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Baroness Williams of Crosby moved Amendment No. 84:

Page 7, line 7, after ("been") insert ("scrutinised and reported upon by the appropriate committee of each House of Parliament, and").

The noble Baroness said: I owe the Committee an apology because it might have been better if my two amendments had been grouped together with the earlier set of amendments since they are to some extent dealing with the same problem. Therefore, I shall be brief in my remarks.

I invite the noble and learned Lord the Lord Chancellor to think adventurously and radically about this part of the Bill. At an earlier stage in our deliberations, and also at Second Reading, the noble and learned Lord said that one of the intentions of the Government was to encourage--because they do not have the right to order that it should occur--the creation of a joint committee on human rights in the two Houses of Parliament. To many noble Lords that seemed an attractive idea.

I do not always sympathise with the noble Lord, Lord Henley, but I do so on this point. He has suggested the possibility of an amendment, which is not possible in the present affirmative order structure in any way. Might it be possible for the noble and learned Lord, when he comes to look at this clause again before we return at Report stage, to consider whether such a joint committee, as he has previously discussed, is an appropriate body for scrutinising these orders? I fully appreciate that many of them will be technical, but many of them will not arouse significant issues for amendment. If there were to be a joint committee on human rights which dealt with other and much larger issues, it would not be unreasonable for it to have this responsibility as well.

I draw the noble and learned Lord's attention to the way in which the European Communities Select Committee operates. It mainly deals with large scale issues of inquiries and reports, but it also looks at directives and regulations at every one of its meetings. I am very honoured to be a member of that Select Committee. Therefore one would have a form of scrutiny which can then be reported to the House and also to another place, in the case of its committee, if there is any real problem about an order.

I also very strongly recommend to him the thought that perhaps involving Parliament more in issues of human rights, giving it clear responsibilities, is not only a way of ensuring that human rights are more generally understood in the country, but also of recognising that Parliament itself could usefully discharge many functions that it is not currently asked to do. There is a great deal of talent and ability in both Houses of Parliament which remain to be tapped in the interest of trying to ensure that human rights are properly upheld.

The final and last point I make is that the significance of my amendments--here I make a different point to that made by the noble Lord, Lord Henley--is essentially that they would require a report to be made or for the committee to clearly indicate that it does not intend to make a report. The point of that arises from a deep cynicism on the part of somebody who has also

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been a member of governments. Alongside public expenditure, the hardest concession to get from governments is time. It is very dangerous for scrutiny to be absorbed by the pressures of time in the legislative timetable. The purpose of my amendments in effect is to give power to the committee to ensure that it be heard if it chooses to be heard. I beg to move.

Lord Henley: The noble Baroness, Lady Williams, was kind enough to offer me some sympathy so on this occasion may I reciprocate and say that I have a considerable degree of sympathy for this approach, which is not so very different from mine. It is allowing for a slightly greater degree of scrutiny and possibly allowing the committee to suggest adjustments to the particular order. It is a slightly new procedure that the noble Baroness is recommending. But bearing in mind the remarks made earlier by my noble kinsman Lord Russell about importing a new concept into our legal system, occasionally requiring a new approach, similarly this is an idea where a new approach might be appropriate.

If the noble Baroness would like to consider between now and Report stage alternatives to her method or mine that we might jointly pursue at that stage, I shall be more than happy to join her in that. As Members of the Government so often say, I can say that my door will be open throughout that time to approaches from the noble Baroness.

Lord Meston: I should also have arranged for Amendment No. 90 to be grouped with these amendments or the earlier ones. With all the opening of doors and pondering going on, it is probably going to be unnecessary for me to say much about Amendment No. 90 other than to invite the Government to look at it in the same light as they were looking at the previous amendments. It seeks to extend the time for parliamentary scrutiny of remedial orders and to extend to Parliament the power to disapprove such orders when they take effect in cases of emergency.

The fast track procedure will be desirable when speedy action is necessary to redress some individual or minority grievance of a serious nature, although in some cases the existing prerogative powers at the disposal of the Home Secretary may be sufficient.

It is important to emphasise that the fast track procedure should be regarded very much as an exception to the normal process by which rectification of United Kingdom law for compliance with the convention is made. They should not become simply a more administratively convenient and less time-consuming way of changing the law on human rights. The single stage of parliamentary approval is substantially less extensive than the various stages and length of time devoted to normal government Bills and otherwise. Therefore, it is particularly important that parliamentary scrutiny procedures are effective.

The amendment does not include any requirement for particular lines of consultation prior to such orders being made before Parliament or for any particular form of explanatory memorandum to accompany draft orders

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when they are laid. I support my noble friend Lady Williams in suggesting that an important corollary is that we have an assurance that there will be some form of parliamentary committee on human rights with terms of reference to include the scrutiny of remedial orders as well as future draft legislation generally, for compliance with the convention.

Earl Russell: I wish to add one point in support of each of these amendments. In Amendment No. 84 there is reference to "the appropriate committee". That might be taken to refer not only to a human rights committee, which I hope that Parliament will create in its own time, but also to the Joint Committee on Statutory Instruments and the Delegated Powers Scrutiny Committee.

The noble and learned Lord may say that this is unnecessary, but I can recall regulations being put before this House when the Joint Committee on Statutory Instruments had not yet considered them. The person on the receiving end happened to be the noble Countess, Lady Mar. I should like to congratulate her most warmly on her success in obtaining the Peer of the Year award, which is much deserved.

Members of the Committee: Hear, hear!

Earl Russell: Being a shrewd parliamentarian, the noble Countess threatened to divide the House against the Motion that the House be resumed, a condition precedent for considering the order at all. Having put the fear of God into the Government Benches, she then relented and decided that she had made her point. So I believe that this amendment is necessary.

On Amendment No. 90, I should like to touch on the point about 60 days. I take the noble and learned Lord's point that one may occasionally want to go faster, but there is a problem here. I take it that it is wide of the Long Title to table any amendment to the Statutory Instruments Act 1946. However, there is a trouble in that Act. The "praying days"--the 40 days that we normally have--include judicial sitting days when this House in its political capacity is not sitting. During September there are quite a number of judicial sitting days when this House in its political capacity is not sitting, so on those occasions the "40 days" may present us with a difficulty. Perhaps that point should be borne in mind.

7.30 p.m.

The Lord Chancellor: I desire the Committee to appreciate that we shall ponder ideas to determine whether we think that they are good. The whole scheme of incorporation of the convention into domestic law shows a great respect for parliamentary sovereignty. Other models would have shown less respect. That is why we rejected them. The principle now--that remedial orders must be made by Parliament, not by the courts--is accepted as part of our deliberations in this Committee. The question therefore becomes how to ensure that there is adequate parliamentary scrutiny while recognising that the sooner that (consistent with parliamentary scrutiny) denials of human rights are remedied, the better. Our purpose therefore is to find the

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best balance. That is why I was good enough to say that I saw the force of the arguments made by the noble Lord, Lord Henley, on Amendment No. 83 and the other amendments grouped with it. We want to get the balance right and to ensure a proper role for Parliament. However, I want to express quite frankly why I have my doubts about the amendments.

First, I should like to correct the noble Lord, Lord Meston, a little. What I said very clearly before was that the Government favour a committee or committees. I did not say that there will be a committee. That is a matter for Parliament. I have a hesitation about an amendment which puts on the statute book the need for scrutiny and report by an appropriate committee of each House of Parliament in advance of knowing whether we shall have such a committee because that is dependent upon Parliament. I also have a concern that the very concept (even on the footing that we do have a committee) while good in terms of parliamentary scrutiny may be bad if it turned out to be an engine for delay in remedying human rights problems. One must balance all those points.

The Government obviously expect that Parliament would wish to give full scrutiny to any remedial orders, but the amendments would provide a committee or committees, which ex hypothesi do not yet exist, with an undefined period in which to carry out scrutiny and report. That means that there would be an undefined period of delay. Also, it is not normal practice for provisions of this kind to be set out in statute, and I am not convinced that it is appropriate for the Bill to set out what the functions of any parliamentary committee should be in this regard. I should have thought--I am open to counter suggestion--that if Parliament agrees to establish a parliamentary committee on human rights, which the Government hope that Parliament will do, its functions and powers could best be considered at that time.

I return to a point that I made earlier in the context of the previous grouping of amendments in the name of the noble Lord, Lord Henley. The noble Lord was inviting us to admit the possibility that a remedial order might either be wrong or be not as right as Parliament might be capable of making it, and therefore to be hospitable to the possibility of amendment. I should like to renew what I said previously, but in this context. It is important to remember that any declaration of incompatibility will be based on a fully reasoned judgment of a higher court. In practice, the point will be crystal clear. The remedial order will be intended to achieve no more and no less than is necessary to improve the incompatibility. Therefore, I seriously question--I invite those who have proposed the amendment also to question--whether there is much point in an undefined period for scrutiny, and therefore delay in removing an incompatibility which is causing a continuing denial of human rights. That is as frank an expression of my doubts as I can muster at this hour of

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the evening. We shall certainly ponder on the point, but in return I ask those who have posed the amendment also to ponder.

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