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Lord Falconer of Thoroton: I have not seen the letter to which the noble Baroness referred. I shall repeat what I said earlier. We must recognise that some of the protection offered by the noble Baroness's amendment will be necessary only in exceptional cases where it is inappropriate to release those with medical or mental problems, at least in the short term. I was making it clear that it was only in the exceptional case that it would be inappropriate to release those with medical or mental problems; that is, it would be normal to release such people.

I have not fully taken on board what has been said. I shall speak to the officials, have a look at the letter and then write to the noble Baroness to clarify the position.

Baroness Williams of Crosby: I am grateful to the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 200 not moved.]

Clause 143 agreed to.

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Clause 144 [Detainee custody officers]:

[Amendment No. 201 not moved.]

Clause 144 agreed to.

Clause 145 agreed to.

Schedule 10 [Detainee Custody Officers]:

[Amendment No. 202 not moved.]

Schedule 10 agreed to.

Schedule 11 [Discipline etc at Detention Centres]:

[Amendment No. 203 not moved.]

Schedule 11 agreed to.

Clause 146 [Arrangements for the provision of escorts and custody]:

Lord Falconer of Thoroton moved Amendment No. 203A:

Page 97, line 1, leave out from ("the") to end of line 2 and insert ("Commission").

On Question, amendment agreed to.

Clause 146, as amended, agreed to.

Schedule 12 agreed to.

Clauses 147 to 153 agreed to.

Clause 154 [Regulations and orders]:

Lord Falconer of Thoroton moved Amendment No. 203B:

Page 102, line 18, at end insert--
("( ) But subsection (1) does not apply in relation to rules made under paragraph 1 of Schedule 5 or immigration rules.").

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 203C:

Page 102, line 19, leave out ("such statutory instrument") and insert ("statutory instrument made as a result of subsection (1)").

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 204:

Page 102, line 28, at end insert--
("( ) Part VI,
( ) paragraph 1 of Schedule 8,").

The noble Lord said: Amendments Nos. 204, 205, 206 and 208, tabled in my name, take up recommendations made by the Delegated Powers and Deregulation Committee. Amendments Nos. 204 and 205 would put in place the affirmative procedure for the whole of Part VI of the Bill. At present, only small areas of Part VI are covered. The committee recommended that the whole of Part VI should be included.

Amendment No. 206 also follows from the recommendations of that committee about Clause 95, which it suggested should be subject to affirmative procedure. Amendment No. 208 is a slightly different recommendation but nevertheless an interesting one. Amendment No. 209, tabled in the name of the noble Baroness, Lady Williams, and her colleagues, has exactly the same intention as Amendment No. 208, although a slightly different formulation has been chosen. I am not sure that there is any effective difference between them.

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We have on the face of the Bill, as with other Bills, a statement under the Human Rights Act in which the Minister confirms that in his view the provisions of the Bill are compatible with the convention rights. Nevertheless, throughout the Bill appear important matters which are to be the subject of secondary legislation. At present there is no way in which the Minister needs to say whether or not such orders and other secondary legislation are compatible with convention rights. The committee suggests, both in respect of this Bill where particularly important secondary legislation is provided for, but also no doubt more generally, that there should be statements similar to those that appear on Bills in respect of statutory instruments being tabled for consideration by your Lordships' House. That seems to be an important point of principle which goes wider than this Bill. Nevertheless, this Bill is a very good example of a Bill containing a large numbers of such powers. I hope that the principle that lies behind Amendments Nos. 208 and 209 is acceptable to Ministers.

As this is the last group of amendments in my name, perhaps I may take the opportunity to thank the noble and learned Lord, Lord Falconer of Thoroton, for his patience and courtesy, and ask him to thank the noble and learned Lord, Lord Williams of Mostyn, who has also been extremely patient and courteous throughout this Committee stage. As he has withdrawn from our proceedings, I must ask the noble and learned Lord, Lord Falconer, to pass on to him our congratulations on his appointment as Her Majesty's Attorney General, if the tape is to be believed. We hope that that will not prevent him taking part in our proceedings in future, maybe even on the later stages of the Bill, to which we shall have to return with regard to some of the points we have raised over the past few days. I beg to move.

Baroness Williams of Crosby: I rise to support this group of amendments, and in particular Amendments Nos. 208 and 209, but first I echo the words of the noble Lord, Lord Cope of Berkeley, with regard to the appointment of the noble and learned Lord, Lord Williams of Mostyn. I had been instructed that I was not to give vent to these congratulations. I apologise for doing so; I feel that I am covered by the noble Lord, Lord Cope of Berkeley, so nobody can complain that I let the cat out of the bag before anybody else.

Lord Cope of Berkeley: My information comes only from the tape. Whether it is correct or not, others will have to say.

Lord McIntosh of Haringey: It was on Sky News at 9 o'clock.

Baroness Williams of Crosby: In that case, we are relieved of any burden, and can give vent to our enthusiasm.

We can also say that in tabling Amendment No. 209 we are seeking to give the new noble and learned Lord, the Attorney General, great relief in his new operation, since clearly one of the things he will have to deal with will be any incompatibility between the Bill and the

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European Convention on Human Rights. So we seek only to make his life easier, and I shall address Amendment No. 209 with that in mind.

As the noble Lord, Lord Cope of Berkeley, said, there are some 60 provisions in the Bill under which secondary regulations can be made, some of them very deeply affecting civil liberties. It is also the case that many of them are issues that could, depending on how they were interpreted, fall foul of the European Convention on Human Rights. In the words of the compliance statement of Justice, a body which all of us in the Committee profoundly respect,

    "In some cases, this may mean that the provisions fall foul of the ECHR requirement that any interference with rights is clearly 'prescribed by law' ... the breadth of the delegated powers is such that significant breaches of human rights in the regulations or their implementation cannot be ruled out".

On that basis, it calls for secondary legislation with a human rights impact to be certified and to require the affirmative resolution of Parliament.

The noble Lord, Lord Cope of Berkeley, has already referred to the strongly stated view of the Select Committee on Delegated Powers and Deregulation to the effect that it believes, too, that there should be a requirement laid upon the Bill for the compatibility of secondary legislation to be stated clearly when any immigration and other rules subject to the affirmative procedure are laid before the House of Lords. Again, that suggests that we should take its recommendation extremely seriously.

I should like to make one final point. I was much engaged in the discussion on the incorporation into British law of the European Convention on Human Rights as I was one of the two spokesmen for my party on the matter in this House. The Committee will recall that there was a good deal of discussion at that time about whether there should be a human rights commission. The Government's view was that the time was not yet ripe for a commission on human rights, but they said on more than one occasion that they believed that there should be a parliamentary Select Committee. I understand that that committee has not yet been set up, and that therefore there is not at present a system for scrutinising secondary legislation in terms of its compatibility with the European convention. Many of us hope that a parliamentary committee, when established, will undertake that as one of its primary tasks. My understanding is that the Select Committee on delegated legislation so recommended to the Royal Commission on the Reform of the House of Lords, strongly suggesting that a Select Committee should be charged with responsibility for that compatibility with respect to secondary legislation. Given that that proposal was made so strongly by the committee; given also that we do not yet have a parliamentary Select Committee to undertake that task, it seems to us on these Benches all the more important that the Government concede on this amendment which, while the last amendment, is not one of the less important ones.

Finally, like the noble Lord, Lord Cope of Berkeley, since I do not propose to rise again for more than a moment, perhaps I may not only pay great tribute to the noble Lord, Lord Williams of Mostyn, and his noble and

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learned colleague, Lord Falconer, but also pay tribute to the Government Whip for his patience; and for the expressions on his face which sometimes tell us that we have simply gone on longer than he can bear, but somehow he manages to bear it. We appreciate his sheer endurance during the course of this Bill and we express our thanks to him as well as his ministerial colleagues and others who have taken part in these long debates.

11.15 p.m.

Earl Russell: Perhaps I may trespass upon the Committee also long enough to express my congratulations to the now noble and learned Lord, Lord Williams of Mostyn, on his promotion. He has been a most distinguished occupant of his former position. It has been a great pleasure to cross swords with him and an even greater pleasure to co-operate with him. There is no Minister with whom I have more enjoyed arguing since I have come to this Chamber. I shall miss him. But he will be a great ornament to the new office in which he is placed. It will be an honour to this House to have the Attorney-General in it.

The amendments in this group may serve to keep the Government out of trouble. As my recollection goes, the powers of the judges in relation to regulations incompatible with the convention are far more extensive than in relation to statutes incompatible with the convention. The judges are to presume that if the regulations are not compatible with the convention they are contrary to the intention of Parliament, which is assumed to have been to comply with the convention. So if the Government check out regulations early, they may keep themselves out of a good deal of trouble. They may like that.

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