I could not agree more with my right hon. Friend. In that context, “takes into account” is what the courts have to do with respect to the convention, but not necessarily to obey the Court. That is precisely what happened there.
In the House of Commons during the passage of the Human Rights Act, the Home Secretary Jack Straw made similar observations. The Government rejected giving the courts the power to set aside an Act of Parliament, which was being considered. This was a Labour Government rejecting giving the courts the power to set aside an Act of Parliament. He stated that this was because of
“the importance which the Government attaches to Parliamentary sovereignty”.
The White Paper at the time made that abundantly clear, even in respect of declarations of incompatibility by the courts, and furthermore made it clear that declarations of incompatibility would not necessarily lead to legislation.
I was glad to note, in principle, clause 1(5) regarding the application of section 3 of the Human Rights Act. In the context of parliamentary sovereignty, it is clear from the pre-eminent authorities that, in respect of section 3 of the Human Rights Act, any suggestion of a limitation of Parliament’s sovereign will would be permissible only to the extent that in doing so the courts give effect to the intention
“reasonably to be attributed to Parliament”
in enacting section 3. It must surely be clear to all of us, in the case of illegal immigration, that Parliament would never intend to condone illegality or criminality.
This analysis that I have put forward as to the interpretation of the Human Rights Act clearly requires further discussion with the Government. Furthermore, the pre-eminent authority also states that
“the Courts are thus not empowered to construe legislation compatibly with the convention at all costs”
and must not cross the constitutional boundaries, which would include not endorsing illegality.