Clause 7 - Procedure for orders under s. 6

Identity Cards Bill – in a Public Bill Committee at 4:45 pm on 20 January 2005.

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Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry) 4:45, 20 January 2005

I beg to move amendment No. 86, in clause 7, page 6, line 45, at end add—

'(7) Orders made under section 6 shall be considered to be primary legislation for the purposes of the Human Rights Act 1998.'.

In moving the amendment, I am relying on the fact that there is not too much joined-up government at present. That echoes a debate that took place in the context of the Civil Contingencies Bill, which was handled by the Cabinet Office. The Government sought to bring in some sweeping powers as secondary legislation and to treat them as primary legislation for the purpose of the Human Rights Act 1998. We spent a lot of time arguing fiercely against that, so, in tabling the amendment, I am not necessarily expecting the Minister to respond to it affirmatively or even in a super-affirmative fashion. I want only to tease out from him how the Human Rights Act and the provisions of the European convention on human rights will interact with any regulations made under clause 6.

It is important to test matters a little. We seem to have an innovation under clause 7 and I would be interested to hear from the Minister other examples of when a similar procedure has been used. The Government are saying that they do not wish to come back with primary legislation when they want to make matters compulsory. The playing field has moved. When we started discussing ID cards, it was suggested that we would have two pieces of primary legislation. One would bring in a voluntary scheme and we would have the assurance that, if the Government wished to return with a compulsory scheme, it would have to be introduced with the explicit consent of Parliament at a later date.

As I say, my initial assumption was that we would have two pieces of primary legislation, but things have moved on. The Government have come up with firm plans, which are that there should only be one piece of primary legislation, and, to satisfy those with concerns about the compulsory scheme, we have been given the clause 7 super-affirmative procedure.

There are important distinctions to be made between primary and secondary legislation in the context of the Human Rights Act. Primary legislation requires certification; this legislation has to say that it is compliant with the convention rights. Primary legislation cannot be struck down. As the courts have recently found out with the Anti-terrorism, Crime and Security Act 2001, they can say that they do not think legislation is compliant, but they have no ability to strike it down. We had a long debate about the sovereignty of Parliament and I remember that there were different models for human rights conventions and for incorporating human rights into law, including Canadian and Australian models, but we ended up with one that made a distinction between primary and secondary legislation.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

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.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I am grateful to the hon. Gentleman for his explanation. I shall respond quickly and in short compass to the question that he asked, because it can be answered straightforwardly. I suspect that when he hears the answer, he will not want to press his amendment.

On one view, tabling the amendment could imply that the hon. Gentleman and his Liberal Democrat colleagues acknowledge that the so-called super-affirmative procedure is almost the equivalent of primary legislation in terms of parliamentary scrutiny. However, that is not what he is saying. His amendment would limit the power of the court to quash an order made under clause 7. The Government's position is that we are confident that the Bill's provisions and the powers that it gives to make subordinate legislation are   compatible with convention rights. We see no need to limit the courts' powers of scrutiny of orders under the clause. That is the answer that the hon. Gentleman wants. I present it to him and invite him to withdraw his amendment.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

That is a helpful response from the Minister. He has clearly put on the record the fact that regulations presented in this way could be struck down by the courts and that the Government are prepared to go down that route because of their confidence in human rights compliance. I suspect that at some point that will be tested. We would have preferred a second piece of primary legislation, but I suspect that we are not going to get it. We need to consider some of those issues on clause stand part, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

It will be helpful to have a short stand part debate and I deliberately tried not to steer on to the questions that I want to ask now. In particular, it would be helpful to understand subsection (2), which is the novel part about a report being made. I would like a couple of minutes' explanation from the Minister of what he envisages being in that report. The subsection is a fairly bland statement and we are being asked to trust that it will somehow lead to a significantly more rigorous process than a normal affirmative resolution procedure—the difference being that the report has been thrown into the mix.

It would be helpful to understand the Government's intention, particularly as the Minister has said that this is a moving target and things will evolve. To what extent will we be able to roam widely in a debate on compulsory registration or will there be a normal affirmative resolution procedure with a short document attached? Either could be the case as the clause reads: there could be a comprehensive exercise or an affirmative resolution procedure with little more than a fig leaf to cover it. In the latter case, the Government could argue that they conceded that there would be extra scrutiny, when that would not be the case.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

The principle of compulsion has already been the subject of some debate, not only on Second Reading, but during our deliberations. The clause sets out how the requirement to register will be put into effect. First, it may be worth repeating what the effect of compulsion will be. Those to whom it applies will be under an obligation to be entered in the register from a time at which they could not otherwise be subject to such an obligation. That is all: there is no compulsion to carry, no extra power for the police and no criminalisation of those who fail to meet their obligations.

In the process, the Government must first publish a report setting out their reasons for wanting to make registration compulsory, including a proposal on how compulsion would operate—for example, the categories of people to whom it would apply, the timetable for its implementation and all the other factors that I spelled out in my response.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

My understanding of negative or positive procedure is that an order is laid before the House, it is considered for an hour and a half in Committee, and the only options that the Committee has are to approve or reject it—there is no opportunity to amend. Is the Minister outlining a new parliamentary procedure?

While I am on my feet, if I may crave your indulgence, Ms Anderson, the House of Lords has a convention that it does not normally vote against affirmative resolutions. Will the convention be broken in this case if the House disapproves the motion?

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

The report will need to set out exactly what the order will do and the reasons for the proposal. It will be unlike an affirmative order as we would recognise it in that the reasons will need to be given and modifications can be made—it will be amendable. On the basis of that proposal, as agreed, normal affirmative procedure will proceed.

Photo of David Curry David Curry Conservative, Skipton and Ripon 5:00, 20 January 2005

In practice, this is as though it would be a matter for consideration on Report, and we will all behave as if it were a Report stage. There will be amendments and then, presumably, a vote on the final document, as amended. That is the equivalent of a Third Reading.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

This is the new procedure, which has been created by this Bill. I do not recognise it. I am always reluctant to be tempted very quickly to agree with right hon. or hon. Members, but to the extent that the right hon. Gentleman draws my attention to that analogy, he is right. In my view, the procedure allows us to have the appropriate level of parliamentary scrutiny of the process while having the debate about compulsion in the context of primary legislation now, before any of the significant steps are taken. Some of   the steps will involve considerable public expenditure. This seems to be entirely the right way to proceed with the scheme.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

As the Minister says, this sounds like an entirely new procedure, which will be put on the Order Paper as an Order of the Day and debated on the Floor of the House. Therefore, it would be amendable. I do not know whether he will be able to respond to that point, but will he give me an assurance that he and his Department have discussed the matter with the House authorities and that the Standing Orders of the House will allow for such a procedure? Will they have to be altered?

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I do not like doing this, but I will have to say candidly to the hon. Gentleman that I will need to come back to him on that issue. His question requires a precise answer, and I would much rather it if members of the Committee would allow me to give it such an answer. I promise that I will give a precise answer before the Committee reaches its conclusion.

I have said, however, what I want to say in this short clause stand part debate. I trust that I have dealt with the issues that were troubling the hon. Gentleman even though I might not have dealt with the detail. He is entitled to receive that detail and I will give it to him. I do not think that that should prevent anybody from voting on the principle of the clause.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Sitting suspended.

On resuming—