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Legislative and Regulatory Reform Bill

moved Amendment No. 111A: After Clause 21, insert the following new clause- ““APPLICATION OF HUMAN RIGHTS ACT 1998 Orders made under this Part shall be treated for the purposes of the Human Rights Act 1998 (c. 42) as subordinate legislation and not as primary legislation (whether or not they amend primary legislation).”” The noble Lord said: The purposes of this amendment are related to those in Amendment No. 85, which I moved earlier. It is a technical but important amendment, recommended by the Joint Committee on Human Rights in its 17th and 21st reports of the current Session. Under Section 21(1) of the Human Rights Act, an order which amends primary legislation is itself treated as primary legislation and cannot be quashed on the grounds of incompatibility with convention rights. It is certainly my understanding that that is the correct interpretation. The Government appeared earlier to take a different view and suggested that such an order could be quashed on the grounds of incompatibility, but I do not think that that is correct. I believe that the effect of Section 21(1) of the Human Rights Act is that an order which is introduced under this Bill cannot be quashed on the grounds of incompatibility; it can only be declared incompatible. Confusingly, it appears that an order made under this legislation can be quashed on other grounds. For example, it is ultra vires on grounds other than incompatibility, such as failure to comply with a statutory procedure or to meet the conditions set out in Clause 4. It seems plainly inappropriate that such a distinction should be drawn. It would be an abuse of the order procedure under the Bill deliberately to make a provision which was incompatible with the Human Rights Act. Such provision would be in breach of what is plainly one of the core statutes of our constitution. If incompatible legislation is to be passed, which Parliament has the power to do under the Human Rights Act, then it should be part of primary legislation only after it has had full consideration in both Houses of Parliament. I beg to move.