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"(c) the Habeas Corpus Act 1816 (c. 100),
(d) section 7 of the Parliament Act 1911 (c. 13) (duration of Parliament),
(e) the Bill of Rights 1689 (1 Will & Mar. Sess. 2, c. 2),
(f) the Act of Settlement 1700 (c. 2),
(g) the House of Commons Disqualification Act 1975 (c. 25),
(h) the Life Peerages Act 1958 (c. 21), and
(i) the House of Lords Act 1999 (c. 34)"

The noble Baroness said: My Lords, we have raised this issue previously. The current drafting of the Bill allows the Government, by virtue of Clause 22(3)(j), to disapply or modify any enactment save the Human Rights Act.

The Government have changed their mind on the powers of the clause since it has arrived in your Lordships' House. At first, they argued that there was no need to exclude any Acts from the paragraph in question, and sent a strongly worded reply to the Joint Committee on Human Rights when the latter raised an objection to this enormous power. However, they have changed their mind regarding the Human Rights Act, and have decided that it does need protection, after all.

We are now asking the Government to do the same and protect the Acts outlined in my amendment. These are: the Habeas Corpus Act 1816; Section 7 of the Parliament Act 1911; the Bill of Rights 1689; the

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Act of Settlement 1700; the House of Commons Disqualification Act 1975; the Life Peerages Act 1958; and the House of Lords Act 1999.

We have tried to keep this list brief. It is certainly not as long as that suggested by the Joint Committee on Human Rights. However, we feel that the list we have proposed is sensible and adequate to protect from possible interference some of the most important legislation on the statute book.

These Acts have been around for so long it seems implausible that any government would ever wish to change them. If I may, I suggest that it would be wise for the Government to concede this point. There has been much discussion on the point, and it would bring peace of mind to many around your Lordships' House and beyond to know that these core Acts cannot be touched.

I very much appreciate the Minister writing to me following our debate on Report. However, as one who was called to the Bar some 27 years ago, I found her letter rather patronising. That said, let me respond to some of the points she made. I accept that no legislation is immune from change, which is why we have kept our list to the very core enactments that underpin our unwritten constitution. Notwithstanding the fact that the Minister has already conceded that we need to strengthen access to judicial review, and has sought to do so by bringing forward amendments on Report, we believe that it is important to go one step further.

We firmly believe that it is our duty, as Her Majesty's Opposition, to persuade the Minister that, given Clause 22(3)(j), we must safeguard those core enactments which protect the constitution of Parliament, the activities of Parliament and access to justice—in other words, our core freedoms and our democracy.

In her letter addressed to me regarding a similar amendment on Report, the Minister stated that the Government are convinced that the absence of an express power to amend constitutionally important legislation, coupled with the clear expression of the purposes for which regulations can be made and the safeguards set out in the Bill, ensure that substantive amendment to such legislation is not possible by way of emergency regulations. I am sorry, but I simply do not accept that as a convincing argument for standing back and allowing Clause 22(3)(j) to sit on the statute book without further safeguards.

In addition, in introducing an amendment on Report expressly to exempt the Human Rights Act from Clause 22(3)(j), the Minister stated that notwithstanding the Government's belief that it is not strictly necessary expressly to protect the Human Rights Act,


    "in the light of concerns expressed by civil liberties groups and in Parliament, the Government believe that an express provision to the effect that emergency regulations cannot disapply or modify any provision of the Human Rights Act would offer the certainty and reassurances that some seek".—[Official Report, 9/11/04; col. 867.]

I urge the Minister to accept our amendment. In so doing, she would be responding to the many who have expressed their alarm and serious disquiet with regard to the extraordinarily wide powers which this enabling legislation confers upon individuals in government.

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I was struck by the byline attached to the Home Office letterhead, which is:


    "Building a safe, just and tolerant society".

I suggest to the Minister that in proposing this amendment, we believe we are seeking to safeguard a safe and just society. I beg to move.

Lord Lester of Herne Hill: My Lords, I find this a curious amendment from the official Opposition, because it seeks to treat our system as if we are approximating towards a written constitution which guarantees basic civil and political rights to people of this country. My party and I strongly favour a written constitution similar to that which exists in every other European state and in most other Commonwealth countries. If that were done, the purpose that this amendment seeks to achieve would be accomplished in a proper constitutional way. Emergency powers could not be used in a way that violated basic constitutional rights.

However, as far as I am aware, that is not the position of members of the Conservative Party although, if they were true to their Burkeian traditions, they would actually move in that direction. What we have instead is a partial list of statutes, some much more important than others with omissions of others that are equally important. For example, we do not find the Magna Carta, the Claim of Right, the Act of Union in Scotland—or its modern counterpart the Scotland Act—or the Northern Ireland Act.

Instead, we have the Habeas Corpus Act which has been entirely superseded and made much more effective in practice by Article 5 of the European Convention on Human Rights which guarantees the right of liberty in a way that the Habeas Corpus Act 1816 failed to do. We have provisions about the Bill of Rights of 1688-89, most of which are either of no relevance or belong in a constitutional charter. The Act of Settlement is the same. I cannot for the life of me see why the Life Peerages Act should be treated as a great constitutional Act or, for that matter, the House of Lords Act.

Although I have more than sympathy with the need to protect our birthright—as it is quaintly described in the Act of Settlement:


    "the laws of England are the birthright of the people thereof"—

I believe in protecting that birthright by a new constitutional settlement. That would make us stronger in negotiating with the EU, give us a greater sense of national identity, codify the basic political and civil values of this country, protect the church and state and the separation of church and state and so forth. I do not believe that a shopping list of miscellaneous old statutes, some important and some less so, is the right way to go about it. Nor do I believe that it is necessary in order to accomplish the movers of the amendment's needs.

Therefore, I very much hope that the amendment will not be pressed to a Division and that the noble Baroness will persuade her colleagues so that the official Opposition joins the Liberal Democrats and, I hope, the Government in due course in favour of a modern, coherent written constitution.

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5.45 p.m.

Lord Peyton of Yeovil: My Lords, I rise to support my noble friend despite the observations of the noble Lord, Lord Lester. He may be right in saying that the list of measures could be improved and I do not doubt that my noble friend would be willing to consider that. However, what really matters is that there should be some important measures in the Bill. If the Government wish to add to them in another place, that would be fine.

I have always worried about this Bill as I remarked earlier this afternoon. It has an odour about it of casualness where personal liberty is concerned and I was only slightly comforted to hear the Minister, in that nice voice of hers, saying that the Government had been concerned all along to avoid large powers being used for wrong reasons. That helped me a little, but what worried me earlier was the unwillingness or inability of the noble Lord, Lord Bassam, to give any idea about what constitutes damage serious enough to bring into effect or make lively the powers conferred on Ministers by the Bill.

My concern remains and I am hopeful that the Minister will not just wave away the cogent arguments produced by my noble friend to see that really important traditional measures—whatever they may be, because I do not think that this list is in any way exclusive—that play a fundamental part in propping up the liberty of the subject are not lightly discarded by a Bill of this kind. If the Minister were to accept the amendment or even say that the Government would take it away and see what they could do with the Bill in another place, I would be very happy, but I am bound say that my suspicions were better founded than I originally thought if she waves aside the anxieties that have been expressed today.

I hope that the Minister will take no notice of the noble Lord, Lord Lester, who was rather cavalier in his treatment of personal liberties—too cavalier to support this amendment. I support my noble friend.


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