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I notice that the Minister is reading very carefully from the notes with which he has been provided, and I agree with the sentiment behind them, but I am putting the case in a different way. We are talking about serious questions of human life, and every step should be taken to preserve it. I was originally minded to use the amendment to exclude the European convention on human rights, too. I describe amendment 3 as a probing amendment, but I want proper consideration of it, not just someone saying, “I don’t think the wording would achieve the total effect that the hon. Gentleman would wish it to.”
The risk to human life is serious; we have to take every step to ensure no repetition of the instances of murder and terrorism that we have witnessed, and which, in recent times, from Lee Rigby onwards, have become more and more prevalent. We know that people are prepared to take such steps; it may be that some of them are mentally disturbed. Perhaps people do not think that these things will happen again, but as I said in debate on another counter-terrorism Bill four or five years ago, the question is not whether we have another Lee Rigby, but when. We have had one after another, at regular intervals. They are becoming more and more imminent, and more and more serious. I doubt whether this Bill, however worthy its objectives, will deal with the problem in the manner in which I am setting out and which is necessary.
There is no doubt that Parliament has the power to legislate retrospectively. I want to make that entirely clear. If the words are clear and express, whatever judges may wish to interpret is displaced by the wording that Parliament actually utters. My authority for this—there are plenty of authorities, but I will give the House this one—are the words of Willes J in Phillips v. Eyre. Those words boil down to this: the courts will only ascribe retrospective force to new laws affecting rights if by
“express words or necessary implication it appears that such was the intention of the legislature”.
That is supported by page 56 of Bradley and Ewing’s “Constitutional and Administrative Law”, which is the greatest constitutional authority that we have in this country and is into its 15th edition. Bradley and Ewing are quite clear that if the words are express in particular, and/or by necessary implication it appears that such was the intention of the legislature, there is no argument. The courts, quite rightly, will interpret that law in the light of those express words. This is why I propose the insertion of the words “and notwithstanding the Human Rights Act 1998”. We could add “or the European convention on human rights”, for that matter—to answer the Minister’s point directly. I do not mind. I am not doing this as an exercise in academic analysis; I am doing it because I do not want people to be killed and I do not want people to be released in circumstances where they might kill people. There is too much at stake.
For practical purposes, I believe that we need to have legislative clarity and the avoidance of doubt in relation to the power of Parliament to legislate retrospectively. I am not interested in the possible interpretation of leading counsel, academics, bloggers, senior Treasury counsel or, for that matter—with the greatest respect, and I really mean that—either the Chair of the Justice Committee or the Lord Chancellor himself. In this House we make decisions about the legislation that we are going to pass. On the basis of what Willes J said in Phillips v. Eyre—and other cases—it is crystal clear that by using words that are explicit and express, we can have the effect of ensuring that human life is saved, and that is the main intention behind my amendment.
It is not for me to go into all the criticisms of the Human Rights Act 1998 that I have had over the years, but I can assure the House that an awful lot of distinguished lawyers, including the Foreign Secretary, have had a lot to say about this matter over the years, including Martin Howe QC. There is a huge body of legal opinion on both sides of the debate, and there are those who are inclined to take the view that the Human Rights Act has a lot of merit in it—and the charter of fundamental rights, for that matter, which we have now excluded by virtue of the withdrawal agreement Bill which became the European Union (Withdrawal Agreement) Act 2020 only about 10 days ago.