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Lord Donaldson of Lymington: My Lords, why is it right to exclude the Human Rights Act but not the Habeas Corpus Act? I suppose that the courts might say that, after such a long time, they do not really derive their powers from the Habeas Corpus Act—it is inherent. But that is a different argument altogether. Certainly the argument put by the noble Lord, Lord Lester, does not run. Even if it is just to comfort me and one or two others, why can we not protect the Habeas Corpus Act?

Baroness Scotland of Asthal: My Lords, the noble and learned Lord knows that he can make no more powerful argument than to ask me to comfort him, because I would go a long way to try to comfort him. But, even for him, we feel that the Human Rights Act is enough.

16 Nov 2004 : Column 1352

There have been strong arguments that, because of the way in which we interpret the law—as the noble and learned Lord will know well—technically, the Human Rights Act does violence to the principle that anything that is not expressly excluded is deemed to be implied. There was therefore a big argument about whether we should include the Human Rights Act. Although we regard those Acts as of equal importance, it was eventually agreed that, because of the special nature of the Human Rights Act—as the noble and learned Lord will know, many of the provisions in the Habeas Corpus Act are included in the Human Rights Act—this was an appropriate step.

I have said from this Dispatch Box on a number of occasions that the rights embedded in the legislation referred to are not changed and that anyone reading the Hansard report of our debate will know that, when passing this legislation, the Government of the day were absolutely clear that the constitutional and other Acts to which we have referred were not adversely affected by the passing of the Bill. Nothing in the drafting could possibly or properly be construed to do that.

I hope that that will be of comfort to the noble and learned Lord. I hope that he will agree that we have some of the best constitutional judges and lawyers in the world. I am confident that the combination of the Bill and the statements made in this House will not be misconstrued by the judiciary, unless the quality of that judiciary were to be materially changed. Thus far, this country has been blessed with exemplary care from the judicial officers who have discharged their duty with integrity.

Baroness Buscombe: My Lords, I wish that I could be as trusting as the Minister in believing that, once an emergency is over, any Acts that have been disapplied will automatically be enacted and respected in any event. Sadly, I do not find myself to be so trusting, and clearly nor did the Joint Committee which scrutinised the draft Bill. That committee recommended that 21 Acts should appear on the face of the Bill as not being liable to modification or disapplication under Clause 22(3)(j).

In comparison, my list of Acts is modest. Indeed, noble Lords have suggested that it is a symbolic list and, in a sense, it is. As the noble Lord, Lord Monson, said, in a sense it provides a belt and braces that we consider to be crucially important not only for all the reasons that we have expressed throughout the passage of the Bill in your Lordships' House but also because of all those beyond the House, as referred to by the noble Lord, Lord Stoddart. We want to respect their concerns and give them some reassurance with regard to a Bill that gives those in power such extraordinary powers. The Minister said that no legislation should be protected from amendment by the ordinary legislative process. But I suggest—in fact, I firmly believe—that this Bill is an extraordinary process.

There is a further point. First, we decided to remove Magna Carta 1297 from the list because, as the Minister said, we accepted that the Magna Carta has

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been largely repealed. But that does not mean that it is therefore otiose to list the Acts that we believe represent the core enactments to enshrine, protect and safeguard our Parliament and our access to justice. We believe, for example, that there is a strong case for protecting the Habeas Corpus Acts.

The point about derogation, to which I referred on Report with regard to the Human Rights Act, is important. The Government can, and do, derogate from certain provisions of the convention and can do so by certification by a Minister. We do not believe that the Human Rights Act is necessarily as robust as the Minister thinks. Perhaps I may suggest that at some point the Minister reads a recent article by Keith Ewing in the latest issue of Public Law entitled "The Futility of the Human Rights Act 1998".

We believe that the Government, through their willingness to change their mind throughout the passage of the Bill in expressly protecting the Human Rights Act, have shown that we should be firm in our resolve to protect those core enactments, as I have attempted to do in this amendment. I am sorry that the Government have not listened to us in that respect. I appreciate that the Government listened to us on earlier amendments in relation to safeguarding, or further ensuring access to, judicial review, but we believe that we should take that one step further. The amendment is right and it is symbolic. No list will ever be perfect, but we believe that we should be strong. I therefore wish to test the opinion of the House.

6.23 p.m.

On Question, Whether the said amendment (No. 17) shall be agreed to?

Their Lordships divided: Contents, 146; Not-Contents, 169.

Division No. 2

CONTENTS

Alton of Liverpool, L.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Bell, L.
Blackwell, L.
Blatch, B.
Bowness, L.
Bridgeman, V.
Bridges, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chadlington, L.
Chester, Bp.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Condon, L.
Cope of Berkeley, L. [Teller]
Craig of Radley, L.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
Dahrendorf, L.
Dean of Harptree, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
D'Souza, B.
Dundee, E.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Feldman, L.
Ferrers, E.
Flather, B.
Fookes, B.
Fowler, L.
Freyberg, L.
Gardner of Parkes, B.
Geddes, L.
Gilmour of Craigmillar, L.
Glenarthur, L.
Glentoran, L.
Goschen, V.
Greenway, L.
Hanham, B.
Harris of Peckham, L.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Home, E.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Jenkin of Roding, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Lawson of Blaby, L.
Liverpool, E.
Lucas, L.
Lyell, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
MacLaurin of Knebworth, L.
Mancroft, L.
Mar, C.
Mayhew of Twysden, L.
Miller of Hendon, B.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Onslow, E.
Palmer, L.
Palumbo, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peel, E.
Perry of Southwark, B.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plumb, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Reay, L.
Rees, L.
Rees-Mogg, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Rotherwick, L.
Saatchi, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharples, B.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Southwell, Bp.
Stewartby, L.
Stoddart of Swindon, L.
Strange, B.
Sutherland of Houndwood, L.
Swinfen, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Swynnerton, L.
Trumpington, B.
Tugendhat, L.
Wakeham, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.

NOT-CONTENTS

Acton, L.
Addington, L.
Ahmed, L.
Alderdice, L.
Alli, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Bradshaw, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Burns, L.
Butler of Brockwell, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Drayson, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkland, V.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Garden, L.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greaves, L.
Greengross, B.
Grocott, L. [Teller]
Hamwee, B.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hayman, B.
Henig, B.
Hogg of Cumbernauld, L.
Hollick, L.
Hollis of Heigham, B.
Hooson, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Neuberger, B.
Northover, B.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Radice, L.
Randall of St. Budeaux, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Russell-Johnston, L.
Scotland of Asthal, B.
Sewel, L.
Sharman, L.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Leigh, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Tordoff, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Wallace of Saltaire, L.
Walmsley, B.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.

16 Nov 2004 : Column 1355

6.33 p.m.

Clause 34 [Commencement]:


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