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Mr. Hogg: It is an historical answer.

Mr. Straw: It is. As far as the future is concerned, we are of course inviting the courts to work on the assumption that the House has applied itself to ensuring that legislation is compatible with the convention, except where a Minister comes to the House to say that there are overriding reasons why it is not, to give those reasons and to ask the House to agree the legislation in any case.

Mr. Hogg: The right hon. Gentleman has made a sound point, and I concede that he is right. However, I see no objection to the concept of incorporating into the Bill the proposition that, for prospective legislation, the courts should proceed on the assumption that there has not been a derogation of convention rights where Parliament has expressly addressed that question. I see certain advantages in doing that.

Mr. Straw: We are achieving the right hon. and learned Gentleman's purpose by a different route through clause 19, which we shall discuss when we reach it. I ask him to read that and to contribute at that stage.

I have gone into some detail to answer the important points that have been made. In the light of what I have said, I hope that the Opposition will withdraw the amendment.

Mr. Clappison: This has been an interesting debate, and the Home Secretary, having rightly acknowledged that important points have been raised, has endeavoured to deal with them. It has been reasonable--if I dare use that word--to explore these issues. My first reaction to the proposals was similar to that of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). Having considered the words used in the clause, we were concerned by the prospect of courts straining to give legislation an unrealistic interpretation,

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and by the possibility that the clearly expressed will of Parliament might be lost in that process. In those circumstances, it would have been preferable for the courts simply to make a declaration of incompatibility, which would have resulted in legislation returning to the House.

I drew some encouragement from the Home Secretary's initial remarks. I respected the clearly argued contribution of the hon. Member for Wellingborough (Mr. Stinchcombe), who drew on academic authorities. The Home Secretary's response against that background gave me some encouragement about the importance that the Home Secretary attached to parliamentary sovereignty. The Home Secretary clearly feels that parliamentary sovereignty has been preserved in the Bill.

We have reservations about clause 10, to which the Home Secretary referred, and we may put some of his comments to my right hon. and learned Friend the Member for Sleaford and North Hykeham in the bank for when we debate that. I appreciate that the Home Secretary made those remarks quite deliberately, but they may, less deliberately, have implications for the next group of amendments, which relate to the striking down by courts of subordinate legislation without that legislation coming back to the House.

The Home Secretary knows our concerns. We wanted a clear exposition from the Government to the effect that the courts were not to strain to give legislation an artificial or unrealistic meaning. We have drawn some reassurance from his remarks, although not complete reassurance. On that basis, and because we need to make progress, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Clappison: I beg to move amendment No. 17, in page 2, line 46, leave out from 'legislation' to end of line 2 on page 3.

The Second Deputy Chairman: With this, it will be convenient to discuss the following amendments: No. 11, in clause 4, page 3, line 13, leave out from 'right' to end of line 15.

No. 12, in page 3, line 16, at end insert

'and save for making a declaration of incompatibility as aforesaid a court shall not otherwise strike down any subordinate legislation by reason of its incompatibility with a Convention right'.

Mr. Clappison: We now come to what happens when a court finds that legislation is incompatible with a convention right. In the case of primary legislation, the court may make a declaration of incompatibility, which results in the procedure for remedial action to which I referred in the previous debate.

In the case of subordinate legislation, the position is a little more complicated. If subordinate legislation is incompatible with a convention right, and the primary legislation under which it was made prevents removal of that incompatibility, the court may make a declaration of incompatibility. If, however, the subordinate legislation is incompatible and the primary legislation does not prevent removal of the incompatibility, the court may strike down the subordinate legislation without it coming back to the House.

That is a significant development, which goes beyond the present position, in which courts may hold subordinate legislation to be invalid only in certain limited

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circumstances under judicial review. I do not want to go too far into the intricacies of that, but it is established that the grounds on which courts can strike down legislation are limited.

The powers to strike down subordinate legislation conferred by the Bill go beyond that, and take us into new constitutional territory. The courts will be able to strike down subordinate legislation that is unobjectionable on existing grounds of ultra vires. We do not question the legitimacy of the established doctrine of judicial review on grounds of ultra vires, but we are worried by the new constitutional implications of allowing courts to strike down subordinate legislation on grounds of incompatibility where the legislation is not ultra vires and without the matter coming back to the House. That may mark a change in the constitutional role of the courts, which we should not allow to pass without comment.

The Lord Chancellor, a supporter of incorporation of the European convention on human rights, made a robust statement of the principles governing the constitutional position of the courts in his 1995 Administrative Law Bar Association lecture. He said that the key principle was that

The Lord Chancellor was correct on that occasion, and right to draw a distinction between the procedural grounds on which judicial review is exercised and an appellate procedure that looks at the substantive merits of a decision.

The Bill's new procedure seems to lead the courts into considering the substantive merits of issues, rather than procedure. The Lord Chancellor's considered speech drew on a long line of historical precedents, to justify his analysis of the constitutional role of the courts and the place that they occupy in our constitution. The Lord Chancellor's line of precedence went back at great length, almost, although not quite, to Tudor times--I say that without meaning anything by it--and began with Bonham's case in 1610.

We know that the noble Lord Chancellor loves historical precedents, and he drew together a number to justify what he thought was the correct constitutional position between Parliament and the courts. We think that that was right, but we are now being asked to do something new under the clause. It involves the courts moving beyond the existing constitutional framework into new territory. We cannot allow that to happen without marking it in some way.

One of our main concerns throughout the Bill has been the position of parliamentary sovereignty. We have just heard the Home Secretary speak at length on how parliamentary sovereignty has been preserved, notwithstanding incorporation, through the mechanisms in the Bill. However, we now have an example of exactly what the Home Secretary warned about: courts having the power to strike down legislation without the matter coming back to the House. Although we have reservations about the Government's remedial action, it is important, as a matter of principle, for legislation to come back to the House rather than be struck down by the courts without coming back to the House.

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This is a constitutional precedent, and it is relevant to parliamentary sovereignty. The Committee should mark it and not allow it to pass.

7.30 pm

Mr. Grieve: I find the position in respect of this clause particularly difficult. I shall explain why. We are dealing with subordinate legislation, and my experience as a barrister is that subordinate legislation is sometimes struck down by judges for being ultra vires. When that has happened, no seismic shock has passed through this House, because most subordinate legislation is brought into being after the merest scrutiny by the House.

I sit on the Joint Committee on Statutory Instruments, so I know that our method of scrutinising subordinate legislation is totally inadequate. It is not far from being a disgrace. I say that on a non-partisan basis, because it has existed for a long time.

Mr. Leigh: Will my hon. Friend give way?

Mr. Grieve: I should like to develop my argument first.

The prospect of the courts striking down subordinate legislation on the ground that it is incompatible with the European convention as incorporated bothers me less than my anxiety that this will be an area of potential conflict unless Parliament puts into operation proper methods of scrutiny of subordinate legislation before it comes into being. In practical terms, it is far more likely that subordinate legislation will be the subject of dispute than primary legislation, although I am sure that the Government and individual Departments will in future provide close scrutiny of subsequent subordinate legislation to ensure that that does not happen.

The problem, which we shall come to when we consider the Henry VIII clause, is that I have always been absolutely persuaded that, if the principle of incorporation is to work, it will be because Parliament and the courts seem to be acting in tandem because one is not subordinate to the other and it is Parliament's will that the rights as set out in the Bill should be incorporated and upheld, and because Members of Parliament will look to the courts to provide them with guidance in carrying that out.

We must move away for a moment from the question of the precise wording of the Bill and whether judges ultimately have the power to strike down subordinate legislation and persuade the Government, particularly the Parliamentary Secretary and the Home Secretary, that regard must be had to how subordinate legislation is brought into being. Unless it is perceived by both Parliament and the public that Parliament takes an active role in ensuring that the subordinate legislation is compatible with the European convention, we shall subsequently have a fertile area of conflict if the judges then go round striking it down.

I accept that I am widening the scope of the argument a little beyond the precise wording of the amendment, and I apologise to you, Sir Alan, for doing so. However, it is a point of fundamental importance and it must be addressed. I am aware that Justice has been particularly exercised on the matter, because it is convinced that there will have to be some form of parliamentary Committee to scrutinise subordinate legislation. With a certain refreshing naivety, it came to see me and inquired whether

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I thought that the Select Committee dealing with statutory instruments could do the job. The answer is, "Yes, it could. But it would have to be several Committees, not one, and it would have to be given the teeth to do it. It certainly has the expertise."

I realise that it is a separate issue, which will be discrete from the Bill, but the acceptability of the courts striking down subordinate legislation will be greatly enhanced if the mechanisms by which that subordinate legislation is brought into being are subject to proper scrutiny. Unless they are, we run the serious risk of the courts operating in that area, and Parliament will be held in contempt. We do not scrutinise subordinate legislation properly in the first place, so we shall be ill prepared to complain when subsequently it is deleted.

That is more important, potentially, than amending the Bill as it stands. My experience as a barrister is that, ultimately, subordinate legislation is regarded as the creature of Ministers. If Ministers get it wrong and it is struck down, no seismic shocks ripple through our constitution. Nevertheless, it is an important point and I hope that the mere fact that it highlights the deficiencies in the creation of subordinate legislation means that we shall end up with a much better constitutional procedure for dealing with the growing amount of such legislation. In the 1960s, we passed some 25 pieces of subordinate legislation a year, and today we look at about 70 a week in Committee. Unless the matter is brought under control, it will cause serious problems in the future.

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