I beg to move,
the Lords Message [12th July 2000] communicating a Resolution relating to Human Rights (Joint Committee), be now considered;
this House concurs with the Lords in the said Resolution; and
the following Standing Order be made:
Contrary to the impression that some Members may have, the Human Rights Act preserves parliamentary sovereignty. The courts will have no power to strike down primary legislation on the ground that it is incompatible with rights under the European convention on human rights. Instead, they will be able to declare that legislation is incompatible with the convention rights. It will be up to Parliament to decide what action, if any, should be taken following a declaration of incompatibility.
That will be entirely a matter for Parliament to decide at the appropriate time. The business will be brought before the House and Parliament will take a decision on what it wishes to do. One will have to make a decision in the light of the individual judgment at that time.
I thought that legislation introduced in the House that is drafted on the Government's behalf always states now that it is compliant with the human rights legislation. Is the Minister telling us that he and perhaps his colleagues are introducing legislation that does not make that guarantee, as they accept that the ECHR may be lacking in some areas?
When we introduce legislation, we will introduce a statement of compatibility. That is standard practice at the moment, and we will continue it.
We shall introduce legislation that is compatible with the Human Rights Act. There will be a statement at the beginning of a Bill—Members are familiar with the procedure—to say that it is compatible.
Remedial orders, if sought, will follow roughly the same pattern as deregulation orders. Normally, a proposal will be laid and consulted on, during which time the Committee can report. Then a draft order will be laid, which may or may not incorporate any amendments suggested by the Committee. The Committee will report on the draft order. There is also provision, in cases of urgency, for made orders, which have the effect of law immediately, to be laid before Parliament for approval and for amendments to be made to those orders if necessary, taking into account any report by the Committee. So the Human Rights Committee is expected to play a role in examining remedial orders very similar to that played by the Deregulation Committee on deregulation orders. It is not known how frequently such remedial orders will be made; I hope and it is hoped that they will be rare. However, whether they are made rarely or not, the Joint Committee on Human Rights will be able to provide Parliament with an expert opinion on them.
The motion also contains the Standing Order that will give the Committee its powers. The Committee is expected to have six Members from each House, on the model of the Joint Committee on Parliamentary Privilege. It will have the powers commonly given to Select Committees plus a power to exchange papers with other Committees. However, because of its United Kingdom remit, it is not proposed that it should have a general power to travel. Rather, it will be permitted to make up to four visits a year to the institutions of the Council of Europe, the body responsible for the European convention on human rights.
Last November, some hon. Members expressed concern that the Committee would add to parliamentary bureaucracy. I was surprised that parliamentary scrutiny of the Executive should be considered bureaucratic, and I am hard put to think of Committees that could be fairly called so. It will be for the Committee itself to determine its subjects of inquiry and methods of working. I trust that it will be effective and influential in ensuring that Parliament continues its scrutiny of human rights. I commend the motion to the House.
Well, the official Opposition can, and I must tell my right hon. Friend that he will doubtless have an opportunity to express his reservations, which I am sure he will do pithily. I shall listen extremely carefully. In the meantime, I can tell the Minister that the thrust of the proposal is welcomed.
Perhaps I can explain why. Doubtless my right hon. Friend will wish to listen to my explanation.
Whatever view one may take about the merits of having incorporated the European convention on human rights into our law, the fact remains that the interplay between judicial decisions and the role of the House will be extremely important. Many of my hon. Friends who spoke during the passage of the Human Rights Act 1998 expressed concern about the dangers of Parliament being overridden. As I see it, far from the proposed Joint Committee contributing to that, it should provide a powerful mechanism to ensure that Parliament would have an input in the event of the judiciary reaching decisions—whether in respect of statutory instruments or of primary legislation—adverse to the apparent intention of a Minister or of the House and on which it could comment.
I speak as an enthusiast for European co-operation, as my hon. Friend knows, but I am worried. It would be all very well post hoc to be able to have such a discussion, but it appears that the Government will not put before Parliament anything that might be in contradistinction with the convention. It may be that Parliament might wish to agree something ab initio that is contrary to the convention. It appears that Parliament will not be in a position so to do. Am I right on that?
My right hon. Friend's comments fall into two different categories. First, he talks of the possibility of matters being determined that are thought to be in breach of the Human Rights Act 1998. It is abundantly clear that the House retains sovereignty. In that sense, in the event of the judiciary deciding that a piece of primary legislation is incompatible with the Act—notwithstanding that, and having considered the matter carefully—we can determine that we do not want to amend such legislation. If the House so decides in those circumstances, that is the end of the matter; albeit the option might still remain to an individual to take his case before the European Court of Human Rights in Strasbourg, which has been done for the past 30 or 40 years. I forget the period over which—
I think that the Minister is correct. We have come to the 50th anniversary, or close to it, although I think that it was slightly later that the right to direct appeal was ratified by the House.
The second matter is whether we wish to introduce legislation that is, or might be, contrary to the Human Rights Act. The House might decide that it wishes to put it on the statute book. I understand that in those circumstances—the Minister will correct me if I am wrong—there is nothing to prevent us so doing. It would then be for somebody to mount a challenge in the courts to get them to rule that that legislation was incompatible with the Act. At that point, we would then decide whether we wished to agree that.
Surely the Government are saying that they will try to ensure that any legislation that they introduce is not incompatible, given the rights and wrongs of the case. Were they to make a mistake, they would try to use the procedures that are before us to remedy the matter immediately. Surely that implies that in effect decisions will be made by justices in the faraway court rather than by Parliament.
First, I have some doubts whether the imprimatur that appears on many pieces of legislation stating that it is compatible with the Human Rights Act will turn out to be the case. Since the Act has come into operation, I have been extremely concerned that far from it being the baseline for the establishment of rights, as one might have expected, it seems to have been used at times as an excuse for ratcheting down people's rights on the basis that it may still be possible to comply with the Act. That is a worrying development.
The abolition of trial by jury for certain categories of offences, for example, has been justified on the basis that that is compatible with the Act.
I hear my right hon. Friend say "Hunting". That will prove to be an interesting issue. I have serious reservations about the compatibility of the legislation on hunting that we shall be considering on Wednesday—or at least one option with which we shall be presented—with the Human Rights Act. That will have to be considered at a later stage.
It is because I have these anxieties that I can broadly welcome the establishment of a Joint Committee of both Houses, which will have an opportunity to provide some input on these matters. If I have a reservation about the motion, it is that there is some uncertainty—I hope that the Minister will be able to provide some clarification—about the scope of paragraph (3)(b), which reads:
and the Committee may report to the House on any matter arising from its consideration of the said proposals or draft orders.
That suggests to me that it is only in the event of a draft order or a remedial proposal being laid before the Joint Committee that the Committee can start thinking more widely about the problem or the topic presented to it, and that the Joint Committee will not be able to comment more generally on the way in which human rights are developing and on the way in which the Government may, for example, be using the Human Rights Act, as I suggested earlier, to restrict rather than enlarge people's rights.
I can reassure the hon. Gentleman that the Committee has wide powers, including powers to initiate action. I draw his attention to paragraph (4), which states that
the Committee may report to the House on any matter arising from its consideration of the said order or any replacement order.
That is wide enough to allow the Committee to do virtually what it wants.
I am grateful to the Minister. I accept that, with a little ingenuity, that should be possible. However, reading the text with a lawyer's eye suggests that until such a matter has been brought before the Committee, it will not be able to initiate proactively consideration of the way in which the Human Rights Act is progressing. Doubtless, that is a matter to which we can return. If the Committee is successful in its remit, and if it finds that it is being hindered by the wording of the order, I hope that the House will be able to revisit the matter.
It is extremely important that we should get regular reports from the Committee, stating how it sees the interplay between the role of the judiciary and the legislature and whether Parliament is working, so as to ensure that, as was argued during the passage of Act, the Act is seen not as a creature of the judiciary, but as evidence of active participation by the House in trying to ensure human rights.
I am grateful to my hon. Friend. He seems to be making a case in defence of the motion on the basis of his anxiety about the likelihood of the Government bringing before the House measures that contradict the human rights legislation. However, the Minister specifically said that the Government will not bring such measures before the House, so my hon. Friend's anxiety is not shared by the Minister. What, in my hon. Friend's view, is the reason why the Minister is introducing the legislation?
I am grateful to my hon. Friend. I am rather prepared to accept the Minister's word that he, and even the Government, do not wish to infringe the Human Rights Act that they put on the statute book. Without wishing to resort to prophecy, I must tell the Minister that I consider it very likely that in years to come it will turn out that Governments, including his own, succeed in doing exactly that. That is one of the reasons why I believe that the Committee is a good idea.
I had reservations about a number of pieces of legislation, as I mentioned. For example, the legislation that we passed in haste after the Omagh bombings has fortunately never been used, but if an attempt were ever made to use it, it might well fall foul of the scrutiny of the courts in respect of human rights criteria. The Government seem to be aware of that, as no attempt has been made to use the legislation.
I am grateful to my hon. Friend. Will he tell us at some stage in his remarks why he favours a Joint Committee with the House of Lords? What is wrong with each of the Houses of Parliament undertaking its own scrutiny and consideration in its unique and distinctive way? Why does my hon. Friend subscribe to the current fetish for Joint Committees with the Lords?
I have never considered myself a fetishist, but, as a member of the Joint Committee on Statutory Instruments, I believe that that Committee, which meets Members of the other place, benefits from the input that can be provided by Members of both Houses. I have little doubt that the nature of the Committee and the fact that its remit will be to scrutinise the activities of the Executive make a Joint Committee appropriate. After all, the Joint Committee may report what it likes, but it will ultimately be for this House to decide whether it accepts the Committee's report or wants to take its own view on the matter—my right hon. Friend is a prime example of someone who extols the privileges and rights of the House. I do not see how that prevents a Joint Committee from coming up with sensible reports and suggestions.
A number of people have been nominated to serve on the Committee. The official Opposition are happy with the names that have been proposed. We hope that they will be able to provide the scrutiny that is needed.
My hon. Friend and I do not want to pre-empt the next debate, which I am sure will be lively and quite lengthy, but is he saying on behalf of the official Opposition that he is content for parliamentary private secretaries to be members of a Committee that is to take the form of a Select Committee and scrutinise legislation?
I am grateful to the Minister for his confirmation.
I do not want to take up any more of the House's time. I simply want to conclude with this thought. The operation of the Human Rights Act will undoubtedly be controversial. Many people have serious reservations about aspects of the way in which it will work. Indeed, if evidence from my activities as a member of the council of Justice is anything to go by, there has been a backlash against the nature of the Act, and that is perfectly understandable in view of some of the developments that have taken place. That makes it all the more important for the House to have access to sensible and considered reports on its operation, and I hope that the Committee succeeds in keeping the House informed and enabling the operation of the Human Rights Act to remain principally the responsibility of Parliament, especially this House.
I am glad to contribute briefly to the debate, because I share the view of the Minister and the hon. Member for Beaconsfield (Mr. Grieve) that the Committee potentially has an extremely important role to play. I want to identify some potential weaknesses in that role under the motion.
The motion has been on the Order Paper for quite a long time, and, during that period, we have had an opportunity to examine its significance. However, a measure of its potential effectiveness has not been well established in relation to the other important scrutiny Committees of the House: the Public Accounts Committee and the Select Committee on Environmental Audit. Those Committee are true Select Committees, by which I mean that their membership is from the broad church of the House and their chairmanship is from the Opposition. That has given added significance to reports of the Public Accounts Committee, and that tradition is being faithfully replicated in the Environmental Audit Committee, which is a comparatively new Committee. My right hon. and hon. Friends and I believe that we should follow that pattern in this case.
Our amendment has not been selected, but it is extremely relevant to the effectiveness of the Committee in scrutinising important issues, if that is to be its role. The independence of this Joint Committee is at the heart of our debate.
I may have misunderstood the hon. Gentleman, but I should be grateful if he would respond to a point about that very issue of independence. Surely the whole function of the Committee is to do the court's work for it: it is to put the court's ruling into parliamentary language. Far from the Committee's being independent, this is the first time we have established a Committee to take orders from a court on what legislation should be put before the House.
I bow to the right hon. Gentleman's constitutional experience and expertise, but I do not think that that is the Committee's proper role. I think that, strictly speaking, it will play a traditional parliamentary role, which is not to take the place of the courts but to scrutinise the preparation of legislation by the Government of the day, and to seek as far as possible to ensure that it is compatible with the law as it stands—law that we have passed in the House. If that is challenged, it will go to the courts. That, surely, is a secondary rather than a primary stage.
I want to concentrate briefly on the way in which the Committee is to be set up. While perfectly proper reservations have already been expressed about the fact
that this will be a Joint Committee, the terms in which the House of Lords has constituted its membership are clearly relevant. I hope that the Minister will explain why the motion tabled in the other place is significantly different from the motion that we are discussing. For example—unless a change was made, and the motion eventually passed differs from the draft that I saw—the House of Lords passed subsection (5), which proposed
That the Committee have power to agree with the Commons in the appointment of a Chairman.
Why does our own motion not contain such a provision? Are the Government afraid to include one on our Order Paper?
The Government seem to have an odd preoccupation. They appear to be determined—in contrast to the well-established and useful convention applying to other scrutiny Committees—to appoint a Chair from their own ranks. Members may feel that I am over-sensitive, but I think that there is good reason to be sensitive.
Waiting to take part in the debate, while others spoke at length on other matters, I read The Parliamentary Monitor's information digest for January 2001, which has just reached us. It is usually an extremely reliable source, and I pay tribute to those who prepare it. The first item, headed "Political News", states:
Paul Goggins, Labour MP for Wythenshawe and Sale, East, has been appointed PPS to the Education and Employment Secretary, David Blunkett. Goggins replaces Jean Corston MP following her nomination as Chairwoman of the Parliamentary Select Committee on Human Rights.
That is an affront to the House. We have not even appointed the members of the Committee yet. I make no comment about the admirable qualities of the hon. Member for Bristol, East (Jean Corston): I am sure that, should she be appropriate for this task, she will fulfil it with zeal, consistency and commitment. However, the announcement was made before the House of Commons had decided who should be on the Committee, and whether it should be set up at all.
Why has this happened? Let me take the House back to some simple arithmetic. The other place does not have a majority of Government Members; therefore, there will be no automatic Government majority in the appointment of its six Committee members. This House—which, as we all know, contains at least three major parties and some minor parties—has a slightly different arithmetic composition. But if six and six are put together to make 12, it is possible, as things stand, that there will be no Government majority on the Joint Committee, and that the only way in which the Government can secure a majority will be by securing the Chair.
Not only do I believe that that is precisely what the Government are about; I believe it to constitute an affront to the House, and a total misunderstanding of the Committee's role. If the Committee will be as important as the Minister has said, as the hon. Member for Beaconsfield has said, and as the Members who are present in such vast numbers obviously realise, it would be outrageous if the scrutiny of legislation that will come before us were subjected to such petty party political considerations. As has already been pointed out, the Committee cannot take executive action. It will have to come back to the House and, indeed, to the other place in making its recommendations, so the primacy of the Commons is not affected by the Committee Chair, but, if the Committee starts on that party political basis, its independence seems to be doomed from the beginning.
It is important that the Committee should be given a fair wind. It should do its job effectively in scrutinising the material that will come before it as a result of the remit that it has been given and the House's decisions in the past, but it is not right that the Government should effectively hamper the Committee's work by insisting on appointing the Chair. That seems to be the case. It would be utterly wrong.
I warmly endorse the remarks by the hon. Member for North Cornwall (Mr. Tyler) about the manner in which the Government have gone about the appointment of the Committee, particularly its chairmanship. I do not cast any personal aspersions on the hon. Member for Bristol, East (Jean Corston), but I hope that, as a parliamentarian, she will accept that it is not honourable for us to have to read in some lobbyists' journal that the powers that be have nominated her before anyone in the House knows anything about it. Even tonight, we would know nothing about it had it not been published in The Parliamentary Monitor.
I must confess that I am an avid reader of The Parliamentary Monitor. I have not had an opportunity to review it tonight, but the appointment of the Chairman of the Committee will be a matter for the Committee itself. Whatever The Parliamentary Monitor says, that is a fact.
As the Minister knows, I have a lot of respect and affection for him. He is an extremely diligent Minister. He always seeks to inform the House, but I say in the kindest possible way I can that one is inclined to take the view of my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth).
How come that lobbying organisation—that is what these journals are—has been spun the story? Is it lying? Will the Government press office machinery go into action first thing in the morning to denounce the publication, saying that it has got it completely wrong, that it is a matter for the House and that the Government are deeply offended that the magazine should have thought that they had any intention of pre-empting the decision of Parliament or, in this case, of a parliamentary Committee.
Perhaps the acid test is whether the hon. Member for Bristol, East (Jean Corston) and the hon. Member for Kilmarnock and Loudoun (Mr. Browne) did resign as Parliamentary Private Secretaries. If they did, was that the first half of the deal to which the Minister will, unusually dishonourably, not admit but on which the hon. Member for North Cornwall (Mr. Tyler) has put his finger?
That seems to be the case. The information on the basis of which we on the Conservative Benches are acting is based on the reference material to hand, which is "Dod's Parliamentary Companion." The one that I have just been looking at is published for the year 2001. We have only just entered 2001, so the information upon which we are working is the latest available information. It suggests that my right hon. Friend is right and that those hon. Members did resign from those positions knowing full well that the Whips Office had told them, "You resign and you will get a nice little number."
Order. There is a danger that the House, led perhaps inadvertently by the hon. Member for North Cornwall (Mr. Tyler), the Liberal Democrat spokesman, is moving into the area covered by the next motion on the Order Paper. If the House continues much more on those lines, obviously, the occupant of the Chair will take a severe view as to the length of debate on the next matter.
I shall try to ensure that the weather is polite to the hon. Gentleman. The reference in The Parliamentary Monitor's information digest is to the "Parliamentary Select Committee on Human Rights", and is therefore very relevant to this debate. Moreover, the digest items are almost always taken from press releases from the responsible and relevant Department or party.
That is extremely helpful. I hope that the Minister will take on board what has been said in the debate, and report to the House on what action will be taken to put right what is generally regarded as at least an affront to the House. I realise, however, that you want us to debate that matter at the appropriate time, Mr. Deputy Speaker.
Although we do not want to discuss now the personalities of those who will serve on the Committee, has my hon. Friend found any reference at all in the proposed Standing Order to the existence of a Committee Chairman? Why are the Government presupposing that there will be a Chairman and that they will have to nominate someone?
I assume that, at some point, there will have to be a Committee Chairman; generally it happens that way. However, my right hon. Friend is entirely right that the only mention of a Chairman is in the amendments tabled by the hon. Member for North Cornwall and by my right hon. Friend the Member for Bromley and Chislehurst. I have some sympathy with the view of the hon. Member for North Cornwall that the Chairman should be an Opposition Member.
That is an extremely helpful intervention.
As my hon. Friend the Member for Beaconsfield (Mr. Grieve) knows, I am one of those who were intractably opposed to the Human Rights Act 1998. Unlike him, I am not a lawyer. I have generally found that lawyers are more favourably disposed than many lay people to the legislation.
I seriously wonder what the proposed Committee will do. I think that there is some deception and self-delusion in the matter. The Minister said, and my hon. Friend the Member for Beaconsfield essentially repeated, that there is no power in the 1998 Act to strike down primary legislation. I understand that. I simply ask the Minister to tell us on how many occasions a judgment by the European Court of Human Rights finding the United Kingdom Government in breach has been cast aside and the Court told to take a running jump? If the Minister can tell us on how many occasions that has happened, I am sure that the House would be interested to know.
The Minister's sedentary silence is confirmation that on no occasion has a British Government—the current Government or the previous, Conservative one—done anything other than roll over, accept a decision of the European Court of Human Rights and change the law. The essential point is that, in the early 1950s, when we signed up to the European convention on human rights, we did so only once the then Government were absolutely satisfied that our laws were compliant with it.
Order. I gave the hon. Gentleman a little rope in the hope that, as he promised, he was going to talk about the substance of the motion. However, he seems to be wandering away from the substance. I must urge him to come back.
Thank you, Mr. Deputy Speaker. I hope that you agree that I am entitled to respond to the Parliamentary Secretary's claim that there is no power to strike down primary legislation. The thrust of human rights legislation is that Parliament will not gainsay a decision by the courts. That means that there will be remedial orders, for which the Human Rights Act 1998 provides.
I am not clear about the purpose of the Committee. Will it act as a sift, after receiving a court decision, which contends that an Act of Parliament conflicts with human rights legislation? Will it act as the primary sifter and decide whether to table a remedial order, or will remedial orders be made in every case? In the case of the latter, the House will be obliged to roll over and amend primary legislation that we have passed by democratic vote in the Chamber, in accordance with our constituents' wishes.
The Committee will not be entitled to consider individual cases; they will rightly be ruled out. However, I want to know the precise way in which the Committee will operate. I am always suspicious of a Committee that may be tempted to usurp the role of the House. It seems to me that it will be a major problem if the courts decide that an Act of Parliament—primary legislation—conflicts with human rights legislation. That issue should not be determined by a small caucus; it should be discussed on the Floor of the House from the outset.
Let me assure the hon. Gentleman that the Committee will consider the matter, that its views will be sought and its points noted. The Government will not necessarily accept the Committee's views. Any legislation will be discussed on the Floor of the House.
There appears to be confusion at the heart of the matter. The Parliamentary Secretary—with, I believe, complete integrity—suggests that sovereignty rests with the House. We are told that the Committee will not exist simply to support the lawyers' views. Yet we are also told that the Committee is vital; the Parliamentary Secretary and the hon. Member for North Cornwall (Mr. Tyler) claim that it is enormously important. However, if sovereignty rests ultimately with the House, which may well disagree with the Committee, why is the Committee so important?
My hon. Friend makes an extremely good point. I do not need to repeat it; it speaks for itself. What is the purpose of the Committee if the decisions will ultimately be made on the Floor of the House? That is the essential point that I wanted to make.
I worry that we are being unduly influenced by human rights legislation. That is a grave matter, and we are in danger of having sold the pass. By setting up the Committee and advertising it to the rest of the world as an important Committee of the House, we invest unduly in the possibility of a challenge to Parliament's authority. We should not do that. We should not accept that a Committee of wonderful parliamentarians is to deal with a stream of hostile decisions from the Strand, telling us that our legislation is somehow incompatible with another view of human rights. Creating the Committee gives the impression that we are gearing up to receive such a stream of challenges.
Presumably, if the Committee were to report that it considered the situation to be out of control and that judicial interference was getting far too great, my hon. Friend would think that it was fulfilling a proper function.
My hon. Friend has touching faith in the way in which the Committee will operate. If it were to do that, obviously I would welcome it. However, that is not the way in which the tide is flowing.
The quorum of the Committee is to be three. The Committee will have a dozen members and will deal with extremely important issues which are key to why we as parliamentarians are here. Both Front Benches agree that the Committee should be invested with a degree of authority about which some of us are not quite so certain. With the proposed quorum, the Government—with their overwhelming majority on the Committee—will have to put up only three members to make it work.
I am grateful for that clarification, but, with a quorum of three, three Government members would be able to force through a decision of the Committee.
I hear what my hon. Friend the Member for Beaconsfield says and I hope that he is right. However, I fear that the tide is flowing in a different direction from that which he and I would like.
I have been swayed by some of the arguments made so far, and I hope that the Minister will take the proposal back to redraft it so that it has more chance of working sensibly.
We are invited to make a Standing Order to have a Select Committee consisting of six members from this House and six from another place. We have just heard about some of the impracticalities and difficulties that this produces.
Would it not be better if there were seven members from this House—first, so that if they all turned up, this House could outnumber representatives from their lordships House, which would reflect the prime position of this House; and, secondly, to ensure that if the membership of the Committee were in disagreement, there would be a clear way of making a decision? If everyone turned up, there would be an odd number of people present, so there would be a chance of reaching a conclusion.
The debate has revealed a huge gap in the drafting, in that, unlike some of the other measures coming before the House to set up similar Committees, the proposed Standing Order makes no express provision for a Chairman. There is certainly no express provision for a Chairman's casting vote. The guess made by the hon. Member for North Cornwall (Mr. Tyler) is both right and relevant to the provisions before us. It does indeed look as though the Government are minded to make sure that the Chairman is one of their own Members, who has recently stepped down from duties connected with the Front Bench—and to give that Chairman a casting vote. They could then control the Committee, should it become too independent-minded.
It would be much fairer if that were made clear in the wording of the Standing Order. It should be properly drafted, so that if that were the Government's intention, and they had a majority for it—two very possible situations—it would be clear. There would then be no complexities to sort out in the Committee's early meetings if people did not like that implied script, which had not been clearly stated.
My next worry about the drafting arises in paragraph (2)(a), which says that the Committee's remit is
matters relating to human rights in the United Kingdom.
That invites comparison with the Tax Simplification Select Committee, to which the House has just agreed. That Committee will have seven members from the House of Commons, and the Minister who spoke for the Government in that debate told us that it involved very narrow technical work. In this debate, the Parliamentary Secretary, Privy Council Office tells us that the work of the Human Rights Committee will be very wide and very important—yet it warrants one fewer member from the House of Commons than the Tax Simplification Committee. That is another argument in favour of reconsidering the numbers.
Perhaps the Minister should also re-examine the drafting. It is so wide that, with the six-six split, the Committee could find it difficult to agree its work load, which might range more widely than the Government would like—and, indeed, more widely than might be appropriate for a Select Committee. It might start to examine issues that would be far better examined by the House as a whole on appropriate debating occasions.
I wonder whether the Minister would like to narrow the remit to areas in which there is an actual or potential conflict between what this House wishes to do, and what judges in a faraway court think we ought to do. That is, I think, meant to be the nub of the proposal, but it is not reflected in the drafting of paragraph (2)(a).
In contrast, I fear that the second part of paragraph (2)(a) may prove too narrow, because it expressly excludes consideration of individual cases. I understand why some draftsman or lawyer might have put that exclusion in—such people would not want a Select Committee of this House to get involved with the detail of the judicial process when an individual case was going through the courts. Obviously, that would not be appropriate, sensible, or even possible under our rules.
However, the Committee, and the House as a whole, may well have to examine the consequences of test cases, other individual cases, or cases that have brought a generic point before the court, when they have come to a conclusion in the court. I wonder whether paragraph (2)(a) is so odd that while the first part of it is far too wide, so that the Committee will not be focused on what I think is the Government's intention, the exclusion in the second part of it could get in the way of what the Government do want the Committee to do—to react to individual cases after they have been determined or decided, if it emerges that the Committee and the courts think that our law has, deliberately or inadvertently, been incompatible with the European convention on human rights as interpreted in the courts.
Paragraph (2)(b) says that the Committee should consider
proposals for remedial orders, draft remedial orders and remedial orders made under Section 10 of and laid under Schedule 2 to the Human Rights Act 1998.
I understand why that should be so, yet sub-paragraph (c) says that the Committee must also consider
whether the special attention of the House should be drawn to
draft remedial orders and remedial orders
on any of the grounds specified in Standing Order No. 151.
This is where we have seen potential problems about how much the Committee has the power and how much it should be a matter for the House as a whole. I am not sure whether the combined drafting of paragraphs (b) and (c) satisfies my right hon. and hon. Friends who believe that more of this should come back to the House as a whole. That is not necessarily clear or implied from the slightly loose drafting of paragraphs (a) and (b).
The Committee is told that it shall report to the House
Paragraph (5) makes it clear that the Committee's quorum should be only three. We were very moved and pleased that the Paymaster General, talking about a similar proposal for tax simplification, graciously conceded or clarified that that Committee's quorum would be four. It seems a pity that the number required for this Committee's quorum is fewer when, as Ministers seem to have said from the Dispatch Box, it will be dealing with bigger and more important issues.
Perhaps I can clarify the matter for the right hon. Gentleman. The quorum for the Committee will be three from each House, resulting in a quorum of six in total. That is normal practice.
I am very grateful to the Minister for that; it was not clear to me from the drafting. That explanation is now in Hansard, which is a great reassurance. We shall have a quorum of six for a Committee of 12, while the House as a whole—although not all of us—was satisfied with a quorum of four for a Committee of 13. There are some dissimilarities in treatment. At least this one is compatible with the Minister saying that this Committee will deal with weightier and more important matters. We are very relieved to hear that, and I am sure that it will be an important consideration when we discuss who might be the right person, or group of Members, to sit on the Committee.
The next matter that worries me in the drafting is in paragraph (7)(a). It has the conventional requirement that the Committee shall have the power
(a) to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place within the United Kingdom.
I am very happy with those provisions; they are essential to the conduct of the Select Committee's work, as they are to many others. However, I was surprised to learn that the Committee can
adjourn to institutions of the Council of Europe outside the United Kingdom no more than four times in any calendar year.
That might become an invitation to the Committee to ensure that it goes to such places four times a year and might be an inducement for Members to sit on the Committee. I am not sure whether the Committee's deliberations will require expensive travel outside the United Kingdom. I should have thought that it could do its work, as defined in the earlier paragraphs, by being present in or around this great building at Westminster and calling for persons, papers and records here. After all, these are matters related to the legislation of the United Kingdom; they will not be elucidated by taking a Cook's tour of various places around Europe, and I am not sure why we need that additional expense.
This is another example of a Select Committee being introduced on fairly slender evidence of the need, to fit in, in a rather strange way, with our normal procedures, with no budget or statement from the Government about the cost. We were not told how much the tax simplification Joint Committee could spend on tax advice and special advisers. Here again, we are not told how much can be spent on travel.
Paragraph (7)(b) shows that the Committee can
appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the committee's order of reference.
I understand the need for that, but the Minister could have told us how much that might entail. How many advisers are we talking about? To which areas of specialism will the Committee need access, given that it has access to all the facilities of the House—including the Library? Furthermore, the Government are on tap for cross examination and the Committee can send for Ministers with their papers and records. One needs some control; as the Committee, sensibly, has wide-ranging powers to ask people to give their time and opinions free, do we really need as many specialist advisers as this open-ended measure could propose?
Will the Minister reconsider the measure? Will he work again on the number of members, the provision of the chairmanship, the casting vote and the balance between procedures under paragraphs (2) and (3)? That will reassure those of us who want the House clearly to be sovereign. We feel that it will not be sovereign under the proposal, which is a way of accommodating the wishes of the court without us really being able to say that we disagree. Will the Minister look again at the gyrations around Europe and in Britain? The overall budget for specialist advisers should certainly be considered. The measure would then be in a better shape for us to vote on.
Early exchanges in the debate between the Minister and hon. Members raised a conundrum that we need to resolve. Except in one instance when the Committee makes general comments on the state of human rights, it will come into play only if an Act is found to be non-compliant by the courts. The Labour Government intend to introduce only Bills whose compliance with human rights legislation they have certified, so why do we need the Committee?
There are two possible answers; they will naturally affect our judgment as to whether the resolution is correctly framed. The first is that the courts may find old legislation non-compliant. Even though the House and the country have been perfectly satisfied with it and do not feel that it infringes human rights in any way, some judge may decide that it is non-compliant.
Secondly, the Government may misjudge whether their legislation is compliant. The reason for that is because the application of the human rights convention is essentially subjective. Human rights are what the relevant judges decide the convention means. That is a subjective judgment.
There are no absolute and incontrovertible human rights. A balance must always be made between one right and another. We can say that there is a right to free speech, but that may conflict with a right to privacy; we have to achieve a balance between the two. In the past, we have recognised that that balancing process is, in essence, political; it has to take into account practical realities— the temper and mood of the country, past experience and so on. Hence the decision was taken by the people's parliamentary representatives in this place and not by the courts or by unelected people who could not be turfed out if they got the judgment wrong.
There are no infallible rules by which a given convention—rather abstractly and vaguely phrased—can be applied in practice, so we are reliant on the subjective working of judges' minds. I shall return to that point in due course.
I agree with my right hon. Friend, but he should note that paragraph (2)(a) does not limit the Committee to discussing issues on which we may be deemed to be in disagreement with the convention. The proposal is so wide ranging. Does he not see that the Committee could also set out its own agenda, which might be different from that of the convention and of the Government? Would there not then be an even bigger muddle?
My right hon. Friend is correct. That was the exception to which I referred when I pointed out that the Committee would normally come into play only when there had been a finding of non-compliance. I shall not follow my right hon. Friend down the avenue of how the Committee might interpret the power that, for some reason, it will be given under this proposal.
As I understand it, normally, in considering whether any Act of Parliament infringes human rights, judges will interpret the Act not as it has been written but as they think it ought to have been written to make it compliant with the European Convention on Human Rights. If they cannot torture the Act's wording into compliance with the convention or with what they think it means, they will rule that it is non-compliant.
The Government will then draft an order to make that legislation compliant. The Committee will examine that order, and say whether it agrees with it or it should be amended. It will not be able to amend it; it will be able only to suggest amendments. The Government may then take those suggestions on board, or not, as the case may be. They will then put to the House their final draft of the order necessary to make the legislation compliant. The House will be able to reject or accept that order, but not to amend it.
My right hon. Friend seems to be saying that the Committee is either superfluous or highly intrusive. To paraphrase my right hon. Friend the Member for Wokingham (Mr. Redwood), it is either too broad or too narrow. If so, and if the Committee is to be intrusive, surely it will be doing the bidding of the courts rather than the bidding of the House. That is certainly the implication of what my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) is saying.
That may well be an implication of my remarks which my hon. Friend has drawn from them, but it was not the direction in which my argument was heading.
My point is that the six Members of Parliament on the Committee will be the only Members of the House who will have any opportunity, and then only indirectly and with the Government's say-so, to amend the order that the Government put before them. The legislation allows the Government to amend primary legislation in response to a ruling from the courts by an order, and if I am correct— doubtless the Minister will intervene if I am not—the House will not have the chance to amend that change to our primary legislation. It is only as a half-hearted response to the fact that we are faced with a fait accompli—the courts driving the Government to introduce an order that is not amendable—that the Committee is being set up to provide the spurious pretence that amendment is possible.
I hope that my right hon. Friend will agree that his proposition and mine are not mutually exclusive. It may well be that the Committee will do the work of the House, in the sense that it replaces the House, but it is also doing the bidding of the courts. The worrying thing about the Committee is that if it is not superfluous, as we all hope it might be, it will be highly damaging.
I am sure that my hon. Friend is right. The Committee will almost be institutionally biased, if I may coin a phrase, in seeing its role as simply deciding whether the Government have correctly interpreted the will of the courts and succeeded in rendering legislation compliant, in the courts' view, with the human rights convention. There is no positive compulsion in the Committee's terms of reference, as laid down by the motion, but that is how things will work out in practice and it is the only way in which an all-party Committee could operate, except in the most exceptional circumstances.
We are faced with a situation in which the Government are pretending to provide the House with at least some means of influencing the orders that they will place before it, and that means that only the Committee, and the six members of it who are drawn from this House, will have any chance of influencing the detail of the order put before the House.
That is monstrous in two respects. First, six Members are far too few. The Committee should really be of the whole House. If the motion is not passed tonight, we would have the chance to table amendments to that effect. Secondly, the Committee should have the power not just to suggest amendments to the Government, but to vote and insist on amendments to the Government's proposed Standing Order. I would like us to move in that direction.
We all know that, in practice, once this House is faced with a finding by the courts of non-compliance in respect of a piece of legislation that it has passed, although notionally retaining sovereignty, as the Minister tried to convince us it would, it will not reject or repudiate the finding, say that it intends to allow the legislation to stand or alter it in ways that do not at least try to remove the courts' objections.
The House will not do so because if it did it would be held up for vilification by the media as opposed to human rights. No one would ask to whose definition of human rights the House is opposed, or whether it has a different, possibly higher, better, freer view of human rights in such circumstances. It will be labelled by the courts as against human rights. So, de facto, sovereignty has been surrendered and rendered inoperable by the procedures of the underlying legislation. The motion does nothing to restore sovereignty to the House, as the Minister pretended. We should be very clear about that.
We have come to the nub of the issue. My right hon. Friend seems to be saying that the Committee is a palliative, a pretence. In practice, the Government and this House could in no way overrule the decision of the courts, for the reasons that he has given. We are setting up the Committee to make the matter look better, acceptable—to make hon. Members think that they have had some involvement, when in fact they have had almost none.
Yes, having been castrated, the House has been given the chance to pretend that it still has some role to play in the harem. It has not—at least not one that will be much fun. All this matters a lot because we are empowering courts to review and consider legislation and, effectively, to require the House to alter it if the courts think that it does not meet their beliefs of what human rights should be.
I was much struck by the comments of Hayek in "Law, Legislation and Liberty", in which he says that, normally, the legal profession is the most conservative of professions, which will try to interpret things in line with the status quo—except when it is driven by a new legal philosophy. Then, he says, lawyers become members of the most radical of professions, altering law in every jot and tittle to bring it into line with their new philosophy.
Unfortunately, our legal profession is increasingly dominated by the philosophy of political correctness and of positive rights rather than the traditional view of procedural rights. So, we are likely to find ourselves with a legal profession introducing increasing numbers of rulings to the effect that the laws passed by this House do not meet their idea of the law of the country. They will be proposing that there are legal rights to a job, for example. If measures under the Government's new deal do not automatically give people a job of the type to which the courts think that people have a right, the Government will be required to change that legislation.
We could find all sorts of positive rights emerging, for example, in the sphere of employment employers might be deemed to have a duty to employ people—rather than simply not to discriminate against them—because they belong to some class that is under-represented among the firm's staff. Can we imagine the Committee amending an order that a Government—
Sensing that you were about to bring me back to that point, Madam Deputy Speaker, I had reached it just as you rose to your feet. The precise matter to which we must give attention is whether or not the Committee would behave in a way that would improve matters. In the powers and duties given to the Committee, I perceive no evidence that would convince me that the Committee would ever help us to stand up against a legal profession that is empowered by the Human Rights Act and motivated by political correctness to overhaul the law.
My right hon. Friend has referred, rightly and with due deference, to the Hayekian view. As I am sure you agree, Madam Deputy Speaker, Friedrich von Hayek was a great man. However, paragraph (2)(a) of the motion mentions consideration of
matters relating to human rights
on which there are, inevitably, many different views. What assessment has my right hon. Friend made of the view articulated in "A Nation or No Nation: Six Years in British Politics", published by Batsford, in which the Powellite view is ably expressed?
That was one of the formative texts in the development of my political thinking. It underlies many of my comments tonight and it is no coincidence that my hon. Friend is drawn to recall that seminal work. However, I would not elaborate further on that book by a great former Member of Parliament.
I emphasise that, if we approve the motion, we shall be taking part in a triple pretence: that the House retains any operable sovereignty in such matters; that it will have any say in how the Government decide to comply with the courts; and that the Committee has any power to influence the way in which the Government operate. We should have no truck with pretence and play-acting. Either we radically alter the motion, or we reject it.
I welcome the broad support given by the official Opposition and the hon. Member for North Cornwall (Mr. Tyler) and should like to make a couple of preliminary points. First, the hon. Member for Beaconsfield (Mr. Grieve) ably made the point that the European convention on human rights has been in force for 50 years and British citizens have had recourse to it throughout that period. All hon. Members recognise that, in the past, legislation has had to be amended in the light of decisions by the European Court.
Secondly, the Human Rights Act 1998 is in force. Parliament passed that Act. We had a long debate on it and one of the Government's commitments was to set up the Joint Committee. This evening, there has been a debate about how much the Committee will have to do. One issue is whether the Committee will be overworked, and I remind colleagues of the Scottish experience. The Scottish Parliament signed up to the Human Rights Act a year before us, and so far its experience suggests that the number of challenges has been fairly limited. However, I think that there will be challenges.
The right hon. Member for Hitchin and Harpenden (Mr. Lilley) correctly identified the fact that past legislation could be reviewed and, like the hon. Member for Beaconsfield, acknowledged that, although a certificate of compatibility is given to Bills, the Government do not always get it right. I have no doubt that there will be challenges to future legislation. As I said, the Human Rights Act is now in force, and the debate will concern how many challenges are made. I remind the House again that British citizens already have access to the European convention on human rights, and have had it for 50 years.
The House has not been asked to consider anything new, save the mechanism that it is being asked to agree on the Joint Committee. A couple of points are at issue. First, on the quorum, may I reinforce the point that I made in an intervention? The quorum is three Members from each House, making a total of six. There has been a good deal of debate about the chairmanship of the Committee. I say directly to the hon. Member for North Cornwall that I shall look to see what press releases there have been. To my knowledge, so far there have been none. I would be surprised if there had been any, but I will look carefully at the matter and write to the hon. Gentleman.
Let me again reinforce the point that it will be a matter for the Committee to decide who will, or will not, be the Chairman. I must not disguise the fact that I know that Labour Members who will serve on the Committee have an idea who they will, or will not, nominate. However, at the end of the day, that will be a matter for the Committee.
My hon. Friend the Member for Bristol, East (Jean Corston), who was described in glowing terms by the hon. Member for North Cornwall, resigned as PPS to be a member of the Committee, as did my hon. Friends the Members for Kilmarnock and Loudoun (Mr. Browne) and for Clwyd, West (Mr. Thomas). That is an indication of the importance that they attach to the Committee.
I reinforce the point that deciding the chairmanship will be a matter for the Committee. The hon. Member for North Cornwall argued that it was necessary to have a Chairman from the Opposition because of the casting vote. As I understand it—I am pretty confident about this but I will check, write to the hon. Gentleman and put a copy in the Library—as this is a Joint Committee, there will be no casting vote: every Committee member has an equal vote. That is a long tradition of the House, and I would be surprised if I am wrong.
The other debate in the Chamber tonight has been about whether the powers of the Committee are too wide. The right hon. Member for Wokingham (Mr. Redwood) explored that point and felt that the powers of the Committee were far too wide. The hon. Member for South Holland and The Deepings (Mr. Hayes) was keen to suggest that the powers were too restrictive and that there was no need for the Committee at all. I have been rather shocked during our debate because, by tradition and in what they normally say, Opposition Members envisage greater parliamentary scrutiny. Here we are, introducing a proposal that provides parliamentary scrutiny: I support it, and I hope that the House will.