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Legislative and Regulatory Reform Bill

I thank the noble Lords, Lord Norton of Louth and Lord Goodhart, for their amendments and for raising this topic—and the noble Lord, Lord Henley, for his contribution—although I would hope that noble Lords will be convinced that these amendments are unnecessary. As Ministers of the Crown are public authorities for the purposes of the Human Rights Act, and Section 6 of the Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with the convention rights, all orders made under this Bill must be compatible with the convention rights. There is simply no alternative. Noble Lords have referred to and are familiar with the Section 19 statement that appears on the front of every government Bill presented to your Lordships’ House. In nearly every case, including this Bill, that is a statement of compatibility under Section 19(1)(a) of the Human Rights Act. It certifies that, in the opinion of the Minister in charge of the Bill, the provisions of the Bill are compatible with the convention rights. But there is a real and practical purpose to having such a statement, for it is possible to make an alternative statement under Section 19(1)(b) of the Human Rights Act. A statement under that section would be a statement that, although the Minister cannot make a statement of compatibility, the Government nevertheless wish the House to proceed with the Bill. Section 19(1)(b) statements are rare. In fact, only once have the Government had to give such a statement on first introduction of a government Bill into Parliament. But the point of the statements under Section 19 is that it remains possible for Parliament, if it so chooses, to pass primary legislation that is incompatible with the convention rights. It is, however, proper that if the Government are going to ask Parliament to legislate incompatibly, we should be absolutely clear when they are doing so. In this way, the Section 19 statement serves as a starting point for the scrutiny of the Bill by Parliament. I know that, as a matter of procedure, the Government make statements of compatibility for secondary legislation that is subject to the affirmative resolution or super-affirmative procedures, or which amends primary legislation. As your Lordships may recall, the undertaking that the Government would do so was made to your Lordships’ House by the late Lord Williams of Mostyn. Similarly, in another place, my honourable friend Jim Murphy undertook that the Government would, again as a matter of practice, give statements of compatibility for orders made under this Bill. I do not seek to go back on those undertakings. It is important to realise, however, that such statements of compatibility only confirm that which already must be the case—that in the Minister’s view the order is compatible with the convention rights. Whereas Parliament has the power to make incompatible primary legislation if it wishes, a Minister is not permitted to make secondary legislation that he does not believe to be compatible.