My Lords, all of us lawyers can tell war stories about cases that we have been involved in or that we remember, but the first test of the declaration of incompatibility happened after the introduction of the Human Rights Act, when 9/11 had happened and we too were concerned with national security. We entered into a process of arresting people—detention without trial. It was a shameful thing at that time, and the case worked its way through the courts, which said that this is not compatible not only with our respect for due process and the rule of law but with the human rights protections under our new legislation. The Supreme Court—actually it was the committee of the House of Lords at that time—in the case of A and others v Secretary of State decided that this was indeed in contravention of the Human Rights Act. It spoke about how foreign nationals in particular were being gathered together in detention. There were issues about creating hierarchies and about detention without due process. As a result, a declaration of incompatibility was made.

It is important for people to know that what happened then was that the Government of the day—it happened to be a Labour Government—respected the court’s decision. That is the concern of some of us now: there seems to be less respect for court decisions. That worries us. In the ordinary way, if our Supreme Court were to make a declaration of incompatibility, one would expect a Government to do as the Labour Government did at that time, which was to look for ways in which they could introduce law that was not discriminatory to those to whom it applied and that introduced a certain level of oversight and due process. Nobody would know that better than my colleagues on the Cross Benches who, as lawyers then, sat in special capacities to oversee that sort of legislation.

It was a very interesting moment, because it was about declarations of incompatibility and how Governments should respect courts that are saying, “This is incompatible”. It concerns us that there seems to be a rising level of disrespect for the rule of law—it is happening not just in this country but elsewhere—but we should be better than other places, because that is deeply embedded in our tradition and is so important to us.

In answer to what was said by the noble Lord, Lord Murray, that somehow the European Convention on Human Rights was invoked even before the Human Rights Act, in fact it took six years to take cases from start to finish to get to the European court on matters, and that is not what we wanted. That is what the Human Rights Act was all about: bringing human rights home. That is what it did, and it is something that we should all be proud of.