I beg to move amendment No. 114, in
clause 29, page 18, line 36, at end insert—
'(2) Emergency regulations shall be treated for the purposes of the Human Rights Act 1998 (c.42) as subordinate legislation and not primary legislation (whether or not they amend primary legislation).'.
The Government considered whether emergency regulations required procedural protection from challenges on human rights grounds. To prompt discussion on the matter, the draft Bill published in June included a clause that provided that emergency regulations were to be treated as primary legislation for the purposes of the Human Rights Act. The effect would have been to limit the remedies that a court could award on a successful challenge to emergency regulations on human rights grounds, informed by the consultation process that I described at length. On the report of the Joint Committee and its further analysis, the Government decided that that was not necessary, and the relevant clause was not included in the Bill when it was published. However, it has become apparent that the Human Rights Act 1998 will treat regulations as primary legislation in certain circumstances, particularly if the regulations amend primary legislation. That does not reflect the Government's intention. The amendment will ensure that emergency regulations are treated as subordinate legislation for the purposes of the Human Rights Act, even if they amend primary legislation. Therefore, the emergency regulations can be struck down by the courts on human rights grounds when appropriate.
The Government deserve to be congratulated on this point, which was raised effectively by Liberty and Justice during consultation before the Joint Committee. The Government conceded that they wished to make changes, and they have done so in two steps. The first was to remove the provision that referred to treating the regulations as primary legislation, and the second was the explicit reference—clearly and neatly worded—to the fact that the regulations are not to be treated as primary legislation.
I am fascinated by the fact that the Minister said that the Government's rationale for including the provision that the regulations be treated as primary legislation in the draft Bill was ''to prompt discussion''. That is a delicate and nicely phrased way of putting it. It prompted not only discussion, but horrified responses. If that was the aim, the Minister succeeded. He delicately phrased the inclusion of a provision that rightly concerned many people. I congratulate the Government on responding positively to that concern and making this explicit revision to the Bill.
Concerns were raised by a variety of bodies, such as those involved with the fire services, about the Government's approach. If an injunction is sought from the courts, will those seeking the injunction have to give an undertaking in damages?
Let me first deal with the point made by the hon. Member for Sheffield, Hallam. I assure the House that we are not seeking to appear wise after the event about the inclusion of the provision in the draft Bill. It might be helpful if I share the specific point that we raised in the
Government response to the Joint Committee. We stated:
''The consultation paper outlined the Government's reasons for including this provision in the draft Bill. The Government considers that in an emergency, it is necessary to balance individual rights against the need to respond to an emergency. The Government was keen to hear what the Committee and consultees had to say on how best to strike this balance. The provision included in the draft Bill providing for emergency regulations to be treated as primary legislation for the purposes of the Human Rights Act was one way to strike the balance. However, the Government made clear in its consultation paper that the case for its inclusion in the final bill was by no means certain.''
We anticipated that the issue would stimulate public debate, and we were keen to ensure that we considered the widest range of views when deciding whether the draft clause struck the right balance. That is a further example of the Government being willing to listen to reasoned argument if we find that it supports our substantive policy goals. I am aware that human rights groups such as Liberty and Justice have continued to raise concerns. Through what the hon. Member for Sheffield, Hallam described as the two-step process, we have been able to use the back door on the concerns raised.
The further point raised by the hon. Member for North-East Hertfordshire was about remedies. It is important to clarify the balance that the Government intend to strike. It became apparent that we had to ensure that appropriate safeguards were in place. The treatment of emergency regulations as subordinate legislation for the purposes of the Human Rights Act, even if they amend primary legislation, is important and is reflected in the amendment. The amendment will ensure that emergency regulations can be struck down by the courts in certain circumstances. The remedies that are then available to courts are a matter for the courts themselves. The hon. Gentleman's point addressed the remedies rather than the legitimacy of the action.
Amendment agreed to.
Clause 29, as amended, ordered to stand part of the Bill.
Clause 30 ordered to stand part of the Bill.