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Mr. Tony Benn (Chesterfield): The term "private Bill" refers to the procedure for passing it. However, when it is
passed, it becomes an Act of Parliament. Indeed, in that respect there is no distinction between a private Member's Bill and a Government Bill. Once enacted, it changes the law of Britain either in the City of London or elsewhere. The Minister should give the assurance that Bills that are likely to become Acts will be clear with regard to the convention, and automatically so. Does my hon. Friend agree that the Minister cannot use the excuse that the matter has nothing to do with him because it is a private Bill? He is assisting it and it will end up as an Act of Parliament passed by the House.
Mr. Mackinlay: Absolutely. That is why I return to the point that, if the proposed Act were ever the subject of scrutiny in the courts, the Attorney-General would have to defend the veracity of an Act of Parliament in United Kingdom statute. We surely have a vested interest in avoiding such embarrassment.
The Government cannot say in this debate or subsequently--I am sure that the point will be picked up in another place if the Government continue to ignore it--that they do not have a moral obligation, or one of prudence, to ask the Attorney-General to consider the matter and to report formally to the House on it. The Home Secretary was obviously getting wind of that in his written answer, which created a new category of Bill--one directly assisted by the Government.
When I first became interested in this Bill--on Second Reading, I think--I was amazed that the Government were not only acquiescing in its provisions but directly assisting it. It seems that the Home Secretary's criteria are being met. I see my hon. Friend the Minister looking at me as if butter would not melt in his mouth, yet Government Whips pressurised us not to resist the Bill. Indeed, I remember that they carefully arranged debate on part of it between two pieces of public business. On that occasion, I was told by a Whip that I was a wretched person for keeping other hon. Members in the House late by debating the Bill at some length.
You might like tomorrow, Mr. Deputy Speaker, to scrutinise the Official Report. You would find that no payroll Member had exercised their discretion to join myself, my hon. Friend the Member for Hayes and Harlington and others in the Ayes Lobby. That is because the payroll vote is whipped and hon. Members on it are directly assisting the passage of the Bill. I do not want to labour the point; suffice it to say that such behaviour meets the Home Secretary's criteria.
Mr. Martin Bell (Tatton):
Does the hon. Gentleman agree that it is strange that the Government are not only acquiescing in but encouraging a piece of legislation that is profoundly undemocratic, anti-democratic and belongs not to the 21st century but to the 18th?
Mr. Mackinlay:
Indeed; I was truly amazed by that. There might not be many common denominators among members of the parliamentary Labour party, but I thought that one was a belief in universal adult suffrage. Even if we cannot always persuade our party managers of that for the purposes of our own discussions, I thought that constitutionally we believed in one person, one vote.
That brings me to an important point, which I was going to save for later. I was trying to concentrate on the legal and professional issues, but the intervention of
my hon. Friend the Member for Tatton (Mr. Bell) has reminded me of it. If the Bill is passed without certification of compliance with the human rights convention--I, like many others, do not think that it will receive such certification because it does not so comply--what signals will be sent around the world from what we pride as the mother of Parliaments?
I remember debates in the 1960s and 1970s when the Prime Minister of South Africa used to pray in aid comparisons with the Northern Ireland special powers legislation to legitimise some of his statutes. People who argue that this Bill, as it stands, complies with article 3 of the European convention could therefore also have argued that the constitution of Ian Smith's Rhodesia met such criteria--save for the fact that the country was not in Europe. The criteria would have matched.
Mr. John Cryer (Hornchurch):
The relevant article of the European convention is article 3 of the 1952 protocol, which specifies:
Mr. Mackinlay:
The Bill does contravene the convention. If my hon. Friend had read those words to Ian Smith, he would have said that his electoral law complied with it. Although he might have asserted that, those in this place and elsewhere would almost unanimously have known differently.
We must look into the words of the article to find out what it means. It clearly and inexorably leads one to conclude--I am sure that there is plenty of case law on the matter--that for compliance there must be universal adult suffrage, unimpeded or unadulterated by any special electoral rolls, such as those which are features both of this Bill and of legislation in the unilateral declaration of independence legislature in Southern Rhodesia in the 1960s. It is clearly perverse to think that the Bill would ever meet our obligations under the convention.
I am trying to persuade the House and the promoters, that from a law-making point of view, there is an overwhelming case for accepting new clause 1. If they believe that I am wrong, we shall soon discover who is right, because the Secretary of State will be obliged to have a word with the Attorney-General. I am sure that the promoters would not wish to pass legislation that is inconsistent with the European convention. All I argue is that there should be this test. What is wrong with that? What have the promoters to hide?
Very able staff in the Library drew my attention to a legal opinion which, with the permission of the House, I shall summarise. It expresses the view that the fact that
we decline to consider whether a piece of legislation complies with the European convention could make it ultra vires. The opinion states:
Mr. Cohen:
I trust that I am not making a frivolous intervention on a good argument, but the opinion my hon. Friend has just quoted contains a word that I do not understand--fortiori. It sounds Italian--
Mr. Andrew Dismore (Hendon):
It is Latin.
Mr. Cohen:
As a layman, I do not know whether that word is relevant to the argument. Will my hon. Friend explain the meaning of the word and its relevance, if any, to his argument?
Mr. Mackinlay:
I am not sure whether I am grateful to my hon. Friend for that intervention. However, I have had the opportunity to read the legal opinion in its entirety. It is manifest that the United Kingdom Parliament is in danger of the acute embarrassment of having a statute scrutinised in the courts--either the UK courts or the Strasbourg court testing it against the European convention on human rights--and its being held to be ultra vires and hence invalid. If that happened, it would be a bad day for Parliament.
Although the A-level textbooks on the British constitution state that it is not possible for the courts to look at the Official Report during a court case, my understanding is that the matter is not that simple. It would be drawn to the court's attention that, this evening, I--and, no doubt, others--drew to the attention of Her Majesty's Government their obligations under the Human Rights Act. If the Minister is not prepared to concede tonight that there is at least a point that requires further examination, the court will note the flagrant disregard and arrogance displayed by the Government when they were cautioned about their duties and obligations.
"The High Contracting Parties undertake to hold free elections . . . under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature".
If this Bill becomes law, it seems that it will contravene article 3. Will my hon. Friend comment on that?
"the requirement for a written statement under s 19"--
of the Human Rights Act--
"might have important effects on rules governing judicial recognition of Acts of Parliament. The making and publication of the statement might be regarded as conditions precedent to the legal power of either House of Parliament to proceed to consider, a fortiori, to approve, the Bill. If so, it will give rise to an innovation in United Kingdom constitutional law, in that it will open up the possibility that judges might hold legislation purportedly passed without a s 19 statement having been made to be invalidated by procedural ultra vires in the form of a failure to comply with a condition precedent to the exercise of the power to legislate . . . it would perhaps be possible for a court to treat s 19 as introducing a new requirement to the rule of recognition applicable to statutes, breach of which would invalidate a measure purporting to be a statute."
To a layman like me, that means that the fact that the provisions of section 19 have not been fulfilled in respect of the Bill or any other private Bill might make such Bills ultra vires.
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