Clause 7 - Procedure for orders under s. 6
Identity Cards Bill
4:45 pm
Mr Richard Allan (Shadow Spokesperson for the Cabinet Office, Cabinet Office; Sheffield, Hallam, Liberal Democrat)
I beg to move amendment No. 86, in clause 7, page 6, line 45, at end add—
'(7) Orders made under section 6 shall be considered to be primary legislation for the purposes of the Human Rights Act 1998.'.
In moving the amendment, I am relying on the fact that there is not too much joined-up government at present. That echoes a debate that took place in the context of the Civil Contingencies Bill, which was handled by the Cabinet Office. The Government sought to bring in some sweeping powers as secondary legislation and to treat them as primary legislation for the purpose of the Human Rights Act 1998. We spent a lot of time arguing fiercely against that, so, in tabling the amendment, I am not necessarily expecting the Minister to respond to it affirmatively or even in a super-affirmative fashion. I want only to tease out from him how the Human Rights Act and the provisions of the European convention on human rights will interact with any regulations made under clause 6.
It is important to test matters a little. We seem to have an innovation under clause 7 and I would be interested to hear from the Minister other examples of when a similar procedure has been used. The Government are saying that they do not wish to come back with primary legislation when they want to make matters compulsory. The playing field has moved. When we started discussing ID cards, it was suggested that we would have two pieces of primary legislation. One would bring in a voluntary scheme and we would have the assurance that, if the Government wished to return with a compulsory scheme, it would have to be introduced with the explicit consent of Parliament at a later date.
As I say, my initial assumption was that we would have two pieces of primary legislation, but things have moved on. The Government have come up with firm plans, which are that there should only be one piece of primary legislation, and, to satisfy those with concerns about the compulsory scheme, we have been given the clause 7 super-affirmative procedure.
There are important distinctions to be made between primary and secondary legislation in the context of the Human Rights Act. Primary legislation requires certification; this legislation has to say that it is compliant with the convention rights. Primary legislation cannot be struck down. As the courts have recently found out with the Anti-terrorism, Crime and Security Act 2001, they can say that they do not think legislation is compliant, but they have no ability to strike it down. We had a long debate about the sovereignty of Parliament and I remember that there were different models for human rights conventions and for incorporating human rights into law, including Canadian and Australian models, but we ended up with one that made a distinction between primary and secondary legislation.