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Lord Henley: I intervene briefly to say that like my noble friend I expect we shall have much more to say about his Amendment No. 73 and our Amendment No. 85 when we reach them at some later occasion, at, I hope, a better time of night than is the case at the moment. My noble friend makes a good point. These are important issues and they are issues that have been referred to by the Delegated Powers Scrutiny Committee. All I require from the Government when they respond is an assurance from them that, when they look at the recommendations of the Delegated Powers Scrutiny Committee, they will abide by the recommendations that the Delegated Powers Scrutiny Committee has made, just as we always abided by them when we were in government, as we were always recommended to do by noble Lords opposite when they were in opposition.

Lord Lester of Herne Hill: The Committee of course is not dealing in these amendments with the remedial powers of Parliament and the recommendations of the Delegated Powers Scrutiny Committee, with which I, respectfully, do not wholly agree. However, that is for another occasion. With these amendments the Committee is concerned solely with what the judicial branch of government has to do in relation to declarations of incompatibility, not what Parliament has to do, and how it is to do it.

I do not understand what the fuss is about. Clause 4, as it stands, empowers the courts to grant declarations of incompatibility in relation to primary legislation, which the amendment would seek to turn into any legislation, not just primary legislation. It then provides, in relation to subordinate legislation, that if the parent statute cannot be construed compatibly with the convention rights, the courts may so declare. What then happens as a consequence comes later in the Bill when Parliament seeks to put right the mismatch.

I wholly fail to understand what is wrong in the eyes of the noble Lord, Lord Campbell of Alloway, with the power of the courts to grant declarations of incompatibility where the parent statute requires subordinate legislation, and cannot be read any other way, and would breach the convention. It therefore

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seems to me that this is--if I may be forgiven the phrase--truly an emasculating amendment which would destroy one of the main purposes of the Bill. I am therefore strongly opposed to it.

9.30 p.m.

Lord Campbell of Alloway: Let us suppose that the noble Lord is right. With respect to him, I think that he has failed to understand--perhaps it is a bit late--what I was saying. Perhaps the late hour made it difficult for me to explain it. He has misconceived and totally misconstrued what I said. Let us assume that he is right. Either Clause 4 as it stands does not preclude the type of amendment and discussion to which I have referred, or it does. If it does not preclude such a discussion-- I am satisfied that subsections (3) and (4) do--so be it. But at least I wish it to be understood that if, as my noble friend Lord Henley said a moment ago, we can reach a suitable accommodation at this hour in the form of an assurance, I do not have to waste the Committee's time in seeking to convince the noble Lord, Lord Lester of Herne Hill.

The Lord Chancellor: The noble Lord, Lord Campbell of Alloway, said that the position in principle of his party might not be relevant to our discussions this evening. I am, in principle, minded to agree with that, as with many other discussions in which we might engage this evening or any other evening. At one point he appeared to be protesting at the simple English of the provisions. That appears to me to be their principal virtue. I was pleased to hear of the respect in which he holds the Labour Party manifesto. I am delighted to hear that it is his vade mecum. It is, after all, an exemplar of how to win elections, and on our compliance with it we shall be judged, and are happy to be judged, at the next general election.

The position simply is that at present subordinate legislation may be struck down by the courts on the same grounds as in the case of other forms of administrative action. That is most commonly on vires grounds, but also on procedural grounds where a mandatory provision for making the subordinate legislation has not been complied with or, less commonly, on the ground that a discretion has been exercised unreasonably or irrationally.

Clause 6(1) of the Bill, by making it unlawful for a public authority to act in a manner inconsistent with the convention rights, will make it unlawful for a Minister to exercise a power to make subordinate legislation so as to make provision which is incompatible with the convention. However, subordinate legislation which is incompatible with the convention rights will thus become susceptible to challenge on vires grounds in the ordinary way. These provisions deal essentially with a situation where subordinate legislation is incompatible with the convention because that incompatibility has been dictated by the terms of parent legislation which is in itself incompatible.

The problem with Amendments Nos. 19 and 21 tabled by the noble Lord is that they would apply subsections (1) and (2) to both primary and subordinate legislation and would delete subsections (3) and (4). The effect of

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the amendments might well therefore be to allow the courts to make declarations of incompatibility in relation to subordinate legislation which is not inevitably incompatible. That power, however, is simply not required in these cases because the courts have available to them their ordinary powers to quash or set aside subordinate legislation. The power to make a declaration of incompatibility should be, and is, reserved for those cases where it is needed because the courts have no power to do anything else. The subordinate legislation is necessarily incompatible because the parent legislation causes it to be so. The rational outcome, therefore, is that both the parent and the subordinate legislation are subject to a declaration of incompatibility.

My noble friend Lord Campbell of Alloway is concerned about the fate of his Amendment No. 73. We shall have our debate on that amendment on another day. The noble Lord, Lord Henley, invites me to say that I agree here and now to abide by the recommendations of the Delegated Powers and Deregulation Committee. That is a matter that we shall address in its due time, which is not now. We are not now dealing with the remedial powers conferred upon Parliament where courts have made declarations of incompatibility. We shall have all these debates, but in their due time.

Lord Campbell of Alloway: I am grateful to the noble and learned Lord for the courteous way in which he dealt with this amendment, and for the great consideration given to it in the brief from which he was reading. He will forgive me if I could not quite take and understand everything that was said. However, I appreciate that it was prepared with great care and I am grateful for that consideration. I am also grateful to the noble and learned Lord for giving way to my noble friend Lady Carnegy so that she could make her point in the debate a moment ago.

Nobody, if they have any sense, ever thinks that they are right until they have heard all the arguments. I shall read seriously what has been said. However, I respectfully reserve the right to return to Amendment No. 73, which is near to my heart. I am worried about the fast-track procedure. I do not believe that it will work; I do not believe that it will make for good legislation; I do not believe it is the way to make legislation. I shall return to that matter at the next stage of the Bill. Meanwhile, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 20:

Page 2, line 39, leave out ("may") and insert ("shall").

The noble Lord said: Amendments Nos. 20 and 24 are simple little probing amendments. I should be grateful for a response from the Government to them. In Clause 4(2) we are told that:

    "If the court is satisfied that the provision is incompatible with one or more of the Convention rights, it may make a declaration of that incompatibility".

We suggest that the "may" should be "shall" and I have used the word "shall" instead of "may" to test the Government's intentions. I ask why the court is being

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given a discretion and what are the occasions on which the court would exercise that discretion? When would it not exercise the discretion? What remedies would be available if it did not exercise the discretion, if one or other party wished to contest it? I should be grateful to hear from the noble Lord, Lord Williams, or the noble and learned Lord the Lord Chancellor the answer to my queries. I beg to move.

The Lord Chancellor: Clause 4(2) and (4) give a court, if satisfied that a provision of primary or subordinate legislation is incompatible with the convention rights, a discretion to make a declaration of incompatibility. The noble Lord, Lord Henley, says that his amendments are probing, to remove the discretion and require the courts to make a declaration in those circumstances. Why that is a subject on which those who are opposed to the principle of the Bill desire to probe is not entirely plain to me, but none the less I shall endeavour to assist in their probing.

The reason Clause 4 only confers a discretion is in part that in our domestic law a declaration is generally a discretionary remedy. A Clause 4 declaration has no operative or coercive effect and in particular does not prevent either party relying on, or the courts enforcing, the law in question unless and until changed by Parliament.

The courts may, therefore, not wish to make a declaration of incompatibility in all cases. It is possible that the facts of particular cases may suggest that legislation as it is applied in that case is incompatible with the convention, but there may be reasons peculiar to the particular case why the legislation should not be declared incompatible on the occasion when the court would be free to do that.

To assist the noble Lord, whose interest in this Bill to which he is opposed in principle is so great, I suggest that I certainly would expect courts generally to make declarations of incompatibility when they find an Act to be incompatible with the convention. However, we do not wish to deny them a discretion not to do so because of the particular circumstances of any case.

If the noble Lord asks me for examples of that, I suggest that there might be an alternative statutory appeal route which the court might think it preferable to follow, or there might be any other procedure which the court in its discretion thought the applicant should exhaust before seeking a declaration which would then put Parliament under pressure to follow a remedial route.

I cannot envisage many more particular circumstances, but it appears to me to be sensible to leave the courts a discretion, while I well recognise that in the great majority of cases courts would want to make declarations of incompatibility, where that was appropriate.

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