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The hon. Lady is making the case that the Human Rights Act is entrenched, so it is appropriate to name it in the Bill. However, it is not entrenched, because primary legislation passed by the House could do away with it. That route would be open to the Government if they were dissatisfied with the Habeas Corpus Act 1816, the Bill of Rights, the Act of Settlement 1700 or any of the measures listed in the amendment. We are seeking protection for what are
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considered fundamental steps in our march to liberty. There is nothing distinctive about the Human Rights Act apart from the fact, the hon. Lady suggests, that primary legislation is required to amend, change or repeal it. However, her case is not a good one, because the same argument applies to the other measures.
Ruth Kelly: The hon. Gentleman, to give him his due, makes an extremely good point that the Human Rights Act is not entrenched, as it could be overturned by primary legislation. He also puts his finger on the fact that that could not be done with emergency powers. The House would have to debate the matter and use primary legislation to change the Act.
Mr. Hogg: I should know the answer, but will the hon. Lady confirm that the Government can derogate from the Human Rights Act without coming to the House? In other words, if an article in the Act is thought embarrassing in the context of the regulations, a Minister could derogate from it.
Ruth Kelly: Let me reiterate the point about the safeguards in the Bill. The Human Rights Act could not be altered, as I understand it, through emergency regulation. If it becomes appropriate to change it and the way in which it operates, that would be done through primary legislation. At that point, I would expect protection for the Act to be reconsidered. If there were to be a derogation from the Act, there would have to be an order approved by both Houses, so that, too, is an essential safeguard in the Bill.
Mr. Bercow: The Minister has made effective use of additional information timeously provided. She said that, in the circumstances envisaged, another Order in Council would be required, and she invoked that point as evidence that there would be parliamentary scrutiny. Can she confirm that that new Order in Council would be capable of debate?
Ruth Kelly: I can confirm that the order would be subject to the safeguard to which the hon. Gentleman refers. It would be debated by both Houses and would have to be approved by both Houses. If not, it would fall. That is a critical safeguard.
We have accepted the arguments that were made in the other place that protection in the case of the Human Rights Act should be made explicit. We do not think that that is a necessary protection, but it is desirable to create some degree of certainty on the matter.
I am grateful to the Minister, but we need greater clarity in respect of the point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). We are in a state of derogation, as a result of a ministerial decisionnot a decision of the House, though the consequences werethat the life of the nation is currently threatened. On that basis, the Government set aside a contention in the Human Rights Act. All of this is outwith the cognisance of the Bill. That is what puzzles some of us and needs reconciliation. Primary legislation is indeed needed to
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change the Human Rights Act, but derogation from it is a ministerial, Executive or Crown function predicated on existing anti-terrorism laws and habeas corpus.
Ruth Kelly: The hon. Gentleman is really making a point about the interaction between Parliament and the Executive in this and other cases and the application of the Human Rights Act, rather than about something that applies solely to the exercise of emergency powers. I have made it clear that, under the emergency powers, the Human Rights Act would have to be respected.
I said that derogation would have to be approved by both Houses. There would be a debate and Parliament would have to be content that it was appropriate. I set out earlier, and in the previous debate, the additional safeguards that are in the Bill, compared with the predecessor legislation. I would argue that the safeguards go much further than the previous legislation and are appropriate.
Lords amendments Nos. 41 and 46 provide protection for part 2. It is important that part 2 should similarly be incapable of being amended by emergency powers in order to ensure that the tests and protection that it contains cannot be amended. The Bill expressly provides that emergency regulations cannot be used to modify part 2. The Government have amended the Bill to move this prohibition from the clause on scope to the clause on limitations on emergency regulations, where it sits more naturally.
On amendment (a), the Government are convinced that no further pieces of legislation require express protection. Adding a list of constitutional enactmentswe have already debated this pointto be protected from the amendment would only weaken the safeguards in the Bill. As a consequence of the way in which legislation is made, there is room for legitimate disagreement on which enactments contain provisions of constitutional importance, and we do not believe that it would be possible to prepare an accurate list of enactments that ought to be protected.
Take, for example, the devolution Acts. Some would argue that they are of great constitutional importance. Those less sympathetic to devolution may not agree. There are arguments both ways. The Acts alter the distribution of powers and the way that parts of the country are run. On the other hand, they do not affect the sovereignty of Parliament or the fundamental rights of individuals. There would be a danger that, if the list were not entirely comprehensive, a partial list in the Bill would undermine the protection of Acts that were not cited in it. Therefore we cannot accept the amendment on that point.
Mr. Heald: We welcome Lords amendment No. 42, which requires a person making emergency regulations to have regard to the importance of ensuring that Parliament, the High Court and the Scottish equivalent can conduct proceedings in connection with the regulations or actions taken under the regulations. The matter was raised in the other place by my noble Friend Baroness Buscombe and by other Conservative peers. It is good that the Government responded and Lords amendment No. 42 emerged. A little credit is due for that.
On Lords amendment No. 46, we have argued throughout the course of the Bill for the protection of a group of statutes to ensure that civil liberties are
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respected. On Report in this place, the debate was guillotined. In the other place, peers were able to find the time and minds were changed. The Government agreed to protect the Human Rights Act, saying that it was right to do that in the interests of certainty.
If it is right to do that for the Human Rights Act, we cannot understand the Government's approach when they say that it is not also right to do so in respect of the other important Acts of Parliament identified by the Joint Committee on Human Rights that we have suggested on previous occasions. The list has been narrowed by my hon. Friend the Member for Stone (Mr. Cash), who is proposing amendment (a). The Acts set out there are the bedrock of our constitution.
Ministers say that the provision is not required. They argue that, if there is no provision allowing amendment of constitutionally important legislation, it cannot take place. They said that about the Human Rights Act, and they changed their mind. If it is right to have that certainty and that declaratory effect for one important part of the bedrock of our constitution, why can we not do it for the others?
Mr. Shepherd: In the Government's responses to the Joint Committee on Human Rights, they cited a Law Lords judgment about constitutionally important Acts, such as the Human Rights Act. In other words, they identified one of those constitutionally important Acts. The other Acts listed in amendment (a) are undoubtedly constitutionally important and of equal standing to the Human Rights Act within the framework of law. There cannot in logic be an argument against the inclusion of the specified Acts.
Mr. Heald: My hon. Friend is right. How can the Government say that it is necessary in the interests of certainty to list a particular Act, and then say, "Oh, but we'd like to retain the uncertainty in respect of others."? I agree that that is an illogical position.
Mr. Allan: Amendment No. 46 seeks to make an important change to the Bill. My Liberal Democrat colleagues in another place would modestly lay some claim to having persuaded the Government to accept it. Throughout the course of the Bill we have argued for the importance of the Human Rights Act to be respected by it. During the Bill's passage through the House, we were able to secure another concession, so that in clause 20(5)(b)(iv) we now have a requirement for any regulations brought under part 2 to be certified as compliant with the Human Rights Act.
In a sense, amendment No. 46 is the other part of thatthe braces to the belt. It states that any regulations introduced under part 2 must be compliant with the Human Rights Act, and that those regulations in turn cannot modify the Human Rights Act. That provides a certain amount of protection, such that any regulations under part 2 will have to be compliant with the Human Rights Act.
We believe that there is a particular status to the Human Rights Act. We as a party are constitutionalists: we argue in favour of a written constitution. We do not have one and we do not expect the country to develop one between now and the end of this parliamentary Session, so we seek to develop some notion of a
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constitution in the legislation that comes before us. Although I am not a lawyer, I paid close attention to the words in the other place of my noble Friend Lord Lester of Herne Hill, who is an eminent lawyer in that area. He advanced a cogent case for the particular position of the Human Rights Act 1998 in English legislation.
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