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When a Minister seeks to make secondary legislation, whether under the Bill or otherwise, he is therefore legally required to do so compatibly with the convention rights because secondary legislation is made by Ministers and scrutinised by Parliament, rather than being made by Parliament itself. If secondary legislation is not compatible with the convention rights, the court may strike it down, as it would if the Minister had acted ultra vires in any other way in making it. Your Lordships will, of course, know that the Human Rights Act does not allow a court to strike down primary legislation; instead, a court may draw incompatible primary
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The noble Lord, Lord Goodhart, drew attention in Committee to a provision in Section 21 of the Human Rights Act under which secondary legislation that amends primary legislation is treated as primary legislation for the purposes of the Act. However, if one looks to see where the distinction between primary legislation and secondary legislation arises in the Act, one finds that it has a bearing only on the remedies available to the court should it find the secondary legislation incompatible. In particular, the distinction does not arise in Section 6 and therefore does not change the position that a Minister who makes incompatible secondary legislation is acting unlawfully.
I know that we will come later to the noble Lord’s other amendment, which would make it possible for a court to strike down all secondary legislation made under this Bill, whether or not it amends primary legislation. However, even without that amendment, the position remains under the Human Rights Act that it is not lawful for a Minister to make secondary legislation that is incompatible with the convention rights.
This amendment would require that all secondary legislation made under this Bill would have to be accompanied by a statement of compatibility, similar to the Section 19 statement that appears on the front of every Government Bill presented to the House. In nearly every case—including this Bill—this 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, its provisions are compatible with the convention rights.
It is possible for a Minister to make an alternative statement under Section 19(1)(b) of the Human Rights Act. Such a statement indicates that, although the Minister cannot make a statement of compatibility, the Government nevertheless wish the House to proceed with the Bill.
The Section 19 statement reflects an important distinction under the Human Rights Act: that Parliament is still permitted to act incompatibly with the convention rights. Noble Lords will note that Parliament is expressly excluded from being a public authority in section 6(3) of the Human Rights Act.
It is, however, proper that if the Government are going to ask Parliament to legislate incompatibly, we should be absolutely clear when doing so, which is the point of the Section 19 statement. The option to act incompatibly does not arise for secondary legislation, as I have explained. Therefore, the statement of compatibility with which the Government accompany certain secondary legislation as a matter of convention when it is being scrutinised by Parliament serves only to confirm that the Minister considers the instrument to be compatible. It would, therefore, already be unlawful for the Minister to make secondary legislation that is incompatible.
If a Minister were to indicate that proposed secondary legislation is not compatible with the convention rights, he would effectively be admitting that he was intending to act unlawfully in making it. It is for that reason that I must oppose the noble Lord’s amendment. The
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I hope that I have explained clearly why the Government cannot support the amendment. They will continue as a matter of convention to make such statements, but we would oppose any move to require this in statute for the reasons I have given. I hope that the noble Lord, having followed that, will withdraw his amendment.
Lord Goodhart: My Lords, I am a little puzzled by the explanation given by the Minister. He started by saying that it would be unlawful for any Minister to introduce secondary legislation that is incompatible with the Human Rights Act. As I understood it, he then went on to suggest that, notwithstanding that, it would be possible to make, presumably by using an order, alterations to primary legislation, which by virtue of Section 21(1) of the Human Rights Act would not themselves be unlawful but would have to be dealt with as a matter of incompatibility. Those statements do not seem to fit together very clearly.
Presumably, before the order is submitted to Parliament, when it is in draft, it would be possible to go to the court to say that the Minister had acted improperly because he is introducing legislation which we believe is incompatible with the Human Rights Act, and perhaps to get the court to make an order to stop him proceeding any further with that order. At what stage, if any, does the court become unable to affect the proceedings for the order that introduces something incompatible, except by declaring incompatibility? I am puzzled by this. I will read what the Minister has said in Hansard, but if I am not satisfied, I may feel it necessary to re-table the amendment at Third Reading in the hope of getting more clarification of what the Minister and the Government think the actual position is. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 [Determination of Parliamentary procedure]:
[Amendments Nos. 30 and 31 not moved.]
Clause 16 [Negative resolution procedure]:
Lord Goodhart moved Amendment No. 33:
Orders made under this Part shall be treated for the purposes of the Human Rights Act 1998 (c. 42) as subordinate legislation and not as primary legislation (whether or not they amend primary legislation).”
The noble Lord said: My Lords, I shall deal with the amendment very briefly because we dealt with a large part of its purpose in the previous debate. I draw the attention of the House to paragraph 1.15 of the
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“We therefore remain of the view that a provision should be inserted into the ‘Restrictions’ part of the Bill making clear that no order made under clause 1 of the Bill amending, repealing or replacing any legislation shall be treated as primary legislation for the purposes of the Human Rights Act 1998. We draw this matter to the attention of each House”.
Of course, we all regard the Joint Committee on Human Rights as extremely important and believe that its views must be greatly respected. If its view was adopted, we would avoid the difficulties that seemed to arise in the debate on Amendment No. 29, because it would be perfectly clear that the court would have the power to strike down an order that was incompatible in the same way as it can strike down an order that is made ultra vires, irrationally or without the proper procedure. The amendment, if accepted, would clearly improve the Bill. I beg to move.
Lord Kingsland: My Lords, we share the view of the Joint Committee on Human Rights and support the amendment tabled by the noble Lord, Lord Goodhart, again for the reasons that he has already given.
Lord Bassam of Brighton: My Lords, I think that the noble Lord, Lord Goodhart, in proposing this amendment, seeks strangely to replicate a similar provision in the Civil Contingencies Act. There is a considerable difference between orders made under that Act and orders made under the Bill, in that the former have only a short-term effect, usually for a maximum of 30 days, if I correctly recall that legislation, on which I spent some time. The problems of retrospectivity do not arise if they are struck down. In contrast, orders made under the Bill are intended to make permanent amendments to the law.
This amendment would also lead to a situation where provisions of primary legislation would be divided into different categories. Whether or not the courts could strike the provisions down would depend on whether they had been inserted or amended by subordinate legislation. In some cases, it might be very difficult to disentangle what could be struck down and what could not be. This situation does not technically arise under the Civil Contingencies Act because orders under that Act disapply or modify the application of primary legislation, rather than make textual amendments to it. There are of course other powers to make secondary legislation which textually amends primary legislation. For the purposes of the Human Rights Act, none of these is subject to the rule which Amendment No. 33 seeks to impose on orders made under this Bill.
I have already explained why emergency regulations made under the Civil Contingencies Act are very different from those made under this Bill and secondary legislation made under other enabling powers. Given the other safeguards in this legislation, I do not accept that it is necessary to change the way in which Parliament has decided in the Human Rights Act that incompatibility with the convention rights should be dealt with. I should reiterate the Government’s clear interpretation that it is already
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Moreover, where primary legislation—including as amended by secondary legislation—has been declared to be incompatible by the courts, the Government have always responded positively to that declaration by proposing appropriate remedial action to Parliament. For those reasons, notwithstanding the noble Lord’s point about the Select Committee on Delegated Powers and Regulatory Reform, I cannot support the amendment. I do not think that it matches the purposes of this Bill.
Lord Goodhart: My Lords, I am sorry to have that negative reply to what seems a useful amendment. During this debate, it has become apparent that Amendments Nos. 29 and 33 are quite closely linked and should probably have been grouped. If I bring back Amendment No. 29, as I suggested I might, I would probably bring back Amendment No. 33 with it so that they can be considered together. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Howard of Rising moved Amendment No. 34:
(a) all proposals promoting regulatory principles or removing or reducing burdens received by his government department; (b) his response to those proposals; (c) a summary of the action taken on those proposals, including any increase in regulation that may result; (d) a summary of any other action taken to promote the regulatory principles or remove or reduce burdens, including any increase in regulation that may result; and (e) any order made under section 1 or 2, including any increase in regulation that may result.”The noble Lord said: My Lords, this new amendment develops some amendments which were tabled in Committee. It would require departments to report to Parliament about their steps to reduce regulation and any orders they have made under this Bill. It also addresses the possibility of changes in regulation leading to an increased burden. The previous amendments were criticised by the Government for wasting Parliament’s time or for being unnecessary.
This amendment would ensure that departments make public their steps to reduce regulation. There is already a better regulation portal on the web under the Cabinet Office. While this is a good way to encourage people to report instances of bad regulation, it is not enough to hold the Government to account. Publishing proposals and their responses will save departmental time wasted on responding to duplicate proposals. It will highlight the possibility of making proposals to the wider public and will allow people to show additional support for a proposal already made. The increased transparency would also show what departments were doing towards
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Lord Norton of Louth: My Lords, I rise briefly because I have added my name to the amendment. It strikes me as extremely sensible, not least for the reason just given by my noble friend, which is one of transparency. One would hope that it might also act as an incentive to Ministers actually to get on with deregulation. As we discussed at Second Reading, the real problem is not with Parliament, but with government. Anything that gives a spur to action is to be welcomed.
Lord McKenzie of Luton: My Lords, I start by thanking the noble Lord, Lord Howard of Rising, for introducing the amendment, and the noble Lord, Lord Norton of Louth, for his contribution. Although we are unable to accept it, I have an opportunity to explain what the Government are doing in this area. Amendment No. 34 concerns the procedures in place for ensuring progress in delivering the better regulation agenda. I support the notion that we should be looking constantly to see how well reforms are working. Indeed, no one could argue that this Government do not take seriously their commitment to regulatory reform. Government departments already report on their better regulation work as part of their annual reports, and they have done so for the past two years. Departments are being asked to provide rolling programmes of simplification and set targets for reductions in administrative burdens. Simplification plans will be published shortly. Plans will clearly be expected to list all better regulation proposals developed by departments and summarise how measures to reduce regulatory burdens will be taken forward. Where these proposals require amendments to primary legislation, they may well benefit from the powers in this Bill, and to ensure effective delivery without the need to wait for a Bill.
The better regulation portal referred to by the noble Lord, Lord Howard, is also available to provide an opportunity for businesses, public and voluntary sector organisations, and individuals to make suggestions for where regulation could be simplified. Work is being done to make this process more transparent and to make public all proposals received, along with the departmental responses to those proposals.
Our commitment to deliver on the better regulation agenda is evident in our achievements to date and in our ambitious programme to build on these successes. We have listened to businesses, public and voluntary sector organisations in order to take forward one of the most radical regulatory reform agendas in the world. My concern with the specific amendment proposed here is that in practice it would both replicate existing efforts and impose an unnecessary and bureaucratic set of statutory requirements on departments. What we do not need is a prescriptive and inflexible target on the statute book, especially one which requires that departments focus on continual reporting and detracts from real
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The independent Better Regulation Commission will scrutinise and comment on simplification plans. We also expect the Regulatory Reform Committee in the other place to play a key role in monitoring departments’ progress. We have been working closely with the committee to develop a new and expanded remit to enable it to report on wider regulatory reform issues. Its wider role will complement the work of relevant committees of this House in ensuring that there are consistent and focused efforts to deliver on the Government’s commitment to ease burdens across sectors in the UK. We welcome engagement and suggestions from committees of both Houses on the agenda. For these reasons, I consider the amendment unnecessary and I urge the noble Lord to withdraw it.
Lord Howard of Rising: My Lords, as my noble friend Lord Norton commented, it is lack of action that is the problem. I think it is regrettable that the transparency which this amendment would introduce is not to be pursued by the Government as it would enable any lack of action or action to be monitored by a much wider public. It would perhaps bring those Ministers reluctant to deregulate to account. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 [EEA agreement and EEA state]:
Lord Bassam of Brighton moved Amendment No. 35:
On Question, amendment agreed to.
5.15 pm
Clause 28 [Power to make ambulatory references to Community instruments]:
Viscount Colville of Culross moved Amendment No. 36:
“(1B) Where subordinate legislation creates any new or amended criminal offence the subordinate legislation shall contain, in the text and not solely by reference to a provision of the Community instrument, a description of the conduct which, if proved, would constitute that offence.”
The noble Viscount said: My Lords, with this amendment I am returning to a point that I raised in Committee. I think the noble Lord, Lord McKenzie of Luton, who dealt with it on that occasion, will probably concede that no very careful consideration was given to the points that I raised, but that has now been repaired. Nevertheless, I must set out my stall. I appreciate that all those noble Lords who have not
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The problem concerns the formulation of criminal offences which arise out of the transposition of European instruments into British law. Let me give an example of this. Under instrument 1228 of this year—which covers the very important subject of transmissible spongiform encephalopathy—where any premises are occupied and licensed, an occupier commits an offence if he maintains and operates the premises other than in accordance with,
and there are some fairly substantial penalties.
How do you comply with the requirements of the Community TSE regulations? The instrument earlier states:
have the same meaning here as they do there.
So what is the TSE regulation? It is contained in a schedule and consists of a list of 27 different instruments which have emerged from the European Commission over a period of time, some of them quite recent but many of them amending others. Nowhere in the regulation is there a definition of the offence, simply that you can fail to comply with it.
The Bill is about transparency and reducing burdens, and, under the terms of the Bill, “burdens” include criminal sanctions. It is ordinary good sense that people should understand what they are forbidden to do. I think it is also in accordance with Article 7 of the European Convention on Human Rights that they should know this. There has, however, occurred a massive practice of simply transposing European regulations without ever saying what they mean and what are the offences created under them.
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