My Lords, we have heard some amazing and inspiring speeches. The noble and learned Lord, Lord Judge, spoke of the “lamentable provision” of Clause 47. As has been voiced so eloquently this evening, I fear that there is too much that is lamentable in Part 5 of the Bill.
As a member of the Joint Committee on Human Rights, I shall speak to Amendments 164 and 165, which relate to the committee’s inquiry and report on this Bill. The committee expressed a number of reservations about the Bill, and considers it hard to reconcile the Bill with government statements that it is compatible with human rights. The Human Rights Act 1998 makes it unlawful for public authorities, including Ministers, to act incompatibly with the rights guaranteed by the European Convention on Human Rights. By stating that Section 6 of the HRA does not apply to the making of regulations under Clauses 44 and 45, the Bill removes a prohibition on Ministers making regulations that violate human rights. The committee concluded that it could not see why this provision would be necessary unless the Government were contemplating regulations that did not comply with human rights.
This amendment fulfils the requirement stated in the conclusion of the JCHR report:
“The Bill should be amended to make clear that Minsters making regulations must comply with the rights recognised in the Human Rights Act 1998.”
This is surely an ethical principle, about which the right reverend Prelate the Bishop of Leeds and the noble Baroness, Lady Altmann, spoke so eloquently.
Amendment 165 seeks to omit Clause 47(3). In its report, the Joint Committee on Human Rights concluded that it
“does not consider it constitutionally acceptable for ordinary delegated legislation to be treated for the purposes of the Human Rights Act as if it were primary legislation passed by Parliament.”
I note that the Constitution Committee has echoed this concern. The Bill as it stands would remove the power of the courts with regard to their option to strike down legislation made by Ministers if it is incompatible with the rights guaranteed by the European Convention on Human Rights. Clause 47 would insulate secondary legislation that breaches human rights from the usual consequences of a successful legal challenge. This clause should clearly be removed, as should all of Part 5 of the Bill.