Identity Documents Bill

Lord Pannick Excerpts

Tuesday 21st December 2010 Lords Chamber

[Baroness O'Cathain]

No, I am not. Please listen to what I have said. The self-righteousness coming from the other side is quite sickening.

I abstained in the debate because I felt that there was a moral justification for the money to be repaid to the people who were conned by those opposite into spending money on ID cards. There is no point in denying that by trying to be the people who support everybody out there and by adopting a high moral tone and self-righteousness. Rubbish.

[Lord Pannick]

My Lords, I hope that I will not be accused of being self-righteous if I say that I share the concerns that have been expressed by the noble Lords, Lord Hunt of Kings Heath and Lord Howarth of Newport.

Behind the moral issue and the issue of principle, I think that there is a legal issue. The Minister will recall, as mentioned by the noble Lord, Lord Hunt of Kings Heath, that it was suggested to her on the previous occasion when we debated the matter that she might wish to take specific advice from the law officers as to whether the Government’s approach is consistent with this country’s obligations under the European Convention on Human Rights. The concern, which is very simple indeed, is that the Bill removes a property right without any compensation, in breach of Article 1 of the First Protocol to the ECHR and, therefore, that the amendment that noble Lords approved was not only wise but necessary.

When we last debated this matter, the Minister’s answer was that the ID card remained the property of the Government and therefore there was no difficulty. With respect, however, that is no answer at all. It is very well established in the case law of the European Court of Human Rights—indeed, it is common sense—that, when the Government grant a licence or an authorisation to do something, that of itself establishes a property right. If that licence or that authorisation is then removed by the Government, contrary to the expectation that has been created, the Government have a duty, other than in the most exceptional circumstances, to pay compensation. That legal obligation is precisely consistent with the substance of our debate on the previous occasion and with the amendment that was approved by noble Lords.

I therefore join the noble Lord, Lord Hunt of Kings Heath, in asking the Minister to explain whether she has indeed taken specific advice from the law officers, to deal in more detail with the substance of this concern and to explain to noble Lords how it can be that what the Government intend to do is consistent with this country’s international obligations.

[Lord Campbell of Alloway]

If there is a breach of human rights, of course that is a worry, but it is the job of the Court of Human Rights to put it right. If we are concerned with a matter of principle—I understand what the noble Lord is saying—surely the policy of a previous Government cannot be constitutionally binding on the next Government. Whether it is unfortunate and whether there is criticism, the policy of this Government was in fact accepted by this House. If we have got it wrong and the noble Lord is right, that will not affect the validity of this piece of legislation in this country. However, if an application is later made to the Court of Human Rights, it may decide that the point of principle here is that this Government—I do not always agree with them or, indeed, with any Government—have the entitlement in constitutional principle to reject the advice of the previous Government.

[Lord Pannick]

I have, of course, enormous respect for the knowledge and judgment of the noble Lord, Lord Campbell of Alloway, but on this occasion, with respect, I do not agree with his opinion. It is part of the law of this country that the Minister, like all other Ministers, has a positive duty under the Human Rights Act to confirm to this House and the other place that the legislation that the Government are bringing forward is consistent with the European Convention on Human Rights. That is the law of this country. I respectfully ask the noble Baroness to tell this House, consistent with her duty under the law of this land, why she is confident—if she is—that this proposal is consistent with our international obligations.

[Baroness Hamwee]

On all previous occasions when we discussed this matter, I was honest with the House that I had some difficulty with it, but is what was the substantive issue then in fact the issue for today? I have been waiting to hear some comment on the Commons reason for disagreeing with this House’s amendment. The noble Lord, Lord Howarth of Newport, addressed the issue of financial privilege and suggested that we should not accept it. However—and this is an entirely personal view—I think that this may well be an issue that goes to heart of the relationship between the two Houses. I have grave doubts as to whether we should tackle that convention on the back of this Bill. This is an important, stand-alone issue, but it is not one that we should seek to overturn in this manner.

--- Later in debate ---

[Baroness Neville-Jones]

I repeat to the House that the Government believe that this legislation is compatible with the European Convention on Human Rights. I do not think that I am obliged to say whether or not we have consulted the law officers, nor to say what legal advice we have taken. However, we believe it to be compatible with the convention. As we take our duties seriously, that is a clear statement to the House that we believe that we are acting lawfully.

[Lord Pannick]

Does the Minister appreciate that the question is not simply whether or not the Government are satisfied that the Bill that they are putting forward is compatible with the convention? Will she address the point that on the previous occasion, and in the debate today, a specific concern has been raised about why it is feared that the Government’s position is incompatible with the convention? That is why it was suggested to the Minister on the previous occasion that specific advice should be taken from the law officers on this precise point. I am sure that it would assist the House if the Minister were at least able to say whether she went back to the law officers in the light of the debate on the previous occasion, and in the light of the specific concern that was raised, in order to assure herself and noble Lords that that point had been considered and the Government were satisfied with regard to it.

[Baroness Neville-Jones]

I do not think that I am able to enlighten the House any further on the question of taking legal advice. We believe our actions to be lawful.

--- Later in debate ---

[Baroness Neville-Jones]

This is a matter for the House, but I should like to answer the other points that have been made.

[Lord Pannick]

I am very grateful to the noble Baroness but she really has not answered the substance of the concern. I suggest that the only way she can do that is by telling the House whether or not the law officers have been consulted. It is a matter for the House what step to take but I suggest to the noble Baroness that the appropriate step for it to take is to adjourn further consideration of this matter until she is able at least to assure it that the concerns that have been expressed by a number of noble Lords have been considered by the law officers. I entirely accept that there is no obligation on the Government to tell the House what the advice of law officers is but it must be assured that they have been consulted on this matter. Therefore, I ask the noble Baroness to accept that the appropriate step is for further consideration to be adjourned.

[Earl Attlee]

I think that it is appropriate for the Minister to carry on with the rest of her speech, answer the other questions that noble Lords have asked and wait to see whether further inspiration arrives.