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Lord Kingsland: To the extent that I understand what the noble and learned Lord is saying, I do not accept that the amendments that we have tabled are wrecking amendments. I would need, at the end of the process, if he had acceded to the amendments, to reflect on the ultimate shape of the Bill and to see what position the Opposition would take at a subsequent stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale had given Notice of his intention to move Amendment No. 10:

Page 2, line 2, leave out ("take into account") and insert ("follow").

The noble and learned Lord said: I have spoken to this already in connection with the previous amendment.

[Amendment No. 10 not moved.]

[Amendment No. 11 not moved.]

Lord Williams of Mostyn moved Amendment No. 12:

Page 2, line 18, leave out second ("the").

The noble Lord said: This is an economic amendment which leaves out the word "the", which is redundant. I beg to move.

On Question, amendment agreed to.

Lord Henley moved Amendment No. 13:

Page 2, line 21, at end insert--
("( ) Any rule made under this section shall be contained in a statutory instrument which shall be laid before Parliament and shall be subject to approval by resolution of each House of Parliament.").

The noble Lord said: Again, this is a relatively simple amendment which seeks that any rule made under subsection (3) should be subject to the affirmative resolution procedure before both Houses. That was addressed by the Delegated Powers and Deregulation Committee in its report printed on 5th November and referred to at paragraph 31.

I believe that that is the first reference that we have had this afternoon to that report. I hope that we shall have an assurance from the Minister or the noble and learned Lord the Lord Chancellor that they will take note, as we always did, of the report of that committee. It has made a number of suggestions, all of which should be followed.

Following that report, we tabled Amendment No. 13 and I see that that has been grouped with government Amendments Nos. 105 to 108 which I assume achieve more or less what I set out to achieve in my amendment, but no doubt those government amendments achieve it in a more efficient manner. I should like an assurance

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from the Minister that that is the case and that the affirmative rather than the negative resolution procedure will be followed. If I have that assurance, I shall obviously withdraw my Amendment No. 13 and we can deal with the government amendments when we reach them in due course.

Lord Williams of Mostyn: I am most grateful for the noble Lord's approach. I shall deal first with Amendment No. 13 and it may be convenient if I speak also to government Amendments Nos. 105 to 108.

I deal first with Amendment No. 105. That amends Clause 20 in order to provide a procedure for making rules, other than rules of court, under Clauses 2(3) or 7(8). By virtue of Amendment No. 108 to Clause 20, those rules are to be subject to the negative resolution procedure. That is the normal procedure for rules of court as, for example, in relation to rules made under the Magistrates' Courts Act 1980 and the Supreme Court Act 1981. Our amendments--and I believe that this is the assurance which the noble Lord seeks--are exactly in line with the comments made in paragraphs 31 to 33, to which the noble Lord, Lord Henley, referred, of the recent report on the Bill by the Delegated Powers and Deregulation Committee which noted the omission of the procedure from the Bill.

Amendment No. 13, which I understand will not be pressed, would make rules of court in Clause 2 and other rules made under Clause 2 subject to the affirmative resolution procedure. It goes much further if it is intended as a response to the Delegated Powers and Deregulation Committee because it requires the rules to be subject to the affirmative resolution procedure, which we think is unnecessary. Those are technical rules whose only purpose is to ensure that the Strasbourg jurisprudence is considered in an appropriate form by the courts and tribunals which will be interpreting the convention rights.

Amendment No. 106 is a technical amendment and is consequential on Amendment No. 105. "Any such instrument" in Clause 20(2), which refers back to "statutory instrument" in Clause 20(1), needs to become "any statutory instrument" because the insertion of a new subsection before Clause 20(2) by the first amendment prevents a reference back in the existing terms. Therefore, that is a tidying amendment.

Amendment No. 107 corrects a contradiction in Clause 20(2) and (3). Subsection (2) requires a statutory instrument under Clause 16--whether under subsection (2) or (7)--to be laid before Parliament, but not to be subject to any particular procedure. Subsection (3) makes an order under Clause 16(2) subject to the draft affirmative resolution procedure. This amendment provides that the reference in subsection (2) is to Clause 16(7) only rather than to Clause 16 as a whole.

Finally, Amendment No. 108 corrects a mistaken reference in Clause 20(4) to Clause 18(5). It should refer to Clause 18(6). It provides also, as I indicated earlier, that the order referred to in the new subsection inserted by Amendment No. 105 is, like an order under Clause 18(6), to be subject to the negative resolution procedure. I hope that with that short explanation, I have set any

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doubts which might still be lingering happily to bed, a good deal earlier than we shall all be going there, but there we are.

Lord Meston: Before the Minister sits down, will he indicate, in answer to the concern which has been raised by the Bar Council among others, that there will be wide consultation on the draft rules and that there will be a proper opportunity for the professional bodies to comment on draft rules?

Lord Williams of Mostyn: Of course, and I am happy to give that assurance. We take the stance that the more informed consultation there can be, particularly on intricate, technical matters, the better the final form is likely to be. I am happy to give that assurance to the noble Lord, Lord Meston.

Lord Henley: I thank the noble Lord for that explanation of his amendments and as to why he believes the negative rather than the affirmative resolution procedure is more appropriate. I note, as the noble Lord made clear, that that is the normal procedure for various other rules of court which must come before the House.

I have considerable sympathy for the noble Lord because I spent a number of years arguing on many occasions that the negative procedure was more appropriate. I can remember a number of noble Lords who have continually pressed for the affirmative resolution procedure when the negative procedure was appropriate.

At this stage, I should prefer to look again extremely carefully at what the noble Lord said and reserve the right to return to this matter either later in Committee, in that we shall not reach the government amendments until some time next week, or on Report. However, at this stage I shall withdraw my amendment and I suspect that I shall find myself agreeing with the noble Lord that the negative procedure is adequate on this occasion. However, I believe that it is right to at least reserve my position to return the matter. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 14:

Page 2, line 21, at end insert--
("(4) Nothing in this Act affects the rule of law that if a provision of an earlier statute is inconsistent with that of a later statute the former is impliedly (if not expressly) abrogated.").

The noble and learned Lord said: This was a matter that was raised earlier by my noble and learned friend the Lord Chancellor and to which I replied. But it requires something more to be said. It relates to the doctrine to which I referred earlier that a later statute abrogates the earlier one with which it is inconsistent. That of course is entirely in accordance with the sovereignty of Parliament and nobody has ever argued otherwise.

In framing this Bill, the Government were faced with a jurisprudential difficulty; namely, how to reconcile the importation of a supervening code of human rights with

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the doctrine of parliamentary sovereignty. While I am on the subject of parliamentary sovereignty, perhaps I may say that it tends to be exaggerated because our Parliament is not really sovereign in a global sense since it is amenable on appeal to the decrees of the European Court of Human Rights and, indeed, the European Court.

One must not exaggerate parliamentary sovereignty when Parliament is so much under the thumb of the Executive. That is nothing new. It has been going on for more than a decade, but it is perhaps more marked now when we have a Government of a distinctly dictatorial temper and aspect.

However, the Government were faced with trying to reconcile the patriation of the convention with domestic parliamentary sovereignty. So far as future legislation is concerned, I think their ingenious scheme, even if somewhat circuitous and cumbrous, must be accepted. It relies on the court making a declaration of incompatibility, whereupon the machinery to galvanise Parliament into bringing our domestic law into line with the convention rights is set in motion. But that is entirely unnecessary so far as pre-existing legislation is concerned because parliamentary sovereignty is, as I have suggested, completely vindicated by the doctrine of implied abrogation of an earlier provision by a later one with which it is inconsistent.

Therefore it is quite absurd for the Government, wedded as they are to their own drafting, to insist that a quite unnecessarily cumbrous and circuitous process should be set in motion as regards preceding legislation when the existing doctrine of implied repeal is available. My noble and learned friend has now taken off his wig and therefore he can, if he wishes, scratch his right ear with his left hand. But that is not a sensible way to set about it, nor is the extremely burdensome, circuitous and drawn out process of reconciling parliamentary sovereignty with the convention rights so far as pre-existing legislation is concerned. That is quite unnecessary. The amendment states,

    "Nothing in this Act affects the rule of law that if a provision of an earlier statute is inconsistent with that of a later statute the former is impliedly (if not expressly) abrogated".

I ask my noble and learned friend to say whether that is not a correct statement of the existing law and why, if it is, it should not be applied to statutes that have been passed before the court finds that the convention rights override the earlier decision or the earlier decision is inconsistent with the convention rights which are made part of English law by this Bill. I beg to move.

7 p.m.

Lord Lester of Herne Hill: I respectfully agree with a great deal of what has been said by the noble and learned Lord, Lord Simon of Glaisdale. However, I part company from him when he suggests that the Bill is circuitous, complex and, as it were, contrary to principle. I think that the opposite is the case and I should like to try to explain why. I think that this is a satisfactory, if subtle, reconciliation of the principles of

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parliamentary sovereignty with the need for the judiciary to be able to provide effective domestic remedies.

The problem that the Committee is being asked to consider is what are the principles to be applied by our courts in interpreting legislation so as to be compatible, where possible, with the convention. The policy of the Bill is that where primary legislation cannot possibly be read in accordance with the convention, the courts must give deference to parliamentary sovereignty, grant a declaration of incompatibility and then leave it to government and Parliament to remove the mismatch and provide the remedy. That is similar to what is known as the New Zealand model based on the New Zealand Bill of Rights. However, the Government have, in my view wisely, omitted from this Bill what I believe is Section 13 of the New Zealand Bill of Rights which expressly ousted the doctrine of implied repeal to which the noble and learned Lord, Lord Simon of Glaisdale, has referred.

Every time the courts give a declaration of incompatibility there will in a sense have been a systemic failure because it will mean that the statute book does not properly give effect in the judges' opinion to our international treaty obligations, and there will then have to be inconvenient speedy legislation to put the matter right. The way in which the Bill therefore seeks to reduce that systemic failure to the minimum is by commanding the judges in Clause 3(1) to construe legislation so far as is possible to give effect to convention rights. It leaves entirely to the judges the task of developing the principles of interpretation to give effect to that command; namely, as far as possible to construe legislation compatible with the convention.

I am delighted that the noble and learned Lord, Lord Wilberforce, is in his place because at least 17 years ago he gave a decision of the Judicial Committee of the Privy Council in an appeal from Bermuda, The Minister of Home Affairs v. Fisher in 1980, in which he said that in order to give effect to the object and purpose of legislation to incorporate the European convention into the domestic law of Bermuda, one should give a generous interpretation to the rights and should avoid what has been called the austerity of tabulated legalism. He explained how the courts need to fashion their own principles of interpretation to accomplish that objective. That approach of the noble and learned Lord, Lord Wilberforce, was followed by Lord Diplock in another Privy Council case, entitled, I believe, Jobe v. The Attorney-General of the Gambia. I believe that our judges, in complying with Clause 3(1), will fashion, where possible, principles of interpretation to enable legislation to be read in accordance with the convention.

I find nothing in the Bill to prevent the courts, where appropriate, from using the doctrine of implied repeal to achieve that objective. There are difficulties about the doctrine of implied repeal--it is not wholly uncontroversial--but there is nothing that I can see in the Bill, as I say, to prevent that tool or instrument of interpretation from being used in appropriate cases for existing legislation. As regards future legislation, the Government--again, wisely, in my view--have taken another leaf from the New Zealand book and imposed an obligation on themselves, through Parliament, to

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inform Parliament whether they consider a future statutory provision to be incompatible with the convention. Again, that will enable our courts, in looking at future legislation, to give primacy to convention rights in the absence of a clear and unequivocal expression to the contrary, normally in a ministerial statement to both Chambers.

I regard the Bill as an ingenious and successful reconciliation of principles of parliamentary sovereignty and the need for effective domestic remedies. I feel a little like Sky Masterson in "Guys and Dolls", as a sinner who has converted, because in my first Private Member's Bill I sought to give the courts the power to strike down inconsistent legislation. I believe on reflection that, in the second Bill, after a good deal of arm twisting by some Members of this place rather more noble and learned than myself, I was persuaded that that was too strong, and that something along the lines of this Bill was more appropriate.

I now believe that the Bill produces a better solution than the aggressive strike-down power for which I originally contended, for all kinds of reasons with which I need not detain the Committee. For those reasons, I do not consider the amendment to be necessary and would rather leave it to the judges to fashion their own principles of interpretation in accordance with the command in Clause 3(1).

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