I am grateful for that shortish intervention. Essentially it raises the same point that the noble Lord, Lord Carlile, put to me and, without any disrespect, I give the same answer. I am focused, as a matter of principle, on what Section 19 does.
Amendment 2, which has already been referred to by my noble friend Lord Sandhurst, disregards Section 3 of the Human Rights Act 1998, which is a very odd section. Uniquely in our law, it requires that other Acts of Parliament be interpreted:
“So far as it is possible to do so”
in accordance with the convention rights. We do not do that in any other area of our law.
The case law under Section 3 is extremely complex. As has been referred to before, Sir Peter Gross set this out in his review of the Human Rights Act. I would be entirely content if I could be sure that the current law on what Section 3 does remains the law. What we have seen, however, when we look at Ullah, Al-Skeini or other cases, is that what Section 3 means and how it is interpreted by the courts has moved. In those circumstances, the Government are right to exclude Section 3 of the Human Rights Act from the Bill by way of its Clause 1(5).
6.30 pm
Finally, let me say a quick word about Amendment 4, which I will take with Amendment 84. I object to these amendments on a point of principle. We have a list of treaties that are not incorporated into our domestic law. The effect of this sort of drafting is incorporation by the back door. What Parliament will be saying is that anything in the Bill or Act has to be read subject to these treaties. Let us just have a debate; I cannot hear what the noble Baroness, Lady Chakrabarti, is saying, but I will give way if she wants to say it. If Parliament wants to incorporate treaties, it can do it, and those treaties become part of our domestic law. These treaties are not part of our domestic law. I do not understand there to be a Bill from anywhere in the House that makes them part of our domestic law. This sort of drafting makes them part of our domestic law by the back door and privileges them over Acts of Parliament. That is wrong in principle.
With great respect to my noble friend Lord Kirkhope of Harrogate, he referred to those who take a divided view between domestic and international law, but that is what we have done in this country since time immemorial. We are a dualist state. International treaties are not part of our domestic law. Of course we need to have regard to them, as I made very clear at the start of my remarks, but we should not incorporate them by the back door.
Amendment 84 is even worse, because it states:
“No provision … is to be interpreted or applied”
contrary to these treaties or
“authorising decisions or policies which would have this result”.
We legislate; the courts interpret. I suggest that the courts should assume that we do not deliberately intend to legislate contrary to our international obligations. That is similar to the principle of legality set out by Lord Hoffmann in the Simms case, but this amendment is wrong as a matter of constitutionality.
Finally, before I sit down, I will suggest an answer to the noble Viscount, Lord Hailsham, who asked why Clause 1(2) was in the Bill. I suspect it is in the Bill because, in this area of the law, as in the area of ouster clauses, for example, there has been something of an arms race between the courts and Parliament. Parliament says X, and the courts say, “Well, did Parliament really mean X? I think it might have meant Y”. Then Parliament says, “No, no, we really meant X”. I suspect we have these purpose clauses to make sure that, on any question of interpretation that comes before the court, it is
clear what Parliament was trying to do. Whether that is a good or bad way to legislate is a separate question, but that is an answer to the noble Viscount, Lord Hailsham. I was going to sit down, but I will give way.