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Legislative and Regulatory Reform Bill

My Lords, my noble friend Lord Bassam outlined the workings of the Human Rights Act on Report, so I do not propose to reiterate that which noble Lords who have already spoken know as well as I do, if not better. I am replying now because I have been engaged in conversation with the noble Lord, Lord Goodhart, in light of my responsibilities for human rights. My noble friend was kind enough to let me deal with these amendments, in order, I hope, to reassure both noble Lords appropriately of the position. As I said, I am not going to repeat what has been indicated at previous stages, except to say that—as the noble Lord, Lord Goodhart, said—it is unlawful for a Minister of the Crown to make secondary legislation that is incompatible with the convention rights. As he indicated, his Amendment No. 3 would put a requirement into the Bill that orders made under it would have to be accompanied by a statement of compatibility with the convention rights. My noble friend Lord Bassam explained on Report that the Section 19 statement, which we already have, is in a sense a genuine alternative in respect of primary legislation, as Parliament can choose to legislate incompatibility. That alternative does not exist with secondary legislation, which it is simply unlawful for Ministers to make incompatible. As the noble Lord said, the Government as a matter of convention accompany some secondary legislation with a statement confirming compatibility with the convention rights—specifically, where secondary legislation amends primary legislation, or where it is subject to affirmative or super-affirmative procedures. My honourable friend Jim Murphy gave an undertaking in Committee in another place that the Government would accompany all orders under this Bill with a statement confirming their compatibility, of the precise kind envisaged by the noble Lord, Lord Goodhart. I can confirm that undertaking today; it will be followed through. However, as the noble Lord knows, I have no desire to put that into the Bill—not just because it confirms what we have already said would be the case about the compatibility of orders, but because I am worried about there appearing to be a genuine alternative in consequence. In other words, by putting this into the Bill we might suggest that there is an alternative where the order could be incompatible, just as with primary legislation. While I am sympathetic to the noble Lord’s wishes, I hope that he will understand that the commitment we have given should not lead—accidentally or otherwise—to a place where we might suggest something other than that which is already the case. I hope that he will accept the double reassurance, from my honourable friend in another place and me, that it will be the case. No doubt, he will hold us to account on that basis. I am sympathetic to what lies behind Amendment No. 4, as the noble Lord would expect. However, I hope that he will feel eventually that it is unnecessary and could cause some difficulty and confusion, as his opening remarks indicated. Let us again be clear: a Minister could not seek to make an order that amended primary legislation in a manner incompatible with the convention rights—nor would such an order pass parliamentary scrutiny. Not only would that be unlawful under Section 6 of the Human Rights Act, as I have explained, but it would probably not meet the preconditions set out in Clause 3 of this Bill—which, from the human rights perspective, I have studied and discussed with my officials to ensure that we are absolutely clear on the meaning. Notably, within Clause 3(2)(e), there is the precondition that requires the Minister to be satisfied, before he can make the order, that provision in it will not prevent an individual, "““from continuing to exercise any right or freedom””," that he, "““might reasonably expect to continue to exercise””." Noble Lords will, I am sure, also look at Clause 3(2)(d), which says that, "““the provision does not remove … necessary protection””," and subsection (2)(f), which says that, "““the provision is not of constitutional significance””." We therefore believe that the preconditions set up around this Bill, which noble Lords have debated at length, are the key to why we do not wish to accept this amendment, despite our great sympathy with what is behind it. We believe that in putting forward any proposal the Minister would have to be mindful of those preconditions in the Bill. That would have an impact. The effect of the amendment on legal certainty, as the noble Lord indicated, could present problems. As he would expect, although there is a position under what I have said on preconditions where an order being dealt with would be ultra vires—and able to be challenged in the courts—I am not minded to add any other ““uncertainty”” within this legislation. The difficulty is that we would then create different kinds of primary legislation—that already within an Act of Parliament and that inserted through the order. I had to ask myself whether I was comfortable that the way in which we set up the Bill and the way in which we would be looking at secondary legislation meant that we had dealt with the underlying concern within the amendment. I believe that that is the case. The courts can strike down under ultra vires and, if legislation went through, it would amend primary legislation and would be dealt with in the way that primary legislation is dealt with. I am not minded to set up a different category of legislation. Therefore, with the combination of the preconditions and what I have already said about the convention and the Human Rights Act, I hope that the noble Lord will feel that we have addressed his underlying concerns. I hope he will accept that I do not wish to create forms of uncertainty in determining legislation that I think are unnecessary in these circumstances, and that he will feel able to withdraw the amendment.