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Mr. Cash rose—

Mr. Allan: I shall give way to someone who is a lawyer.

2.30 pm

Mr. Cash: Does the hon. Gentleman accept that some people do not believe that Lord Lester was right to assert that the 1998 Act is adequate to deal with all those contingencies? I hope that he will not fall into the same trap as Lord Lester, who asserted that that was why the Liberal Democrat Opposition would not support the official Opposition in the House of Lords yesterday.

Mr. Allan: I accept the hon. Gentleman's point that disagreements remain. However, I must disappoint him by saying that the divergence on that particular issue between the Whigs in the Conservative party and the modern Liberal Democrats remains. We will not support amendment (a) because the nearest that we can get to a constitutional position is to continue to support and assert the supremacy of the 1998 Act, which acts as a kind of modern constitutional framework guaranteeing the rights of citizens in relation to the actions of the Executive.

We recognise that all legislation must be certified as compliant with the 1998 Act, which is a difference between the 1998 Act and other legislation referred to in amendment (a). The clearest way in which the part 2 provisions can proceed is to collect different Acts of Parliament, such as those in the amendment, and insert them into the Bill, but that will not give the ordinary citizen the safeguards that they are looking for on freedom from oppressive or inappropriate regulations. I accept the divergence of opinion and am sure that the hon. Gentleman will ably advance the argument for the inclusion of other legislation.

It is important that all those who are concerned about relations between the citizen and the state should seek to bolster and reinforce the 1998 Act rather than undermine it. Sadly, some of those who seek to challenge this Bill also sought to challenge the 1998 Act as an alien or foreign import. The provisions of the 1998 Act are important and all regulations should comply with them. Now that the 1998 Act cannot be altered by regulations, we have the best possible framework to guarantee the citizen's constitutional rights in respect of regulations. It would be better still if the Government were to introduce proposals on a written constitution meaning that the provisions of the 1998 Act cannot be overturned, even by a simple majority in Parliament. We would prefer such a constitutional system, but we have not got it. Amendment No. 46 takes us as near as we can get to clarity. Sadly, amendment (a) would not enhance that clarity, but it would dilute the 1998 Act's particular and special position.

Mr. Cash: Let there be no doubt that what Lord Lester said in the other place yesterday and what the
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hon. Member for Sheffield, Hallam (Mr. Allan) has just said demonstrate the differences between us. Although the Government were pulled kicking and screaming to include the 1998 Act, the words that they sent to the Joint Committee on Human Rights when the Committee sought to include the 1998 Act in the first place were fairly derogatory.

The 1998 Act is inadequate in itself to deal with the questions. That brings us to an interesting issue, which is also exemplified by the Government's agreement to the charter of fundamental rights in the European constitution—dialogue is currently occurring between Strasbourg and Luxembourg on how to resolve that matter. The plain fact is that the charter of fundamental rights might have appeared in the Bill instead of the 1998 Act, or both of them might have been included. In both instances, it is assumed that the arrangements set out in those international treaties should effectively take supremacy over laws made in this Parliament according to constitutional arrangements that have developed over many centuries.

For example, we have just heard mention of habeas corpus. I have referred to the great authorities on that subject, in particular the chapter in Bradley and Ewing's "Constitutional and Administrative Law", which points out that, with respect to the question of habeas corpus, in the context of article 5(4) of the European convention on human rights, a divergence of view has developed. That divergence of opinion could be dealt with by amending section 31 of the Supreme Court Act 1981 to add the forms of relief that may be granted in an application for judicial review.

We should have grave reservations about displacing the Habeas Corpus Act 1816 in favour of provisions emanating from the European convention on human rights. The Government hope that the European constitution will go through, in which case the charter of fundamental rights would be incorporated and exclusively adjudicated upon by the European Court. That would move us into completely different territory, because it would override the provisions contained in these enactments.

We are getting into deep waters, and, thanks to my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), I am glad that we have an opportunity to debate the matter at the last minute, because such debate has been excluded during the Bill's passage. I could enlarge on that matter, but we are running out of time, and I am extremely concerned that amendment (a) should make as much progress as possible.

Mr. Shepherd: The hon. Member for Sheffield, Hallam (Mr. Allan) is right about Lord Lester, who was one of the progenitors of the 1998 Act and who, along with the Government, was instrumental in creating its form. My problem is not with the inclusion of the 1998 Act: Conservative Front-Bench Members and the hon. Member for Sheffield, Hallam know that I submitted to the Committee, of which I was not a member, a list of Acts, of which the 1998 Act was one, and the Committee debated it. The purpose of amendment (a) is to provide
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the key instances in which the Government would require primary legislation to undermine some of the contentions of those Acts.

Mr. Hogg: The fact that the Bill entrenches and protects human rights legislation is important, because it will enable judges to interpret regulations against the background of the articles in the human rights legislation, which provides a degree of protection. I shall not go on, because the Minister must reply.

Ruth Kelly: I recognise the sincerity with which the points have been made in debate, but I argue that amendment (a) would weaken the protections inherent in the Bill, and, on behalf of the Government, I strongly feel that we should resist it.

The Government always intended the Bill to be compatible with the 1998 Act, and the hon. Member for Sheffield, Hallam (Mr. Allan) understands that point, but we welcome the additional certainty that has been created by its inclusion in the Bill. However hard one tries to agree a list of constitutionally important Acts that should be protected and put in the Bill, the list would quickly be superseded by other Acts and become redundant. Indeed, I believe that in some sense it could even subject the House to ridicule.      

Perhaps more importantly, there is a real danger that any list of constitutional enactments, even were it agreed, will at some point be incomplete and partial. Such a list, which could not be amended, could lead a court to conclude that it was exhaustive and that Parliament envisaged that constitutional enactments not specified in the Bill could be amended by way of emergency regulation.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I was on the Committee, but have held back from saying anything until now. I would say this to the Minister: first, the list could be expressed as not being exclusive; and secondly, she has just given the best justification for a sunset clause.

Ruth Kelly: Not at all. At any point in time—during an annual, a three-year or a five-year process—the list would, by its nature, be partial and incomplete, thereby weakening the safeguards inherent in the Bill. Once Parliament begins to list enactments that cannot be amended there is a real risk that a court could conclude that, notwithstanding the other provisions of the Bill, any enactment that is not on the list could be amended.

The Government remain convinced that the absence of an express power to amend constitutionally important legislation, coupled with the clear expression of the purposes for which regulations can be made and the safeguards in the Bill that I outlined, ensure that substantive amendments to such legislation are not possible by way of emergency regulation. I accept that that approach lacks the transparency of an express provision for each constitutional enactment in the Bill, and if we thought that we could protect them from inappropriate amendments by including them in the Bill, we would do so. Given that it is not possible to craft an amendment to the Bill that protects the constitutional fabric of the UK, it is better to rely on the
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implied effect of the Bill as drafted, which achieves the effect that we all wish for by ensuring that substantive amendments cannot be made to constitutional enactments.

I hope that I have made it clear to the House that any attempt to do otherwise would not offer the protection that we all seek, but could merely undermine the protection that is already there. Because this is such a serious matter, I would argue that it is very important that we do not accept the amendment on constitutional enactments and that the House accept the Government's position, which will ensure that the safeguards are maximised and that the constitution is as fully protected as possible.

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