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The noble Lord said: Amendment No. 84 requires a Minister to make a statement that in his opinion an order is compatible with the European Convention on Human Rights. I tabled my amendment before the noble Lords, Lord Goodhart and Lord Maclennan, tabled their Amendment No. 85. I am sure that their drafting is more appropriate than mine, and I certainly will not object if the Minister says that he intends to accept Amendment No. 85 rather than Amendment No. 84.
Under Section 19(1)(a) of the Human Rights Act, a Minister introducing a Bill must declare whether, in his view, the Bill is compatible with the convention rights. That is an express duty, and it places an onus on the Minister to consider convention rights when bringing a Bill forward. It is not a case of simply going through the motions, since the Joint Committee on Human Rights will not necessarily accept that the Minister is correct in believing that the Bill is compatible. A Minister may have to justify his claim.
The Joint Committee has been extremely active in considering whether Bills comply with the convention and other human rights instruments to which the United Kingdom is a party. In the first three years of its existence, it drew the attention of each House to about 100 Bills out of the 300 it considered. There has been considerable correspondence with Ministers, all of which has been published. As a consequence of its
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If we accept that the Section 19 requirement is appropriate and has served a useful purpose, there should be a similar requirement in respect of orders made under this Bill. As the Constitution Committee pointed out in its report on the Bill, Parliament is delegating its authority to change the statute book. The committee states, at paragraph 59:
“We see considerable merit in requiring Ministers to treat draft orders in similar ways to bills in relation to explaining and certifying compliance with Convention rights”.
Providing for such a requirement will deliver the same benefits as with Bills. In this case, the orders willbe drawn up in departments, rather than by parliamentary counsel. The knowledge that an order has to carry a compatibility statement and that the statement may be subject to scrutiny by the Joint Committee will help to focus minds, contributing to the development of the culture so ably identified by the noble Baroness, Lady Corston.
The case for this provision is both clear and compelling. I beg to move.
8.30 pm
Lord Goodhart: It is absolutely right that a compatibility test should be required here in the same way as is the case for a Bill. It is already an accepted practice that when affirmative resolutions are madeto approve secondary legislation, a statement of compatibility should be made by the Minister introducing them.
My amendment is similar in intention to that moved by the noble Lord, Lord Norton of Louth. The difference is that my amendment specifically requires that the Minister should make a positive statement that the provisions are compatible with the Human Rights Act. If a Minister acting in good faith is unable to make that statement, the Government should proceed by primary legislation, not by order, because it is self-evident that the proposal must be controversial.
Therefore, it would be an abuse of power to use procedure under the Bill for purposes that are recognised as being incompatible with convention rights. We should not be more generous in allowing an incompatible order to stand when the Minister acts in good faith, but under a mistaken view of the Human Rights Act. My amendment is based on a provision having the same purpose as that in the Civil Contingencies Act 2004. The width of the powers given by the Bill justify more rigid treatment than the limited Henry VIII powers, exercisable for the specific purpose of the Act that confers that power.
Lord Henley: I have never been reassured when I have seen the names of some Ministers attached to some Bills, certifying that they comply with the Human Rights Act. I am thinking of some Bills that have emanated over the past few years from the Home Office. Having said that, if it were a requirement for Bills to have such certification from Ministers, I do
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Lord McKenzie of Luton: I thank the noble Lords, Lord Norton of Louth and Lord Goodhart, for their amendments and for raising this topic—and the noble Lord, Lord Henley, for his contribution—although I would hope that noble Lords will be convinced that these amendments are unnecessary.
As Ministers of the Crown are public authorities for the purposes of the Human Rights Act, and Section 6 of the Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with the convention rights, all orders made under this Bill must be compatible with the convention rights. There is simply no alternative.
Noble Lords have referred to and are familiar with the Section 19 statement that appears on the front of every government Bill presented to your Lordships’ House. In nearly every case, including this Bill, that is a statement of compatibility under Section 19(1)(a) of the Human Rights Act. It certifies that, in the opinion of the Minister in charge of the Bill, the provisions of the Bill are compatible with the convention rights. But there is a real and practical purpose to having such a statement, for it is possible to make an alternative statement under Section 19(1)(b) of the Human Rights Act.
A statement under that section would be a statement that, although the Minister cannot make a statement of compatibility, the Government nevertheless wish the House to proceed with the Bill. Section 19(1)(b) statements are rare. In fact, only once have the Government had to give such a statement on first introduction of a government Bill into Parliament. But the point of the statements under Section 19 is that it remains possible for Parliament, if it so chooses, to pass primary legislation that is incompatible with the convention rights.
It is, however, proper that if the Government are going to ask Parliament to legislate incompatibly, we should be absolutely clear when they are doing so. In this way, the Section 19 statement serves as a starting point for the scrutiny of the Bill by Parliament.
I know that, as a matter of procedure, the Government make statements of compatibility for secondary legislation that is subject to the affirmative resolution or super-affirmative procedures, or which amends primary legislation. As your Lordships may recall, the undertaking that the Government would do so was made to your Lordships’ House by the late Lord Williams of Mostyn. Similarly, in another place, my honourable friend Jim Murphy undertook that the Government would, again as a matter of practice, give statements of compatibility for orders made under this Bill. I do not seek to go back on those undertakings.
It is important to realise, however, that such statements of compatibility only confirm that which already must be the case—that in the Minister’s view the order is compatible with the convention rights.
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Lord Goodhart: Is that correct? Surely, the Human Rights Act provides that secondary legislation amending primary legislation should be treated for the purposes of the Human Rights Act as itself being primary legislation. Therefore, the Minister can then introduce an order under this Bill amending primary legislation that would be treated as primary legislation for the purposes of the Human Rights Act and, therefore, could not be quashed by the court—it would simply be declared incompatible. That comes up in relation to an amendment that I will move later.
Lord McKenzie of Luton: The advice is that, whatever the nature of the secondary legislation, Ministers have to comply and the legislation has to be compatible. In light of the noble Lord’s comments, we should look at that again. If his point was right that may well change the position. No Minister may, by virtue of Section 6, ever make incompatible secondary legislation. Perhaps we should follow this up outside our debate.
While I stand by our undertakings, I would not wish to enshrine in statute a procedure that is, with the greatest respect to those undertakings, confirming something that is already compulsory. Indeed, it could even give the false impression that it would be legitimate for the Minister to make secondary legislation that he considers to be incompatible with convention rights. While I understand completely the intention behind Amendments Nos. 84 and 85, and while I reiterate the undertakings that the Government have given, I invite the noble Lord to withdraw the amendment.
Lord Norton of Louth: I am not particularly persuaded by the Minister for two reasons. The noble Lord, Lord Goodhart, referred to the first reason; as he said, we will come back to the issue of status. It clearly needs to be investigated. Secondly—this is why I prefer the amendment of the noble Lord, Lord Goodhart—I can see a case for arguing that when a Minister indicates, they have complied with the duty they have to comply with, particularly in the context of the argument that I developed about a culture of justification. I have concerns but I do not intend to push my amendment, not least because I defer to the noble Lord’s amendment and I find persuasive the reasons that he gave. I do not intend to persist with my amendment but I suspect that the noble Lord may wish to come back later in light of what has been said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Howard of Rising moved AmendmentNo. 85A:
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The noble Lord said: This amendment is designed to ensure that any explanatory document that accompanies the draft order also includes an indication of where burdens may be increased or imposed. It is clear that the Bill has the capacity to increase burdens as well as to reduce them. None of us would like to see increased burdens. The amendment is entirely straightforward and would ensure that, at the very least, Parliament is fully informed of the effect of a draft order before deciding which procedure under Clause 16 should apply. I beg to move.
Lord Bassam of Brighton: The power to remove or reduce burdens resulting from legislation is provided in Clause 1. As well as removing or reducing burdens, new burdens could also be added.
It is important that orders should be able to impose new burdens. When an order removes a burden, this will often need to be replaced with a smaller, better perfected and more proportionate and refined burden. For instance, perhaps a business is currently inspected five times a year for its compliance with a particular regulation, which takes up to five man-hours. This amendment would prevent an order removing this requirement and replacing it with a requirement for the business to carry out self-assessment once a year, which takes up one man-hour, as this would be a burden to which the business was previously not subject.
The ability to add new and, in this case, more proportionate burdens was a key improvement of the 2001 Act over its predecessor, the Deregulation and Contracting Out Act 1994. More than two-thirds of orders that have been made under the 2001 Act imposed new but more refined and appropriate—and, I would argue, ultimately more proportionate—burdens.
Clause 15 provides that for orders under Clause 1, the Minister must lay an explanatory document before Parliament, including an assessment of the extent to which the orders would remove or reduce any burden or burdens. Amendment No. 85A adds to that requirement so that the explanatory document must also detail any burden or burdens imposed by the order.
I do not oppose the principle that the order-making process should be transparent. I could fairly argue that that is what we are trying to establish. In practice, where orders add any new burdens as defined in Clause 1, the Government would expect any reduction or increase in burdens to be detailed in the proposal’s impact assessment, which will be made publicly available. The parliamentary committees would likely consider the burdens imposed or increased as part of their scrutiny of individual orders.
I understand and appreciate the principle behind Amendment No. 85A. I simply argue that it is disproportionate in its effect and is already covered by the process that we have put in place that will, of course, strengthen our impact assessments. I believe that the noble Lord and I are in the same area as regards our intent, but we have got there first.
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8.45 pm
Lord Howard of Rising: I thank the Minister for that answer. If the Government expect to include a full explanation, I cannot see that they can have a problem in including on the face of the Bill that it should include any burdens that may be added, which at the same time can describe the burdens that are being omitted. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendments Nos. 86 and 87:
On Question, amendments agreed to.
The Deputy Chairman of Committees (Lord Geddes): I must advise the Committee that Amendment No. 88, while in the prime name of the noble and learned Lord, Lord Lloyd of Berwick, is also in the name of the noble Lord, Lord Bassam of Brighton.
Lord Bassam of Brighton moved AmendmentNo. 88:
On Question, amendment agreed to.
Lord Bassam of Brighton moved AmendmentNo. 90:
On Question, amendment agreed to.
Clause 15, as amended, agreed to.
Clause 16 [Determination of Parliamentary procedure]:
Lord Norton of Louth moved Amendment No. 91:
“( ) Once a draft order is laid before Parliament under section 15, the super-affirmative resolution procedure under section 19 shall apply, unless within 30 days either House of Parliament determines that, for orders laid under sections 1 or 2, the negative resolution procedure under section 17 or the affirmative resolution procedure under section 18 should apply, in which case that procedure shall apply.”
The noble Lord said: Mine is the lead amendment in what is a rather large group of amendments. The purpose of my amendment is to ensure that Parliament exercises the responsibility to determine the procedure to be adopted in respect of an order under the Bill. As the Bill stands, the Minister responsible for an order recommends that it be considered under the negative, affirmative, or super-affirmative resolution procedure. Within the set time limit, either House can determine that an order be
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I appreciate that ultimately Parliament can determine the procedure. However, I wish to shift the onus from the Minister to Parliament and for Parliament to adopt a proactive rather than a reactive role. My reasons are twofold. First, in terms of principle, I believe that Parliament should have greater responsibility than it presently has for determining its business. The British Parliament, or rather the British House of Commons, is distinctive among legislative chambers in the extent to which the Executive determine the business of the House. Experience elsewhere shows that allowing a chamber greater say over its own timetable does not prevent the Government getting their business. However, it can be of value, in ensuring that the time is more effectively used in subjecting Government to scrutiny. I certainly believe that Parliament itself should be, as far as possible, the master of its own procedure. That is my starting point.
My second point is specific to this provision. As the Bill stands, there is a danger of Parliament missing the significance of a particular order. A Minister may recommend that an order be subject to the negative resolution procedure and each House may assume that it is not of great import, focusing instead on orders recommended for one of the other procedures. If a committee does not recognise its significance, I doubt whether the Chamber will do so. A great deal rests on the vigilance of the committees.
Under my amendment, Parliament would determine the procedure with the default option being the super-affirmative resolution procedure. To my mind, that has the double benefit of giving greater responsibility to Parliament—it moves to a proactive rather than a reactive role—and it ensures that no order slips under the net, with an order of some significance getting through under the negative resolution procedure. Under my amendment the responsibility rests on each House to check an order as soon as it is laid by a Minister and to decide whether it merits being moved from the super-affirmative to the affirmative or negative resolution procedure. It places a far greater onus on Parliament and it means that no order is neglected.
I have a great deal of sympathy with Amendment No. 79 in the name of the noble Lords, Lord Goodhart and Lord Maclennan. They make an important point regarding primary legislation and I fully support the case that they make. I do not think that their amendment is necessarily incompatible with mine. I can see a case for ring-fencing orders that create or repeal primary legislation, subjecting them to the affirmative or super-affirmative resolution procedure. I think we could possibly bring together the two amendments to ensure that orders are subject to the appropriate level of resolution procedure, with the level of ministerial discretion or involvement in determining that limited or removed altogether. The more we can do to strengthen the involvement of Parliament in the process the better. I beg to move.
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Lord Goodhart: A large number of amendments in this large group are in the names of myself and my noble friend Lord Maclennan. I refer to Amendments Nos. 92, 93, 97 to 100, 103 to 105, 108, 110 and 111.
Before I get onto my own amendments, I find the amendment of the noble Lord, Lord Norton of Louth, extremely persuasive. It is important that powers to deal with orders of this kind should as far as possible be parliamentary rather than ministerial, given that the amount of scrutiny that Parliament will be able to give them would be far less than for primary legislation. My only comment on the noble Lord’s amendment is that the super-affirmative resolution procedure should apply unless within 30 days both Houses of Parliament determine that another resolution would be appropriate.
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