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Lord Falconer of Thoroton moved Amendment No. 140B:

Page 55, line 29, at end insert ("or an obligation under subsection (1E).").

On Question, amendment agreed to.

Clause 107 [Human rights]:

Lord Falconer of Thoroton moved Amendment No. 140C:

Page 55, line 36, leave out from ("tribunal") to end of line 39 and insert (", or
(b) to rely on any of the Convention rights in any such proceedings,
in respect of an act unless he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.").

The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to the other amendments in this group standing in the name of my noble friend Lord Williams of Mostyn; namely, Amendments Nos. 140C, 140D, 230A, 231B and 234A.

The House agreed to government amendments in Committee that were intended to bring the provisions of this Bill into line with those of the Human Rights Bill. On further reflection, we think it is necessary to return with further government amendments to Clause 107 and other clauses, although they do not alter the substance or effect of those provisions.

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These amendments are necessary because it is probable that the Human Rights Act will not be brought fully into force by the time that the assembly is established and assumes its functions in the early summer of 1999. The Government have decided that the assembly should be bound to observe the convention rights from the outset, and the amendments before your Lordships today are intended to ensure that Clause 107 can operate effectively in the period before the Human Rights Act is brought into force.

Amendment No. 140C amends subsection (2) of Clause 107 so that a person could not bring proceedings about an act of the assembly relying on subsection (1) unless he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. The amendment removes the reference to the equivalent provision in the Human Rights Act, so the effect of the subsection is unchanged.

Amendment No. 140D alters subsection (4) of Clause 107, by replacing the reference to damages which could not be awarded "by virtue of that Act" with a form of words that has precisely the same effect. However, the new form of words copes with the position where the Human Rights Act is an Act but has not been brought into force.

Amendment No. 140D also inserts definitions of "the Convention rights" and "the Convention" in a new subsection (5). The changes to Clauses 155 and 156 are consequential on that.

Finally, Amendment No. 230A inserts a specific transitional provision into Clause 153, so that Clause 107 can operate successfully in advance of the Human Rights Act coming fully into force. I beg to move.

6.45 p.m.

Lord Mackay of Drumadoon: My Lords, from these Benches I indicate a welcome for, and acceptance of, the amendments. They seek to address a concern that I raised some months ago when the Human Rights Bill was debated in this House. I am sure that the noble and learned Lord the Solicitor-General will forgive me if I say that the experience of the Government in having to introduce amendments at Committee stage and then amend them on Report, illustrates the value of a revising Chamber. As the noble Baroness, Lady Ramsay of Cartvale--whom I am happy to see in her place--will appreciate, that is a live issue in debating the Scotland Bill.

Lord Lester of Herne Hill: My Lords, I recognise that the amendment is necessary in order to bring this Bill into line with the Human Rights Bill. As the noble and learned Lord the Minister knows, I disagree profoundly with the "victim" test in the Human Rights Bill. It is an alien import from a completely different purpose under the convention and is used in a way that is against principle and will damage the effectiveness of the Human Rights Act when it comes into force. This provision is consequential on decisions taken in relation to that Bill. I should not like the absence of any voice on my part to be taken as an assent to the principle. However, I agree with the amendment as a consequential amendment.

On Question, amendment agreed to.

9 Jul 1998 : Column 1415

Lord Falconer of Thoroton moved Amendment No. 140D:

Page 56, line 5, leave out from ("award") to end of line 6 and insert ("in respect of an act any damages which it could not award on finding the act unlawful under that subsection.
(5) In this Act "the Convention rights" has the same meaning as in the Human Rights Act 1998 and in subsection (2) "the Convention" has the same meaning as in that Act.").

On Question, amendment agreed to.

Clause 108 [International obligations]:

Lord Falconer of Thoroton moved Amendment No. 140E:

Page 56, line 7, leave out ("the Secretary of State") and insert ("a Minister of the Crown").

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 141:

Page 56, line 8, at end insert ("treaty").

The noble and learned Lord said: My Lords, in moving this amendment, with the leave of the House I shall speak also to Amendments Nos. 142 to 148. This group of amendments was drafted and tabled before I had the opportunity of seeing the government amendments, beginning with Amendment No. 140A and running through to Amendment No. 148B, which form part of two fairly large groupings dealing with this clause. Therefore, I readily accept at the outset that the drafting of my amendments may not be entirely easy to reconcile with the drafting of the various government amendments, to which no objection is offered.

Nevertheless, I shall press on with my amendments in a probing frame of mind and seek to explore with the Government why it is that the Secretary of State is being given, in regard to the Welsh assembly, the right to intervene as set out in subsections (2) and (3) of the clause in relation to what are defined as "international obligations".

My amendments have two purposes. The first is to seek to define "international obligations" and "international legal obligations" constituted by a treaty, convention or other agreement, seeking to refine the term "international obligations"--or "international obligation", as it will become after the Government's amendments are agreed to--in order to make it clear that what we are talking about is not a general understanding that may be entered into between the United Kingdom Government, on the one hand, and another nation state, on the other, but international legal obligations which are binding on the United Kingdom under international law.

The second purpose of the amendments is to make it clear that, if the Secretary of State is of the view that what the Welsh assembly has done, or refuses to do, is incompatible with such international obligations, he has the option of going to the court for a declarator or declaration to that effect, or, alternatively, taking action by order, which is the purpose of my Amendment No. 144. To some extent this matter is already dealt with in subsection (3) of Clause 108, but the provision in Amendment No. 144 is in broader terms and the power is not limited to revoking subordinate legislation.

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A similar clause in the Scotland Bill has been described as being of the nature of a colonial governor's power Bill, entitling the Secretary of State to march in and order the Scottish parliament about. I do not believe that such an approach would be desirable if one was trying to encourage a devolved body, whether it be the Welsh assembly or the Scottish parliament, to be seen to be as independent as is possible within the devolved framework in which it will act.

I fully accept that the Secretary of State may require to have residual powers. Indeed, in the Scotland Bill it is intended that the power should not only extend to international obligations but also where there is concern about the interests of defence or national security. I should be interested to hear from the Minister whether it is proposed to bring forward similar amendments to this Bill.

I believe that the Secretary of State should either go to the court for an order on the legal issues that arise, or, if he is satisfied that he is right in law, should exercise the power which I seek to give him by Amendment No. 144. I beg to move.

Lord Falconer of Thoroton: My Lords, my comments here relate to Amendments Nos. 141 to 148, which the noble and learned Lord, Lord Mackay of Drumadoon, has proposed to Clause 108 of the Bill. I believe it would be helpful to your Lordships' consideration of these issues if I first provided the House with an explanation of the Government's thinking with regard to the need for the clause.

The provisions of Clause 108, as currently drafted, ensure that Ministers will have the power to prevent the assembly from taking action which is incompatible with the international obligations of the United Kingdom. No such intervention will apply in respect of Community law and convention rights as the Bill, in Clauses 106 and 107, places an explicit requirement on the assembly to observe such obligations. This is possible because these obligations form, or soon will form, part of legislation made by the Westminster Parliament for the United Kingdom and will thus become part of the domestic law of this country. However, as far as Clause 108 is concerned, it is not the case that all international obligations of the United Kingdom have been incorporated into domestic legislation. Thus the reserve power in Clause 108 is a deliberate one to allow Ministers to intervene if the assembly is considering an incompatible action or has already taken it.

Furthermore, not all international obligations are in the form of treaty. Some--for example, the Rio Declaration on the Environment and Development--take the form of conventions, protocols or heads of agreement. As a consequence, Amendments Nos. 141 and 146, which seek to insert the word "treaty", may have the effect of leaving the United Kingdom Government without the power to deliver certain obligations to which they are committed, to the extent that they are ones which fall within the competence of the assembly.

Amendments Nos. 142 and 143 would remove Ministers' power to direct that an action may or may not be taken, and instead allow the Secretary of State to

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apply to an appropriate court for a declaration that an action is incompatible with international obligations or that action is required by the assembly to give effect to an international obligation. In addition, and consequential upon the earlier amendments, Amendment No. 142 goes on to allow the Secretary of State to make rules to define the applicable court.

Amendments Nos. 141, 142, 143 and 146 would introduce a serious weakening of Ministers' powers to take action. The Government firmly believe, for the purposes of Clause 108, that action by order would be the more effective mechanism for safeguarding the United Kingdom's international obligations. The order-making power would, of course, be subject to parliamentary procedures and scrutiny, which would not be the case if the courts were given a role in these matters.

Amendment No. 145 is consequential to others in this grouping, but by itself the amendment would oblige the Secretary of State to consult with the assembly only when he was prepared to exercise his order-making power under Clause 108 for action to be taken to remedy assembly subordinate legislation, or that which could be revoked by the assembly, which is incompatible with an international obligation.

It appears odd that those on the Front Bench opposite wish to strike out only part of the consultation provision set out in Clause 108(6). In any case, if the assembly's actions, or proposed actions, were seen to be in breach of an international obligation and the Secretary of State was minded to take appropriate action, this is already covered, as subsections (1) and (2) of Clause 108 give the Secretary of State the power to direct the assembly that action should or should not be taken. The amendment is therefore unnecessary.

Amendments Nos. 147 and 148 attempt to provide a definition of the international obligations for the purposes of Clause 108. As I have indicated, international obligations can take many forms and it would be counter-productive to attempt to define them in the way proposed by these amendments.

I hope that, in view of the explanations I have given, the noble and learned Lord will be minded to withdraw his amendment.

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