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Legislative and Regulatory Reform Bill

moved Amendment No. 3: Page 8, line 6, at end insert ““, and ( ) a statement that in his view the provisions of the order are compatible with the Convention rights (as defined in the Human Rights Act 1998 (c. 42))”” The noble Lord said: My Lords, Amendments Nos. 3 and 4 have been grouped. They both deal with the inter-relationship between this Bill and the Human Rights Act. Amendment No. 3 requires any draft order laid under the Bill to be accompanied by a statement of compliance with the convention rights under the Human Rights Act. That is not in the same form as Section 19 of the Human Rights Act, because that permits a Minister introducing primary legislation to make instead of a statement of compliance a statement that the Government wish to proceed with the Bill even though it is not compliant. In fact, that power has, I understand, only been used on one occasion, when the Government took the view that an amendment inserted into a Bill in your Lordships’ House was not compliant. The Government decided that the appropriate course was to send the Bill back to the House of Commons with a statement of non-compliance, in the expectation that the non-compliant amendment would be removed, as it was. That cannot be done with secondary legislation such as an order under this Bill; in other words, as the Minister pointed out on Report, it would be unlawful for a Minister to lay before the House a draft order that was not compatible. It has become standard practice for draft statutory instruments that require the affirmative resolution procedure to be accompanied by a statement of compatibility when they are laid. That requirement results from a direction given some years ago by the late Lord Williams of Mostyn—possibly in response to an issue that I raised with him. Since the Bill gives a wide general power to legislate by statutory instrument, it is desirable that the practice should be put on the face of the Bill. Amendment No. 3, as it stands, would extend that principle to orders made under the negative resolution procedure, in addition to those under the affirmative and super-affirmative procedures. That is reasonable, due to the special nature of the Bill and, anyway, very few orders are likely to use the negative resolution procedure. I accept that the statement that I propose will simply reflect the law, but I believe that it will nevertheless be useful, because it will concentrate the minds of those drafting the order to check for compatibility. It should not be assumed that a reminder is unnecessary. Amendment No. 4 provides that orders made under the Bill will be treated as secondary legislation, although they amend primary legislation. That is a departure from the rule in Section 21 of the Human Rights Act which states that where primary legislation is amended by secondary legislation under what is widely known as a Henry VIII clause, the amendment is treated as being primary legislation. I can see the point of that, as it is inconvenient, when challenged on human rights grounds, to have to check primary legislation to see whether it has been altered by an order made under a Henry VIII clause. But there are also problems with the other way. Orders made under the Bill are secondary legislation; therefore, an amendment to primary legislation made by an order under the Bill can be quashed on judicial review if the court is, for example, satisfied that one of the conditions in Clause 3 has not been met or that the procedure for consultation or otherwise, as laid down by the Bill, has not been properly followed. In any event, we would be left with a potential degree of uncertainty as to whether the court could quash the order, thereby removing it from the Bill. We may still have to find out whether the statute was or was not amended by the order. It would be illogical also to have two different consequences of the unlawfulness of the order, depending whether the unlawfulness was based on its incompatibility with the Human Rights Act or on some other defect in the making of the order. It would be more consistent and simpler to state that if the order is unlawful, whether for incompatibility or other reasons, it should be quashed and the amendment to primary legislation made by the order should disappear at that point and not wait to be removed by new primary legislation or by the special, relatively fast-track procedure under Section 10 of and Schedule 2 to the Human Rights Act 1998. I beg to move.