In her address today and I think at an earlier stage, the noble Baroness described the functioning of declarations of incompatibility in Section 4 of the Human Rights
Act 1998 as an elegant compromise. I freely agree that it is an elegant constitutional compromise, which ultimately reflects parliamentary sovereignty, which lies at the very heart of our processes and constitution.
As detailed in Committee, Section 4 of the Human Rights Act in relation to the system of declarations of incompatibility is designed to strike an appropriate compromise between scrutiny of human rights and parliamentary sovereignty. Section 4 does not oblige the Government to take any specific action as a result of a declaration of incompatibility, and Section 4(6) expressly does not allow a judicial ruling to prevent the operation and enforcement of legislation passed by Parliament.
The operation of the section is to afford the Government the opportunity to reflect on matters, to listen to concerns brought by the courts and to act upon them as they see fit. I do not consider it necessary to adopt the amendment which the noble Baroness has tabled and argued for. I do so purely on the basis that the history of the application of this section, in my view, respectfully, shows it to be working.
The noble Baroness, Lady D’Souza, tabled Amendment 47, seeking to undermine Section 4(6) of the Act by providing that a declaration of incompatibility results automatically in the legislation ceasing to have effect. It seeks to give such declarations a binding character, and, as I said a moment ago in relation to the noble Baroness’s point, that is contrary to what those provisions were designed to be and removes discretion or oversight as is currently afforded to the Government and Parliament as to what action would be most appropriate to take in the circumstances.
It has been the accepted practice since the introduction of the Human Rights Act for the Government to address such declarations either through primary legislation or by way of a remedial order. Again, given how well the declaration of incompatibility procedure is working and has worked in the past, I respectfully submit that there is no reason for us to innovate on that basis. These amendments are therefore not only unnecessary but inappropriate in their attempt to legislate for parliamentary procedure in this manner. The declaration of incompatibility procedure works well to strike the right balance, and there is no reason to upset it.
I was addressed on the subject of the remarks made by the Lord Chancellor to the Joint Committee on Human Rights. As your Lordships have said—it was predicted that I would refer to this again, and I will—the Lord Chancellor recently set out in his letter to the Joint Committee that while
“it is a fundamental tenet of modern human rights that they are universal and indivisible … it is legitimate to treat people differently in different circumstances”.
For example,
“a citizen may legitimately be treated differently, and have different legal rights from, a non-national”,
recognising that there is a difference between a citizen and a non-national. The convention,
“as interpreted by the case law of the ECtHR … recognises this principle”
in full.
“There is nothing in the … Bill that deprives any person of any of their human rights: in accordance with Article 1 of the ECHR, we shall continue to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention. What we can legitimately do, and what we are doing, is to draw legal distinctions between those with a legitimate right to be in this country, and those who have come to this country illegally”.
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As I say, the provisions in the Bill, while novel, are not without precedent. We are satisfied that the Bill can be implemented in line with the convention rights. I therefore ask noble Lords not to press their amendments.