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Lord Williams of Mostyn: I entirely understand the concern which lies behind the amendment, which was amply described by the noble and learned Lord; namely, what if the relevant Minister seeks to initiate the fast-track procedure in response to a declarator or declaration of incompatibility, only to find that the declaring court is overturned or varied on appeal? We believe that such a situation would be most unlikely to arise in practice because it is a discretion that the Minister has to introduce the fast-track procedure. I would find it hard to envisage circumstances in which the Government would want to exercise the power conferred by Clause 10 before the appeal process had been concluded.
Nevertheless, I recognise the concern behind the amendment. Perhaps I ought to take the matter away, consider whether a limitation of the kind suggested should be made on the face of the Bill--but I am bound to say that, as at present advised, it may not be--and also consider whether the present drafting might need a little attention.
Lord Mackay of Drumadoon: I am grateful to the Minister for that response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
Lord Coleraine moved Amendment No. 66A:
The noble Lord said: I move the amendment partly as a probing device. During the debates that I have listened to in our Committee proceedings, I have been struck by how many speakers have claimed to be the first lay
To date, the only reply to that point has been that it is up to lawyers to get themselves up to date and understand the workings of the convention very thoroughly. I should point out that that is not much help to a body which unwittingly finds, before it has had a chance to take legal advice, that it is being challenged by public interest groups on the grounds that it is a public authority.
I find myself at the foot of a very steep learning curve, and about my amendment I would say that it addresses, first, whether Clause 10(1)(b) should apply retrospectively to allow an administration to find grounds for invoking the fast-track procedures in order to comply with the findings of the Court of Human Rights which were made before this clause will come into effect. I do not know when the clause is expected to come into effect, and perhaps the Minister will be able to tell us. However, if paragraph (a) cannot operate retrospectively, then paragraph (b) should not. But that is not my main point.
The wording of the subsection is such that a United Kingdom administration could invoke the clause in respect of any finding of the Court against the United Kingdom, however long ago made. In addition--and it will not have escaped notice that my amendment thrusts in two directions--findings against other member states of the Council of Europe, whenever made, whether before or after the coming into force of this clause, may tempt an administration to take the short-cut, fast-track way through Parliament by saying that the finding of the Court against another country, perhaps made some years ago, shows that a provision of our legislation is incompatible with our obligations under the convention.
The Notes on Clauses tell us that paragraph (b) applies to adverse decisions in United Kingdom cases. When the Minister replies, it is possible that he will tell us that this is clearly provided for in the Bill and that there is no question of any other interpretation applying. I gain the impression that that is indeed what he is going to tell the Committee.
Under the clause, the Minister does not have to show that he is legislating to fill the gap in our human rights legislation pointed to directly by the finding of the Court, which the United Kingdom is bound by treaty to fill. He merely has, having regard to any finding of the Court, to decide that a provision of our legislation is incompatible with one or more of our obligations arising from the convention. I suspect that a Minister, if allowed to do so, could made such a decision perfectly
In the case of legislation intended to make our laws comply with a specific finding of the Court against us, there is nothing in the Bill to prevent the administration carrying out an audit and carrying other statutory amendments on the back of the fast-track procedure beyond those required by the finding of the Court of Human Rights. That possibility is illustrated by the Chahal case and the recent passage through this Chamber of the Special Immigrations Appeals Commission Bill. I need not go into the details, but my noble friends Lady Blatch and Lady Anelay of St. Johns referred to the fact that the Bill went further than was required in order to respond to the Chahal case.
Yesterday in another place that Bill received its Third Reading and, because of amendments made in that place, it still has to return to this Chamber for further consideration. My honourable friend Mr. Clappison, looking ahead to the arrival of the Human Rights Bill in another place, pointed out that this was one more reason why it was most important that the Houses of Parliament should be able to give the fullest possible attention to amendments to human rights legislation, which should be subject to full parliamentary scrutiny and debate and, indeed, be susceptible to amendment.
I see no reason to question the good sense of legislating outside and beyond the strict requirements of a finding of the Court against us, wherever appropriate. I also realise that the Government, were they to have introduced the legislation necessitated by the Chahal case after the coming into force of this Bill, might not have used the fast-track procedures. I say that they "might not", but I do wonder. The temptations facing an administration, when it is a question of by-passing or marginalising Parliament, are hard to resist.
It seems to me that Clause 11 of the Bill gives wide powers to an administration to legislate beyond what is required by a specific finding of the Court of Human Rights, and that paragraph (b) of Clause 10(1) of the Bill needs further scrutiny. I beg to move.
Lord Goodhart: In my party we see some force in that part of the amendment moved by the noble Lord, Lord Coleraine, which restricts the operation of the fast-track procedure to decisions made after the coming into force of the clause. What we take issue with is that part of the amendment which restricts the fast-track procedure to decisions made against the United Kingdom. It is clear from the existing provisions of Clause 10 that if,
the fast track procedure under Clause 10 applies. It would certainly appear that that would apply to a decision not only given against the United Kingdom but against another country too. Indeed it is perfectly appropriate and reasonable that it should.
What is the position if the judgment given against some other country shows that some provision of United Kingdom legislation is clearly incompatible with the European convention? The position then is that the Minister will have two options. He can either proceed in the ordinary way by primary legislation, which will require finding a place in the queue--and that may well be difficult--or he has to wait until someone in this country sees fit to litigate, or seeks to litigate, exactly the same point in the European Court. At the end of that proceeding he will then, but only then, be able to make use of the fast-track procedure.
Indeed it is quite possible that the petition of an applicant in that position to the European Court might be held to be inadmissible because the law had already been clearly established by the previous decision against a different country. It certainly seems to us that where a decision against another country makes it clear that some provision of United Kingdom legislation is incompatible with the convention, the Minister in those circumstances should be entitled to consider whether to make use of the fast-track procedure, and do so if he thinks fit.
Lord Mackay of Drumadoon: As I had understood the provisions of Clause 10(1)(b) with the benefit of the Notes on Clauses, the policy of the Government is that the finding referred to is a finding against the United Kingdom. If that be the case, I suggest to the Minister who is to reply to this amendment that the speeches we have just listened to from the noble Lords, Lord Coleraine and Lord Goodhart, make it clear that another construction of the clause is possible. I readily accept that. There clearly is some doubt about this. This may be another clause which merits some further consideration.
Page 6, line 13, after ("Rights") insert ("made against the United Kingdom after the coming into force of this section").
"it appears to a Minister of the Crown ... that, having regard to a finding of the European Court of Human Rights, a provision of legislation is incompatible with one or more of the obligations of the United Kingdom arising from the Convention",
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