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Lord Thomas of Gresford: Perhaps I may seek to justify my attitude in support of the fast-track procedure. I have some experience of the Hong Kong Bill of Rights, which was introduced by the previous
administration through the Hong Kong administration in the late 1980s. Under that Bill it was possible for the judges to strike down incompatible legislation altogether. That, of course, was in a society where democracy was very much in its infancy and where there were not the same safeguards of elected representatives such as we have in this country. It had the overwhelming advantage of giving an immediate remedy to the person who was the subject of the particular piece of legislation which was incompatible with the Bill of Rights.For example, I recall that immediately the judges struck down as incompatible certain presumptions which had been inserted into the drugs ordinance, which bore down harshly on individuals who were charged with offences under that legislation. Similarly, the judges took the opportunity to strike down the equivalent of what we knew in this country as the "sus" laws, where a person was arrested in the street merely because a police officer suspected that he might be about to commit a crime. That was an immediate solution and advantage to the person who was affected by that legislation. The judge could deal with it then and there.
What is proposed in the current Bill, as we discussed earlier this afternoon, is that the victim should have no such immediate remedy. Amendments were moved to that effect a moment ago but they were withdrawn. The Government have indicated that they do not believe in incorporating in this Bill a remedy for the victim who raised the issue and obtained the declaration of incompatibility. However, it means that there are other people who may be affected by that legislation, which is incompatible. It can cover a wide area. It is not just the criminal law; it may involve the tax laws, with people incurring liabilities to pay large sums of money. It may cover all sorts of areas of the law which very much affect the individual. Therefore, an immediate remedy for other potential victims of incompatible legislation is required.
In his usual excellent way, the noble Lord, Lord Campbell of Alloway, has raised a very important issue. But the introduction of primary legislation to amend incompatible legislation involves delay in getting it into the programme. The fast-track procedure means that potential victims can be given an immediate remedy. It is for that reason that I justify the fast-track procedure, as my noble friend Lord Goodhart said, as an in-between stage, between the judges having the power to strike down legislation immediately and the delay involved in introducing fresh primary legislation. We have here a compromise which is well thought out and which deserves our support.
5.15 p.m.
The Lord Bishop of Exeter: I do not wish to take a position in relation to the amendment of the noble Lord, Lord Campbell of Alloway. I hope that the Committee will be patient while I repeat a question that I put in relation to Amendment No. 40 on Monday. It is simply to ask for an assurance that the Government recognise, as regards the proposed workings of the Bill, that it is a
unique position concerning the making of laws for the established Church, namely, that all the work and its stages is done in the General Synod. It is then presented to Parliament to be scrutinised by the eccessiastical committee. It is not debated on the Floor of House unless Members desire that. That is an almost unique way of making law for a particular part of the country's constitution. I know that attention will be given by the General Synod to the progress of this Bill, which it became aware of only earlier this week, as far as it affects the established Church. It would be helpful if the Government could give recognition to the procedure which is part of our constitution.
Earl Russell: Perhaps I may very briefly respond to the noble Baroness, Lady Carnegy of Lour. She reproached these Benches for not letting people know what is going on. But the noble Baroness was talking as though the Bill were introducing new legal obligations. These matters have been our legal obligation for 46 years. Should there be a declaration of incompatibility, it would put me, in my parliamentary capacity, in much the same position as I would be in in my personal capacity were a judge to discover that, for some technical reason, my marriage had been invalid. I would of course go straight off and do it again! I would not feel the need to tell everybody what was going on because I would assume that they knew already.
The Lord Chancellor: It is entirely right, as the noble Lord, Lord Henley, and others have said, that the noble Lord, Lord Campbell of Alloway, should bring this important point for discussion before the Committee. However, the noble Lord, Lord Goodhart, is right, I suggest, when he says that in substance this is a direct frontal attack on the fast-track procedure. I recall that the noble Lord, Lord Campbell of Alloway, said during a Committee stage last week that he was concerned with the end rather than the means. I am sure that the noble Lord himself would be the first to acknowledge what his end is as regards Clause 10. He has already signalled that he intends to oppose it, and this amendment, if it were carried, would achieve the same end but by different means. In that sense I believe that the noble Lord would be constrained to agree with me if I were to describe it as an intended wrecking amendment.
I am grateful to the noble Lord, Lord Goodhart, and other Members of the Committee on his Benches for saying that they strongly support the principle of the fast-track procedure. I welcome that. I fully appreciate that there will be amendments which they will be supporting, aimed, as they will argue, at strengthening or improving the fast-track procedure.
I am conscious that the noble Earl, Lord Russell, is traditionally hostile to Henry VIII clauses. His hostility is well known and, perhaps I may add, "without peer". It is for that reason that I particularly welcome his support. I remind the Committee that before any remedial order is brought before your Lordships for your consideration, it will have been preceded by a reasoned judgment of a higher court--perhaps the very highest court--which will have made the declaration of
incompatibility. The legislation in question will have been scrupulously analysed, the point identified and the need for the declaration made as clear as the higher court can make it. Therefore, in a sense this is first-class briefing material so that your Lordships may focus your attention on the need for the order. That is an important reason for regarding this use of the Henry VIII clause as a legislative development which is sensible and designed to serve, not hinder, parliamentary sovereignty.I now speak having been chairman of the Queen's Speech and Future Legislation Committee for the past seven months. I am acutely conscious of the pressures on the legislative programme. This is a very extended legislative programme and the next legislative programme will be similarly very extended. There will be competitive bids. Priorities will have to be determined by the committee that I chair. I am afraid that when I hear it said that it is easy to get something into the legislative programme if the will is there, I feel that that does not respond to the realities of a legislative programme which is inevitably under pressure.
Baroness Carnegy of Lour: I hope that the noble and learned Lord will forgive me for intervening. I do so with the utmost respect because he knows that I am an amateur on such matters. However, is he absolutely sure that he is not putting the interests of Parliament and the business managers in front of the need of the people of this country to understand the changes that are to be made in the law? I entirely understand the noble and learned Lord's point--I can imagine the pressures--but surely we should be vigilant about this. Is the noble and learned Lord quite convinced that that is the case?
The Lord Chancellor: I am absolutely convinced that this House will be well informed of the need for change by the fact of the judgment of the higher courts which will set out the need for change. I venture to suggest that the purpose of a remedial order is to give Parliament the earliest possible opportunity in a considered way to remedy an incompatibility between a statute passed by Parliament (in all probability, inadvertently) and the European Convention on Human Rights, to which the United Kingdom is a party. Far from trenching on parliamentary sovereignty, I think that that gives Parliament the earliest legislative opportunity to remedy in a focused way an incompatibility which was probably the product of parliamentary inadvertence, not intention.
I turn to the amendment proposed by the noble Lord, Lord Campbell of Alloway. Amendment No. 67B would remove all but subsection (1) of Clause 10. It would therefore destroy the mechanism of remedial order which we have put in place. Paragraph (a) of the proposed amendment provides that if there is incompatible primary legislation, an amendment Bill may be introduced to remove the incompatibility. That seems to have no point at all because the Government could introduce a new Bill irrespective of any powers in this Human Rights Bill.
Paragraph (b) provides that in the case of incompatible subordinate legislation, a draft order to amend that legislation may be made subject to the
affirmative resolution procedure. As the paragraph provides no specific powers to amend primary legislation, which would need to be amended in order to remove the incompatibility of inevitably incompatible subordinate legislation (because it is consequential upon an incompatible provision of the parent legislation), it too serves little purpose. Its only effect would be to supersede other provisions in parent statutes which may allow for a procedure less onerous than the draft affirmative resolution procedure. So, we cannot accept the amendment because, in substance, it wrecks.Perhaps I may advise the right reverend Prelate that, of course, we recognise the unique position of the established Church and if any question ever arose-- I venture to suggest that it is highly unlikely--of making remedial orders touching upon ecclesiastical legislation, I regard it as inconceivable that government would do that without first elaborately consulting the Church. I would have thought that the better course would be for the Church itself to do that which I am sure that it would want to do if any of its legislation had been held incompatible with the European Convention on Human Rights--that is, for the Church to amend its measures itself, subject to parliamentary approval. I can assure the right reverend Prelate that we would always be solicitous of the interests of the Church.
The noble Lord, Lord Campbell of Alloway, suggested that in our previous discussions in Committee right reverend Prelates had expressed concern about the fast-track procedure. I am not aware that they have done so. Their concern was with the definition of "public authority" in Clause 6. The right reverend Prelates had expressed an interest in that because of the interests of the Church, but not in the fast-track procedure. Legislation will be subject to the fast-track procedure, not institutions. Of course, institutions will be affected by the legislation once altered by remedial order, but where it affects their interests, they will have had the fullest notice because of the preceding argument in the courts. I am sure that that will be drawn fully to the attention of any public bodies that are likely to be affected, culminating in what I think will be a rare happening, the making of a declaration of incompatibility by a higher court. For all those reasons, I invite the noble Lord to consider withdrawing his amendment.
5.30 p.m.
Lord Campbell of Alloway: I thank all noble Lords who have spoken in this debate, including the noble and learned Lord the Lord Chancellor. I shall be brief and I hope that I shall not be thought discourteous if I do not refer by name to every noble Lord who has spoken. At least it comes as no surprise that noble Lords on the Liberal Benches took what they called "an in-between position".
Perhaps I may assure the Committee that this is not a wrecking amendment, as was said by the noble and learned Lord the Lord Chancellor. That term is loosely used on all sides of the House at times, but this amendment simply is not a wrecking amendment. It accepts the principle of the Bill, so, technically, it cannot be a wrecking amendment. It opposes the proposed
means--the fast track procedure--and in that sense it is a wrecking amendment, but in parliamentary terms it is not.The noble and learned Lord raised some technical objections. So be it. This is DIY drafting. I had no assistance and inevitably the wording is defective. However, that is not the point. This is Committee stage and I am arguing for a principle. The question is whether the substance of what I seek attracts your Lordships. I am not worried about technical deficiencies--I could not put them right anyway; I should have had to get a parliamentary draftsman to do it. The noble and learned Lord knows that perfectly well. He is no more a draftsman than I am.
I asked whether there would be any justification for introducing this entirely novel system of law making. I asked myself whether it would be claimed that there was a need for haste. If so, what is the hurry? Would the Government say that it was a matter of administrative convenience? If so, I would have wanted the order of that convenience. However, the noble and learned Lord came out with it with total honesty, as he always does. He said that the reason was the pressure of legislative programmes on the committees that he had to chair. I say to the noble and learned Lord in all amity that that is no justification at all for altering the whole system of changing the law. I agree that it may suit the Government but it is no justification. I have heard no justification advanced for the adoption of this new process for amending legislation. I remind the Committee that on the say-so of a Minister of the Crown by Order in Council primary legislation is amended. There is no due or proper consideration by Parliament. Your Lordships will be aware that an Order in Council cannot be amended.
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