Viscount, Lord Colville or Culross, was about the powers of entry of officials. This has gone much too far. In the words of the Dunning revolution, the power of the Crown is increasing, has increased, and should now be reduced. The power of the Crown to appoint people to go into people's houses is far too wide. The Minister has not addressed that point in his answer to this House today.
§ Lord Bassam of Brighton
My Lords, in a sense I think that I have. The point I sought to make is that all secondary legislation which provides for powers of entry will be subject to a compatibility test. Each department needs to review it. Of course, powers of entry are important. In some instances they can appear draconian. But all governments and legislation have relied on powers of entry for important enforcement. I am sure the noble Earl will agree that the power of entry is an important tool in enforcing well intentioned and well directed legislation.