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8.30 p.m.

Lord Goodhart: My Lords, I have been asked by the noble Baroness, Lady Amos, whose name stands first in the list of those tabling Amendments Nos. 50 and 55, but who is unable to be here tonight, to speak to those amendments on her behalf.

On the issues raised by the amendments, the parties seem to have been moving, to some extent, towards a consensus, but unfortunately they have not quite reached it. We who have tabled the amendments, welcome the amendments to be moved by the Minister. We also have a good deal of sympathy with the amendments tabled by the noble Lord, Lord Henley.

Two principles are involved. One is that there should be an opportunity to scrutinise a draft remedial order before it takes effect; the second is that there should be power to revise or amend a draft order in the light of defects shown up by that scrutiny.

I shall look first at the question of scrutiny. It will of course be for the Government to decide whether to invoke, in any particular instance, the fast-track procedure. If they do so, the purpose of the scrutiny will not be to review that decision, and decide whether or not it was correct, but to look at the draft of the proposed order to see whether it is an appropriate and effective way of correcting the incompatibility which has been discovered by the court, and to ensure that the order does nothing more than correct that incompatibility.

Wide public consultation will not be needed. What will be needed is expert scrutiny by a body familiar with parliamentary draftsmanship. That body should be a human rights committee, either of each of the two Houses or a joint committee of both. I recognise that it is of course for Parliament to decide whether to set up such a committee, and not for legislation. Our amendments are intended to emphasise the importance of ensuring that there is scrutiny by an appropriate committee, without being prescriptive as to the nature of that committee. So far as Amendments Nos. 52 and 53 seek to achieve the same purpose, we of course agree with them.

The Government's White Paper on the Bill made it clear that they would welcome the creation of a parliamentary human rights committee or committees. I assume that that remains their view. I should welcome confirmation of that and also that the Government see scrutiny of draft remedial orders as one of the functions of a parliamentary human rights committee.

I turn now to the question of amendment. It is surely pointless to have scrutiny if the result of the scrutiny cannot be taken into account in deciding the final form of the order. It is not generally open to either House to amend the text of a draft Order in Council. The amendment moved by the noble Lord, Lord Henley, is an ingenious solution to that problem, though in our view it involves some element of overkill and may lead to unnecessary delay, because it will require, before the order can come

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into effect, two successive 40-day periods--one involving the looking at what may be called a pre-draft and then the actual draft.

I hope that the fast-track procedure will be rarely needed, and that when it is needed it will often be easy to see what amendment is needed to ensure the compatibility of the existing legislation. For that purpose, an 80-day stand delay will not be needed. But it may not always be as simple as that. It is important that the Government should have power to amend an Order in Council by means short of the withdrawal of the existing order and the laying of a new order.

In Committee, the noble and learned Lord the Lord Chancellor took the view that Clause 12 was adequate as it stood. He also at that stage took the view that a 60-day period of consideration was unnecessary. On the latter point, the Government's view has now changed. Amendment No. 58 will extend the period for consideration to 60 days. Presumably the point of the Government's amendments, extending the period of consideration to 60 days, is to enable more detailed consideration of the draft Order in Council to take place. But what is the point of having a period for scrutiny and consultation if the draft has already been laid before the House in a form which can be amended only by withdrawal and relaying?

The consultation process may well make it clear that the order is capable of improvement. I would ask the noble and learned Lord the Lord Chancellor to reconsider whether it would be possible to introduce a procedure to enable that order to be revised after it has been laid before the House in draft.

Baroness Williams of Crosby: My Lords, this is an important group of amendments. One of the reasons why the noble Baroness, Lady Amos, and I moved the original Amendments Nos. 50 and 55 was to give a substantial parliamentary element to the consideration of remedial orders. I greatly welcome the new amendment tabled by the Minister. I have just one reservation. It is the one made by my noble friend Lord Goodhart; that is, it makes no reference to the scrutiny by Parliament as distinct from consideration by the Executive.

I recognise that the Minster has gone some way towards meeting the point raised in Committee by extending the period of consideration to 60 days, but I should be most grateful if he, or his noble and learned friend the Lord Chancellor, would say a little more. I recognise the difficulties because the noble and learned Lord the Lord Chancellor has said more than once that this must be a matter for Parliament; but if it is a matter for Parliament it is one where the Government's assurances and statements will be taken into account. Perhaps a little more could be said about how the Government consider the possible responsibilities and developments of the committee were it to be set up.

The Lord Chancellor: My Lords, I certainly agree with the noble Baroness that this is an important group of amendments. In Committee your Lordships discussed in some detail the procedure for making a Clause 12 remedial order. There was undoubtedly feeling that the procedure should be amended to make it easier for

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Parliament to exercise its scrutinising role. Amendments were tabled on that occasion to lengthen the period for consideration of remedial orders to provide for the scrutiny by a parliamentary committee and to enable them to be amended by Parliament. Similar amendments have been tabled for Report. They are before your Lordships again. In Committee, we undertook to reflect on the concerns that had been expressed. As your Lordships will see, we have responded and we have concluded that some changes to the procedure should be made, although we have not adopted all the suggestions made in Committee. Nonetheless, we hope that the government amendments will give a measure of satisfaction.

The first change we propose relates to the period for consideration of draft remedial orders. Under Clause 12(1)(a), no remedial order may be made unless a draft has been approved by Parliament. No period of time is prescribed for this procedure, so it would be possible for a draft to be approved, and an order made, very soon after the draft was laid before Parliament. The effect of government Amendments Nos. 51, 57 and 58 is to provide a minimum period of 60 days' consideration before a draft of the order may be approved by Parliament. The noble Baroness, Lady Williams of Crosby, was good enough to call attention to that. This is designed to allow interested parties an adequate period of time in which to comment upon a draft remedial order. It responds to amendments tabled in Committee by the noble Lord, Lord Meston, and to one aspect of the amendments tabled by the Opposition.

I ought to point out that the government amendments depart from those tabled in Committee in not providing a 60-day period for the consideration of urgent remedial orders made under clause 12(1)(b). In these cases the order will expire after 40 days unless approved by Parliament. These orders are to be made without prior parliamentary approval, and we do not want to extend the time in which they may have effect without such approval. A 60-day period for consideration of these orders would simply delay the point at which Parliament could, if it chose, express its disapproval of the order.

The other change that we propose is in the government Amendment No. 56. It would require a remedial order, or draft, to be accompanied by an explanatory statement. This would contain particulars of the court case in which the declaration of incompatibility had been made, and would seek to explain what the incompatibility was. It is designed, therefore, to facilitate the consideration of remedial orders by Parliament.

We think this would be helpful because we still believe, as we said in Committee, that it would not be appropriate to create a statutory, and I emphasise statutory, requirement for the scrutiny of remedial orders by a parliamentary committee, as the amendments in the name of the noble Baroness and others would do. We assume that this will be the parliamentary committee on human rights, and we have said before, and I say again, that we would welcome the establishment of such a committee, but it is a matter for Parliament. We do not want to anticipate what the functions of that Committee might be. As we said in Committee, it is not normal practice for provisions of this kind to be set out in statute, and I have to say that I do not think there is a case for departing from

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the normal practice on this occasion. But I made perfectly plain what the position of the Government is in relation to the establishment of a parliamentary committee on human rights. Nor do we think it necessary to provide for the amendment of remedial orders once made or laid in draft, as proposed in the Opposition amendments. Statutory instruments cannot be amended. An instrument has to be revoked, remade or another amending instrument made, and remedial orders are no different. The advantage of the draft affirmative resolution procedure in Clause 12 is that Parliament can decline to approve so the order cannot be made and a further order would then have to be prepared to meet Parliament's concerns; otherwise the incompatibility desired to be removed would simply continue. The explanatory document that we propose will make it possible for Parliament to have an informed debate about the incompatibility which has been exactly identified by a court and what the Government's proposals are for removing it.

In proposing these changes I can say that I am conscious of looking ahead to the possible establishment of a parliamentary committee on human rights. Such a committee, I can readily say, would be able to look afresh at the issue of procedure in the light of the experience gained in operating these provisions. If it recommended that a closer Parliamentary scrutiny of remedial orders was needed, I am sure that the Government would be very much influenced by that. But for the present, although we cannot accept the Opposition amendments or those in the name of the noble Baroness, and others, I hope the House will accept, particularly in the light of the explanations that I have given, that we do offer the government amendments for approval by your Lordships' House in a spirit of conciliation and as improvements which go some considerable way towards meeting the concerns expressed in committee. I beg to move.

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