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Legislative and Regulatory Reform Bill

Before I turn to the detail of Amendment No. 111A, I think it right to deal again with the issue of incompatibility with convention rights. It was first raised under Amendment No. 85 and dealt with by my noble friend Lord McKenzie of Luton. It may assist the Committee if I return to this point; it clearly vexes the noble Lord, Lord Goodhart. The noble Lord queried whether a Minister may ever make secondary legislation which is incompatible with convention rights. In this respect, it is important to draw a distinction between what is unlawful and the remedies for unlawfulness and incompatibility. Under Section 6 of the Human Rights Act: "““It is unlawful for a public authority to act in a way which is incompatible with a Convention right””." Under Section 6(3) of the Act, a Minister of the Crown is clearly a public authority. He must therefore exercise the function of making secondary legislation in a compatible manner, regardless of what the secondary legislation does. Therefore, all orders, including all those under this Bill, must be compatible with the convention rights. The distinction between primary and secondary legislation becomes important only in respect of the remedies available when a legislative provision is found to be incompatible with the convention rights. Under Amendment No. 111A, any amendment made by order to primary legislation would be treated as secondary legislation for the purposes of the Human Rights Act. Under the Act, secondary legislation may be struck down by a court if it is incompatible with the convention rights, as is understood. Primary legislation, including where it is amended by order, may not be struck down but instead may be the subject of a declaration of incompatibility. The noble Lord seeks to replicate a provision in the Civil Contingencies Act 2004. However, the considerable difference with orders under that Act is that they have only a short-term effect, usually a maximum of 30 days. Orders under this Bill would permanently amend the law. One of the reasons for the declaration of incompatibility procedure is to limit the impact of the Human Rights Act on legal certainty. People should be able to rely on primary legislation. If it were possible for Acts of Parliament to be struck down by the courts, leaving aside the issue of Parliament’s position, it would give rise to serious questions about the legality of actions taken in reliance on provisions that were later found to be unlawful. I should reiterate that it is already unlawful to make secondary legislation that is incompatible with convention rights. As I explained, this protection is contained in the Human Rights Act and needs no repetition. The Government could not make the order if they did not believe that it was compatible with convention rights. Where primary legislation, including that as amended by secondary legislation, has been declared incompatible by the courts, the Government have always responded positively by proposing appropriate remedial action to Parliament. I do not seek to disguise that this is a difficult choice to make between legal certainty on the one hand and enhanced remedies for incompatibility with the convention rights on the other, but as my right honourable friend the Chancellor for the Duchy of Lancaster indicated in her letter to the Joint Committee on Human Rights, the Government are not persuaded at this stage that a provision such as Amendment No. 118 is appropriate. I have listened with great interest to the points raised by the noble Lord. I should like to consider them further before we return to this part of the Bill on Report, but I make that observation without a commitment to embrace the noble Lord’s amendment or to move from the Government’s current position. I hope that, having heard that, the noble Lord will feel able and confident to withdraw his amendment.