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Mr. Hogg: The Minister's argument is less good than he thinks it is. He is saying that the courts already have the power to strike down secondary legislation on the ground of ultra vires and under the Wednesbury principles. I understand that, but we are arguing about the courts having the power to strike down secondary legislation on the ground of incompatibility. That raises the question of merit, which goes beyond vires. Although there is a power to strike down secondary legislation, it is narrowly defined and usually applies to ultra vires or unreasonable acts, whereas the Bill gives the courts an ability to determine not just issues of vires but questions as to compatibility that are themselves issues of merit.

Mr. Hoon: I shall deal with that point as I develop my argument in relation to the Bill. I hope that it is common ground between us that, if a Minister exercises an order-making power in a way that is not permitted by the parent Act, the courts should be able to disapply that order. I doubt that there is any dispute about that. In doing so, the courts would, in effect, be reinforcing the will of Parliament by ensuring that the Act that it approved was properly applied. In that sense, the courts would be upholding parliamentary sovereignty, by ensuring that the will of Parliament in primary legislation had been given effect. I hope that that point will be accepted.

Let me apply that argument to the Bill. If Parliament passes an Act that contains order-making powers that are capable of being exercised in a way that is compatible

3 Jun 1998 : Column 433

with convention rights, what is the objection to providing that, if a Minister fails to exercise those powers consistently with those rights, the courts should be able to quash the instrument or set it aside? I cannot see what is wrong with that argument. Indeed, it is the absence of such a power with which I would have difficulty. The Human Rights Bill, if it is approved, will become an Act of Parliament, and it is perfectly reasonable to require that subordinate legislation be consistent both with the terms of its parent statute and with the Human Rights Act. That is what the Bill provides.

It is inherent in the public authority provisions in clause 6 that Ministers will be acting unlawfully if they make subordinate legislation that is incompatible with a convention right, unless the parent statute requires the subordinate legislation to take that form. I hope that that is the answer that the hon. Member for Beaconsfield (Mr. Grieve) was seeking. If he reads clause 6(1), he will find that Ministers are under that duty. These provisions are wholly beneficial. If it is the will of Parliament that something should be done that is incompatible with a convention right, Parliament must be prepared to say so in primary legislation.

The hon. Member for Gainsborough (Mr. Leigh) raised the issue of subordinate legislation that is inevitably incompatible with convention rights. The nature of the primary legislation under which an order is made may be such that any subordinate legislation will necessarily be in conflict with convention rights. If the courts were to have the power to strike down such subordinate legislation, it would, at least indirectly, amount to a challenge to the primary legislation itself. That would place the courts at odds with Parliament. I could understand the concern of Conservative Members if the Human Rights Bill gave the courts the power to quash such subordinate legislation, but it does not do so. Clause 3(2)(c) makes that point abundantly clear.

Mr. Gerald Howarth (Aldershot): Will the Minister confirm that this provision will not have retrospective application?

Mr. Hoon: Clearly, it will apply to legislation in force once the Human Rights Act is itself in force.

I hope that Conservative Members will accept that the amendments address an illusory concern. They are not needed to protect the sovereignty of Parliament. Indeed, without these provisions, the sovereignty of Parliament would be threatened, because we would not be able to give effect to parliamentary sovereignty and to the will of Parliament as expressed in primary legislation. The amendments would tie the hands of the courts and would weaken the protection that individuals receive from convention rights. Therefore, I hope that the Opposition will withdraw the amendment.

Mr. Clappison: This has been an interesting debate, and we have had some good contributions from Conservative Members. Whatever view we may have of the merits of the process for scrutinising secondary legislation, we are united in our desire to express our zealousness in defending parliamentary sovereignty. We are not satisfied with the Minister's response.

I listened carefully to what the Minister said about ultra vires legislation. This point was anticipated if not in my opening speech, which may not have been sufficiently

3 Jun 1998 : Column 434

clear, then certainly in the intervention of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who expressed the same view as I did, but more elegantly and more forcefully. The clause will allow the courts to strike down perfectly good subordinate legislation that is not ultra vires and has no procedural defects merely by considering its merits. The Bill is taking us into new territory. The courts will be able to examine the merits of legislation and to strike it down without reference to Parliament.

The Minister argues that the clause safeguards parliamentary sovereignty. We think that Parliament should be the judge of that. The matter should be subject to parliamentary sovereignty. To make our mark and to register our disapproval of this provision, we shall press the amendment to a vote.

Question put, That the amendment be made:--

The Committee divided: Ayes 129, Noes 324.

Division No. 291
[7.55 pm


AYES


Ainsworth, Peter (E Surrey)
Ancram, Rt Hon Michael
Arbuthnot, James
Atkinson, David (Bour'mth E)
Atkinson, Peter (Hexham)
Beggs, Roy
Bercow, John
Beresford, Sir Paul
Body, Sir Richard
Boswell, Tim
Bottomley, Peter (Worthing W)
Bottomley, Rt Hon Mrs Virginia
Brady, Graham
Brooke, Rt Hon Peter
Browning, Mrs Angela
Bruce, Ian (S Dorset)
Burns, Simon
Butterfill, John
Chapman, Sir Sydney
(Chipping Barnet)
Chope, Christopher
Clappison, James
Clifton-Brown, Geoffrey
Colvin, Michael
Cormack, Sir Patrick
Cran, James
Curry, Rt Hon David
Davies, Quentin (Grantham)
Davis, Rt Hon David (Haltemprice)
Day, Stephen
Dorrell, Rt Hon Stephen
Duncan, Alan
Duncan Smith, Iain
Evans, Nigel
Faber, David
Fabricant, Michael
Flight, Howard
Forsythe, Clifford
Forth, Rt Hon Eric
Fox, Dr Liam
Fraser, Christopher
Gale, Roger
Garnier, Edward
Gibb, Nick
Gillan, Mrs Cheryl
Goodlad, Rt Hon Sir Alastair
Gray, James
Green, Damian
Greenway, John
Grieve, Dominic
Gummer, Rt Hon John
Hague, Rt Hon William
Hamilton, Rt Hon Sir Archie
Hammond, Philip
Heald, Oliver
Heathcoat-Amory, Rt Hon David
Hogg, Rt Hon Douglas
Horam, John
Howard, Rt Hon Michael
Howarth, Gerald (Aldershot)
Hunter, Andrew
Jack, Rt Hon Michael
Jackson, Robert (Wantage)
Jenkin, Bernard
Johnson Smith,
Rt Hon Sir Geoffrey
Laing, Mrs Eleanor
Lait, Mrs Jacqui
Lansley, Andrew
Leigh, Edward
Letwin, Oliver
Lewis, Dr Julian (New Forest E)
Lidington, David
Lilley, Rt Hon Peter
Lloyd, Rt Hon Sir Peter (Fareham)
Loughton, Tim
MacGregor, Rt Hon John
McIntosh, Miss Anne
Maclean, Rt Hon David
McLoughlin, Patrick
Major, Rt Hon John
Malins, Humfrey
Maples, John
Mates, Michael
Maude, Rt Hon Francis
Mawhinney, Rt Hon Sir Brian
May, Mrs Theresa
Moss, Malcolm
Nicholls, Patrick
Norman, Archie
Paice, James
Paterson, Owen
Pickles, Eric
Prior, David
Randall, John
Robathan, Andrew
Robertson, Laurence (Tewk'b'ry)
Roe, Mrs Marion (Broxbourne)
Ross, William (E Lond'y)
Ruffley, David
Sayeed, Jonathan
Shephard, Rt Hon Mrs Gillian
Shepherd, Richard
Simpson, Keith (Mid-Norfolk)
Smyth, Rev Martin (Belfast S)
Spelman, Mrs Caroline
Spicer, Sir Michael
Spring, Richard
Stanley, Rt Hon Sir John
Steen, Anthony
Swayne, Desmond
Syms, Robert
Tapsell, Sir Peter
Taylor, Ian (Esher & Walton)
Taylor, John M (Solihull)
Taylor, Sir Teddy
Townend, John
Tredinnick, David
Trend, Michael
Tyrie, Andrew
Viggers, Peter
Walter, Robert
Wardle, Charles
Whittingdale, John
Widdecombe, Rt Hon Miss Ann
Wilkinson, John
Willetts, David
Winterton, Mrs Ann (Congleton)
Woodward, Shaun
Yeo, Tim
Young, Rt Hon Sir George

Tellers for the Ayes:


Sir David Madel and
Mr. Tim Collins.


NOES


Adams, Mrs Irene (Paisley N)
Ainger, Nick
Ainsworth, Robert (Cov'try NE)
Allan, Richard
Allen, Graham
Anderson, Donald (Swansea E)
Armstrong, Ms Hilary
Ashdown, Rt Hon Paddy
Ashton, Joe
Austin, John
Ballard, Jackie
Barnes, Harry
Barron, Kevin
Battle, John
Bayley, Hugh
Beard, Nigel
Beckett, Rt Hon Mrs Margaret
Begg, Miss Anne
Benn, Rt Hon Tony
Bennett, Andrew F
Benton, Joe
Bermingham, Gerald
Berry, Roger
Best, Harold
Betts, Clive
Blackman, Liz
Blears, Ms Hazel
Blizzard, Bob
Boateng, Paul
Bradley, Keith (Withington)
Bradley, Peter (The Wrekin)
Bradshaw, Ben
Brake, Tom
Brand, Dr Peter
Breed, Colin
Brown, Rt Hon Gordon
(Dunfermline E)
Brown, Rt Hon Nick (Newcastle E)
Brown, Russell (Dumfries)
Browne, Desmond
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Burnett, John
Burstow, Paul
Butler, Mrs Christine
Byers, Stephen
Caborn, Richard
Campbell, Alan (Tynemouth)
Campbell, Mrs Anne (C'bridge)
Campbell, Menzies (NE Fife)
Campbell-Savours, Dale
Casale, Roger
Chapman, Ben (Wirral S)
Chaytor, David
Chidgey, David
Chisholm, Malcolm
Clapham, Michael
Clark, Rt Hon Dr David (S Shields)
Clark, Dr Lynda
(Edinburgh Pentlands)
Clark, Paul (Gillingham)
Clarke, Tony (Northampton S)
Clelland, David
Clwyd, Ann
Coaker, Vernon
Coffey, Ms Ann
Coleman, Iain
Connarty, Michael
Cooper, Yvette
Corston, Ms Jean
Cotter, Brian
Cousins, Jim
Cranston, Ross
Crausby, David
Cryer, Mrs Ann (Keighley)
Cummings, John
Cunningham, Jim (Cov'try S)
Dalyell, Tam
Darling, Rt Hon Alistair
Davey, Edward (Kingston)
Davey, Valerie (Bristol W)
Davidson, Ian
Davies, Rt Hon Denzil (Llanelli)
Davies, Geraint (Croydon C)
Davies, Rt Hon Ron (Caerphilly)
Davis, Terry (B'ham Hodge H)
Dean, Mrs Janet
Denham, John
Dismore, Andrew
Dobbin, Jim
Donohoe, Brian H
Doran, Frank
Dowd, Jim
Drew, David
Dunwoody, Mrs Gwyneth
Eagle, Angela (Wallasey)
Eagle, Maria (L'pool Garston)
Edwards, Huw
Efford, Clive
Ellman, Mrs Louise
Ennis, Jeff
Fatchett, Derek
Field, Rt Hon Frank
Fitzsimons, Lorna
Flint, Caroline
Flynn, Paul
Foster, Rt Hon Derek
Foster, Don (Bath)
Foster, Michael Jabez (Hastings)
Foster, Michael J (Worcester)
Foulkes, George
Fyfe, Maria
Galbraith, Sam
Gapes, Mike
Gardiner, Barry
Gerrard, Neil
Gilroy, Mrs Linda
Godman, Dr Norman A
Godsiff, Roger
Goggins, Paul
Gorrie, Donald
Griffiths, Jane (Reading E)
Griffiths, Nigel (Edinburgh S)
Griffiths, Win (Bridgend)
Grocott, Bruce
Grogan, John
Gunnell, John
Hall, Patrick (Bedford)
Hamilton, Fabian (Leeds NE)
Hancock, Mike
Hanson, David
Harris, Dr Evan
Heal, Mrs Sylvia
Henderson, Ivan (Harwich)
Hepburn, Stephen
Heppell, John
Hewitt, Ms Patricia
Hill, Keith
Hinchliffe, David
Hodge, Ms Margaret
Hoey, Kate
Home Robertson, John
Hoon, Geoffrey
Hope, Phil
Hopkins, Kelvin
Howarth, Alan (Newport E)
Howarth, George (Knowsley N)
Hoyle, Lindsay
Hughes, Ms Beverley (Stretford)
Hughes, Kevin (Doncaster N)
Hughes, Simon (Southwark N)
Humble, Mrs Joan
Hurst, Alan
Hutton, John
Iddon, Dr Brian
Illsley, Eric
Jackson, Helen (Hillsborough)
Jenkins, Brian
Johnson, Miss Melanie
(Welwyn Hatfield)
Jones, Barry (Alyn & Deeside)
Jones, Helen (Warrington N)
Jones, Ms Jenny
(Wolverh'ton SW)
Jones, Jon Owen (Cardiff C)
Jones, Dr Lynne (Selly Oak)
Jones, Nigel (Cheltenham)
Jowell, Ms Tessa
Kaufman, Rt Hon Gerald
Keeble, Ms Sally
Keen, Alan (Feltham & Heston)
Keen, Ann (Brentford & Isleworth)
Keetch, Paul
Kennedy, Jane (Wavertree)
Khabra, Piara S
Kidney, David
Kilfoyle, Peter
King, Andy (Rugby & Kenilworth)
Kingham, Ms Tess
Kirkwood, Archy
Ladyman, Dr Stephen
Lepper, David
Leslie, Christopher
Levitt, Tom
Lewis, Ivan (Bury S)
Liddell, Mrs Helen
Linton, Martin
Livingstone, Ken
Livsey, Richard
Llwyd, Elfyn
Lock, David
Love, Andrew
McAllion, John
McAvoy, Thomas
McCabe, Steve
McCafferty, Ms Chris
McDonagh, Siobhain
Macdonald, Calum
McDonnell, John
McGuire, Mrs Anne
Mackinlay, Andrew
Maclennan, Rt Hon Robert
McNamara, Kevin
Mactaggart, Fiona
McWalter, Tony
Mahon, Mrs Alice
Mallaber, Judy
Marsden, Gordon (Blackpool S)
Marshall, David (Shettleston)
Marshall-Andrews, Robert
Martlew, Eric
Maxton, John
Meale, Alan
Merron, Gillian
Michael, Alun
Michie, Mrs Ray (Argyll & Bute)
Milburn, Alan
Miller, Andrew
Mitchell, Austin
Moffatt, Laura
Moonie, Dr Lewis
Moore, Michael
Moran, Ms Margaret
Morgan, Ms Julie (Cardiff N)
Morgan, Rhodri (Cardiff W)
Morley, Elliot
Morris, Rt Hon John (Aberavon)
Mudie, George
Mullin, Chris
Murphy, Jim (Eastwood)
Norris, Dan
Oaten, Mark
O'Brien, Bill (Normanton)
Olner, Bill
O'Neill, Martin
Osborne, Ms Sandra
Palmer, Dr Nick
Pearson, Ian
Pickthall, Colin
Pike, Peter L
Plaskitt, James
Pollard, Kerry
Pope, Greg
Pound, Stephen
Powell, Sir Raymond
Prentice, Ms Bridget (Lewisham E)
Prentice, Gordon (Pendle)
Primarolo, Dawn
Purchase, Ken
Quin, Ms Joyce
Quinn, Lawrie
Radice, Giles
Rammell, Bill
Rapson, Syd
Raynsford, Nick
Reed, Andrew (Loughborough)
Rendel, David
Roche, Mrs Barbara
Rooker, Jeff
Ross, Ernie (Dundee W)
Rowlands, Ted
Roy, Frank
Ruddock, Ms Joan
Russell, Bob (Colchester)
Russell, Ms Christine (Chester)
Ryan, Ms Joan
Salmond, Alex
Salter, Martin
Sanders, Adrian
Sawford, Phil
Sedgemore, Brian
Shaw, Jonathan
Sheerman, Barry
Sheldon, Rt Hon Robert
Simpson, Alan (Nottingham S)
Singh, Marsha
Skinner, Dennis
Smith, Angela (Basildon)
Smith, Miss Geraldine
(Morecambe & Lunesdale)
Smith, Llew (Blaenau Gwent)
Smith, Sir Robert (W Ab'd'ns)
Soley, Clive
Southworth, Ms Helen
Spellar, John
Squire, Ms Rachel
Starkey, Dr Phyllis
Steinberg, Gerry
Stevenson, George
Stewart, David (Inverness E)
Stewart, Ian (Eccles)
Stinchcombe, Paul
Stoate, Dr Howard
Stott, Roger
Straw, Rt Hon Jack
Stringer, Graham
Stuart, Ms Gisela
Stunell, Andrew
Sutcliffe, Gerry
Taylor, Rt Hon Mrs Ann
(Dewsbury)
Taylor, Ms Dari (Stockton S)
Taylor, David (NW Leics)
Taylor, Matthew (Truro)
Thomas, Gareth (Clwyd W)
Timms, Stephen
Tipping, Paddy
Touhig, Don
Trickett, Jon
Truswell, Paul
Turner, Dr George (NW Norfolk)
Twigg, Derek (Halton)
Tyler, Paul
Vaz, Keith
Vis, Dr Rudi
Wallace, James
Ward, Ms Claire
Wareing, Robert N
Watts, David
White, Brian
Williams, Rt Hon Alan
(Swansea W)
Williams, Alan W (E Carmarthen)
Willis, Phil
Wills, Michael
Winterton, Ms Rosie (Doncaster C)
Wood, Mike
Woolas, Phil
Wright, Anthony D (Gt Yarmouth)
Wright, Dr Tony (Cannock)
Wyatt, Derek

Tellers for the Noes:


Mr. David Jamieson and
Mr. John McFall.

Question accordingly negatived.

3 Jun 1998 : Column 437

Clause 3 ordered to stand part of the Bill.


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