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)
That was a random choice, but if my right hon. Friend the Member for Ross, Skye and Inverness, West (Mr. Kennedy) makes a challenge through the courts and is suddenly told that he must be subject to these orders, their status will be important if he is bringing a challenge—perhaps under article 8—asserting that the Government's measures are not proportionate or necessary in the context of the potential breach of his privacy. That would be a perfectly reasonable challenge, which we might expect to take place. At that point, the status of the regulations will be important.
In tabling the amendment, I am seeking to tease out the Minister's understanding of the status of these measures and, in particular, trying to get an answer this question: if the Bill goes through unamended and someone successfully challenges the regulations, thereby making it clear that they can be struck down by the courts in spite of the super-affirmative procedure, will the convention rights safeguards also apply to it?
The purpose of the amendment is to try to establish the interaction between quite a serious power that the Government are to take on themselves, which is quite likely to be challenged under the convention rights, and those convention rights. In particular, the amendment seeks to achieve understanding of the distinction between primary and secondary legislation, and whether that is affected at all by the fact that we have the super-affirmative procedure. It would be helpful to understand whether there is any distinction in respect of how negative and affirmative, or affirmative-plus, procedure are treated, or whether they are all essentially the same, and whether the additional bells and whistles that we have received from the Secretary of State make any difference to the status of the regulations when they have been passed.