I am really not going to any more on this point.
Amendments 11 and 380 relate to the treatment of direct EU law for the purposes of the Human Rights Act 1998. I am grateful for the opportunity to discuss this point, which, as my right hon. and learned Friend the Member for Beaconsfield said, is related to his other concerns. The amendments concern the status of retained EU law, in this case specifically the status of retained direct EU legislation under clause 3 for the purpose of challenges under the Human Rights Act 1998.
Let me be clear from the outset that all legislation brought across will of course be susceptible to challenge under the HRA. Hon. Members will, however, understand that the remedies available under the Act differ for primary and subordinate legislation. It is therefore important that the Bill is absolutely clear on this point. Paragraph 19 of schedule 8 is clear. It sets out that this converted EU law is to be treated as primary legislation for the purposes of the 1998 Act, with the result that it will be open to the courts, if that legislation is challenged, to consider whether the legislation is compatible with rights under the European convention on human rights, and, if they conclude otherwise, to make a declaration of incompatibility under section 4 of the HRA.
The amendments, by contrast, would assign the status of subordinate legislation for the purposes of HRA challenges, meaning that a successful challenge could, as my right hon. and learned Friend the Member for Beaconsfield knows, result in a strike-down of the legislation. The Government considered this point very carefully before we introduced the Bill. We recognised the potential arguments that, for example, detailed and technical EU tertiary legislation is more akin to our domestic secondary legislation. We are also, of course, alive to the concerns that this law must be properly challengeable. We concluded on balance, however, that assigning primary status to converted law for these purposes was the better course for three principal reasons.
First, this law comes into our domestic statute book in a unique way, but fundamentally Parliament will have chosen to bring each and all of these pieces of legislation into our law by primary legislation, albeit indirectly through the Bill. Contrary to the position for subordinate legislation, there will have been no exercise of discretion by an individual Minister. In that sense, converted EU law is more akin to primary legislation.
Secondly, if the law could be struck down by the courts, we would risk undermining the certainty the Bill is seeking to provide. None of this legislation can be challenged in UK courts now and some of it has been on the statute book for decades. Opening it up to being struck down is an invitation to challenge law which has long been settled, and to refight the battles of the past in the hope that a different court will return a different verdict.