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Legislative and Regulatory Reform Bill

My Lords, I always admire the telegraphic style of the noble Lord, Lord Kingsland. It is most helpful on this occasion. Before I turn to this specific amendment, it may assist the House if I first address some confusion about the interpretation of the Human Rights Act that arose in Committee. As your Lordships will be aware, the Human Rights Act gives effect in our law to rights drawn from the European Convention on Human Rights; those rights are known as the convention rights. Section 6(1) of the Act makes it unlawful for a public authority to act in a way which is incompatible with the convention rights. A Minister of the Crown is a public authority for those purposes and is therefore bound to act compatibly with the convention rights when discharging his or her duties. Parliament is, however, expressly excluded from being a public authority by virtue of Section 6(3). When a Minister seeks to make secondary legislation, whether under the Bill or otherwise, he is therefore legally required to do so compatibly with the convention rights because secondary legislation is made by Ministers and scrutinised by Parliament, rather than being made by Parliament itself. If secondary legislation is not compatible with the convention rights, the court may strike it down, as it would if the Minister had acted ultra vires in any other way in making it. Your Lordships will, of course, know that the Human Rights Act does not allow a court to strike down primary legislation; instead, a court may draw incompatible primary legislation to Parliament’s attention by means of a declaration of incompatibility. The noble Lord, Lord Goodhart, drew attention in Committee to a provision in Section 21 of the Human Rights Act under which secondary legislation that amends primary legislation is treated as primary legislation for the purposes of the Act. However, if one looks to see where the distinction between primary legislation and secondary legislation arises in the Act, one finds that it has a bearing only on the remedies available to the court should it find the secondary legislation incompatible. In particular, the distinction does not arise in Section 6 and therefore does not change the position that a Minister who makes incompatible secondary legislation is acting unlawfully. I know that we will come later to the noble Lord’s other amendment, which would make it possible for a court to strike down all secondary legislation made under this Bill, whether or not it amends primary legislation. However, even without that amendment, the position remains under the Human Rights Act that it is not unlawful for a Minister to make secondary legislation that is incompatible with the convention rights. This amendment would require that all secondary legislation made under this Bill would have to be accompanied by a statement of compatibility, similar to the Section 19 statement that appears on the front of every Government Bill presented to the House. In nearly every case—including this Bill—this 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, its provisions are compatible with the convention rights. It is possible for a Minister to make an alternative statement under Section 19(1)(b) of the Human Rights Act. Such a statement indicates that, although the Minister cannot make a statement of compatibility, the Government nevertheless wish the House to proceed with the Bill. The Section 19 statement reflects an important distinction under the Human Rights Act: that Parliament is still permitted to act incompatibly with the convention rights. Noble Lords will note that Parliament is expressly excluded from being a public authority in section 6(3) of the Human Rights Act. It is, however, proper that if the Government are going to ask Parliament to legislate incompatibly, we should be absolutely clear when doing so, which is the point of the Section 19 statement. The option to act incompatibly does not arise for secondary legislation, as I have explained. Therefore, the statement of compatibility with which the Government accompany certain secondary legislation as a matter of convention when it is being scrutinised by Parliament serves only to confirm that the Minister considers the instrument to be compatible. It would, therefore, already be unlawful for the Minister to make secondary legislation that is incompatible. If a Minister were to indicate that proposed secondary legislation is not compatible with the convention rights, he would effectively be admitting that he was intending to act unlawfully in making it. It is for that reason that I must oppose the noble Lord’s amendment. The Government would not, and could not, lawfully make orders under this Bill or any other Act that are incompatible. However, providing in statute for a statement similar to Section 19 could wrongly give the impression that the genuine alternative of acting incompatibly is open to the Minister. I hope that I have explained clearly why the Government cannot support the amendment. They will continue as a matter of convention to make such statements, but we would oppose any move to require this in statute for the reasons I have given. I hope that the noble Lord, having followed that, will withdraw his amendment.