I beg to move amendment No. 549, in page 194, line 33, at end add—

'(5) There must be reasonable grounds for believing that it is in the public interest having regard—

(a) to the benefit likely to accrue to the investigation if the material is obtained

(b) to the circumstances under which the person in possession of the material holds it.'.

With this we may discuss the following amendments: No. 554, in clause 342, page 199, line 5, at end insert—

'(d) that there are reasonable grounds for believing that it is in the public interest having regard to—

(i) the benefit likely to accrue to the investigation if the material is obtained;

(ii) the circumstances under which the person in possession of the material holds it.'.

No. 559, in clause 347, page 201, line 30, at end add—

'(4)There must be reasonable grounds for believing that it is in the public interest having regard to—

(a) the benefit likely to accrue to the investigation if the information is obtained;

(b) the circumstances under which the person in possession of the information holds it.'.

No. 562, in clause 360, page 208, line 31, at end add—

'(6)There must be reasonable grounds for believing that it is in the public interest having regard to—

(a) the benefit likely to accrue to the investigation if the information is obtained;

(b) the circumstances under which the person in possession of the information holds it.'.

The clause sets out the requirements for the making of a production order. They demand that certain ground rules should be observed. For instance, there must be reasonable grounds for suspecting that,

''in the case of a confiscation investigation, the person the application for the order specifies as being subject to the investigation has benefited from his criminal conduct''.

There must also be

''reasonable grounds for believing that the person the application specifies as appearing to be in possession or control of the material so specified is in possession or control of it.''

Those are serious powers. I am sure that the Minister would readily accept that, potentially, they involve a substantial interference with individual rights that are upheld under our law. For someone to knock on one's door, make demands and require answers to questions is an interference with the liberty of the subject that should be carried out only on good and sufficient grounds.

The Drug Trafficking Act 1994—the original legislation on the matter under discussion—contained public interest protection clauses identical to those that I wish the Bill to include. They are that there must be

''reasonable grounds for believing that it is in the public interest having regard to—

(i) the benefit likely to accrue to the investigation if the material is obtained;

(ii) the circumstances under which the person in possession of the material holds it.'.

In the explanatory notes, the Bill's draftsman informs us that because the Human Rights Act 1998

''requires a judge not to act in a way that is incompatible with Convention rights'', it is no longer necessary for the legislation to contain the public interest test, and that it has therefore been deleted. That is a major change from the way in which other relevant legislation has been framed.

I highlight that alteration because I am not persuaded that the two tests are identical. The public interest test that the earlier legislation required to be fulfilled is, by its nature, likely to be higher than the balancing act of proportionality that would have to made under human rights legislation.

Ever since the introduction of the Human Rights Act, I have been troubled by something that I regard as an unintended consequence. As the Committee may be aware, I was one of the few members of my party to show considerable understanding of the intentions behind the Human Rights Act 1998. However, since its introduction, which provided what I always believed would be a baseline—the safety net—on which the structures of justice would be built, I have been concerned because all too often, that baseline has been used as the norm. During that process, various safeguards that were previously regarded as absolutely normal under the law have suddenly been put in the dustbin because we have been assured that they are no longer necessary to ensure that our legislation is compatible with convention rights. That is why I thought it right to highlight the matter by reinserting the public interest provisions.

This is not a probing amendment. I am open to persuasion, but I shall need a lot of persuasion to believe that public interest provisions can safely be jettisoned because the Human Rights Act replaces them. Although I do not claim great expertise on that Act, it causes me considerable concern to see such measures discarded.

I draw the hon. Gentleman's attention to the front of the Bill, which states:

''In my view the provisions of the Proceeds of Crime Bill are compatible with the Convention rights.''

Surely each provision should be deemed to be so compatible rather than deleting other provisions, thereby relying on a backstop in case of any challenge.

I agree. My difficulty is that on several occasions since the passing of the Human Rights Act we have been told that, although different safeguards that were previously deemed important under English law are going out of the window, the new legislation is still compatible with the Human Rights Act. As the hon. Gentleman knows, people have expressed grave misgivings about the judicial systems of some countries that are signatories to the European convention on human rights. It had not crossed my mind that we were about to reduce ourselves to the lowest common denominator of compliance with the human rights convention, and it was to be the central pillar of our legal system. I have always thought that we should be doing rather better than that. Indeed, in the past and in many areas of our law, we have done considerably better than that.

An alternative analysis could be that through incorporation of the European convention on human rights, we have introduced substantive rights so that other previous protections are no longer necessary. How did the hon. Gentleman reach his analysis?

I have made the position clear: I said that I was open to persuasion by the Minister that the protections afforded under the Human Rights Act—in its text and in the way in which it has been interpreted—are such that the safeguards of the public

interest argument are no longer required. If the Minister can persuade me that protection under the Human Rights Act is greater than that provided by the public interest tests, I shall have no difficulty in accepting the clause. However, if he cannot do that, I want the Committee to consider why it was decided to remove the public interest requirements.

I shall now mention another matter that I should like to explore with the Committee, but to which I do not have an immediate answer. The test under the Human Rights Act may be slightly dissimilar to the public interest test, so it could be argued that the two protections should be included, because one complements the other, and they should be allowed to interact. I hope that the Committee can have a brief discussion of such matters, and the best thing now would be to give the Minister the opportunity to reply and give his officials' view of the background.

Subsection (4) should be read in the light of the preceding subsections in the clause. Is not the hon. Gentleman's argument too pernickety? It is clear if one reads the clause that a production order must be made on the grounds of public interest. Is that not inherent in the clause? If that were not the case, an application for a production order would not get past first base.

When I respond to interventions it is sometimes difficult to find my place in my notes. I have compared the clauses with the pre-existing provisions, and I may be wrong, but my recollection is that in the previous legislation the words ''substantial value'', as used in subsection (4), were married with the public interest test. I am now glancing at section 55 of the Drug Trafficking Act 1994, and can see that the two are put together there. Clause 335(4), which the hon. Gentleman rightly highlighted, is not a substitute for the public interest test contained in the 1994 Act. Section 55(4) of the 1994 Act states:

''(b) that there are reasonable grounds for suspecting that the material to which the application relates—

(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made; and

(ii) does not consist of or include items subject to legal privilege or excluded material; and

(c) that there are reasonable grounds for believing that it is in the public interest, having regard—

(i) to the benefit likely to accrue to the investigation if the material is obtained, and

(ii) to the circumstances under which the person in possession of the material holds it,

that the material should be produced or that access to it should be given.''

I have looked at the old legislation and I do not think that clause 335(4) alters my point. I accept that the Human Rights Act 1998 might alter the necessity for the subsection that I am trying to re-insert, but I should like to be persuaded of that.

I wonder whether one difference between the hon. Gentleman's formulation and the normal application of human rights law might be that, under his formulation—the historic formulation—

there have to be ''reasonable grounds'' for the judge to include certain matters, whereas under the human rights formulation, he would have to decide whether the benefit was proportionate to the intrusion.

The hon. Gentleman may be right, in which case he has made a good argument for not putting the provisions back in. He may wish to develop that in a contribution to the Committee. The best I can do now is listen to what the Minister—or the officials, through the Minister—have to say on the point. This is an important subject, and I do not want the safeguards that we have previously enjoyed to be reduced by the invocation of the Human Rights Act 1998, which I have frequently seen as only a fail-safe device.

The hon. Gentleman has raised an important point that deserves a full reply. If it were possible, he would probably exchange his earlier victory on a small point for a different victory on this more substantial point. My worry is the suggestion—if it is true; we will hear from the Minister in a minute, although judging by the notes, it may well be the case—that the protections afforded in previous legislation are not replicated in the Bill because there is an assumption that the Human Rights Act supplies the protection. That would be worrying because on the front of the Bill, as with all legislation these days, there is a statement that the provisions in the Bill are compatible with convention rights.

Each Bill that comes before the House should contain the necessary protections and compatibility with human rights legislation, rather than relying on a subsequent application of the Human Rights Act to remedy any defects in it. It is unfortunate if the Minister is proposing that that should be the case with the Bill. There is a point of principle: we cannot assume that if protections are afforded by other legislation, they need not be present in the Bill. That would mean that legislation brought before the House need not be compatible with human rights legislation, and we would have to rely on the backstop afterwards.

We have heard about the overlap between clauses 325 and 331, and the reasons why that is necessary. The Minister accepted that there was duplication, and made a convincing case that both clauses were needed, as belt and braces. It is also important to have a belt-and-braces approach here, to ensure that that we still have the protection afforded in previous legislation, to which the hon. Member for Beaconsfield (Mr. Grieve) referred, as well as the protection under the Human Rights Act. Each Bill should be self-contained and compatible with human rights legislation. The protections that would be afforded by the amendment may not be exactly the same as those afforded by the Human Rights Act.

Theoretically, a future Government could repeal the Human Rights Act and withdraw from the convention. Many of the right hon. and hon. Friends of the hon. Member for Beaconsfield would wish to go down that road. [Interruption.] I accept that the hon. Gentleman himself would not want that, but some of his colleagues would. It would be unfortunate to rely

on the presence of the Human Rights Act as a backstop to fill the holes in legislation, rather than putting safeguards in the Bill. If the Human Rights Act were repealed, individual Acts would not contain the safeguards that hon. Members want. That is a further reason why a belt-and-braces approach is important.

If the Minister does not dispute the amendment and believes that the conditions that it sets out are appropriate—as they were in previous legislation—there is no reason why they should not be included in the Bill. If there is an overlap with human rights legislation, so what? What is the problem with that? It is better to have proper safeguards in each Bill, rather than allowing the opening of a possible lacuna that could present difficulties later. I hope that the Minister will consider the amendment.

I am glad that the hon. Member for Beaconsfield has raised this important issue, although I am struggling to follow some of the arguments of the hon. Member for Lewes (Norman Baker) in support of the amendment.

The amendment would insert a provision that is already in existing legislation. It replicates section 55(4)(c) of the Drug Trafficking Act 1994, which deals with production orders. I understand the worries that lie behind the amendment, but I assure the Committee that its effect is already achieved in the Bill. The public interest test in relation to the investigation orders will be retained, and will apply to the new orders. That is because the Human Rights Act 1998 requires that a judge must not act in a way that is incompatible with convention rights. For example, an appropriate officer must satisfy a judge that any infringement of, say, a person's right to privacy under article 8 of the convention is proportionate to the benefit to be gained from making an order. As the Human Rights Act is now enshrined in our domestic law, there is no need to replicate its provisions and its effect in new legislation. We therefore think it unnecessary to retain the current public interest statement.

The issue goes wider than the Bill. We believe that wider and undesirable implications would flow from the amendment. It would suggest that whenever a human rights issue arises in legislation, we need to specify a test in the legislation, rather than relying on the Human Rights Act. That is the reverse of the argument of the hon. Member for Lewes. Inserting such a provision at every relevant point in legislation would be logistically difficult to achieve comprehensively, and would result in casting uncertainty on any legislation in which a specific human rights provision does not appear.

As a matter of policy, the Government are content that the Human Rights Act achieves throughout the statute book what the hon. Gentleman is trying to achieve in the Bill through the amendment. Judges are already legally bound not to act in a way that is incompatible with convention rights. That, too, is the reverse of the argument advanced by the hon. Member for Lewes.

In the Bill, as in all legislation when it is appropriate that such a statement be made, we have made a commitment that it is compatible with the Human

Rights Act. We can do nothing in legislation to prevent, in every imaginable circumstance, someone from trying to use the powers in a way that is incompatible with the Human Rights Act. Obviously, such action would need to be challenged, but to suggest that we need to cover every circumstance, wherever it might arise, is more likely to lead to the sort of lacunae that the hon. Gentleman suggests that we might be opening up.

The hon. Member for Beaconsfield asked whether I could assure him that the protection given under the Human Rights Act was greater than that given by the current public interest statement. I do not suggest that it is, but we see no discernible difference between the protection given under the Human Rights Act and that given by the public interest statement. The balancing that will be required in making decisions about proportionality will be almost exactly the same as would be required under the public interest test.

We believe that the circumstances are covered, and that the way to ensure that they are covered comprehensively is to accept that the Human Rights Act applies to all our legislation, and statements appear on the front of Bills to that effect. To move away from that presents the danger of doing exactly the reverse of what the hon. Member for Lewes is arguing.

The Minister seems to be saying that the Bill as drafted is compatible with human rights legislation only in so far as a separate measure exists to govern it, and that in itself, as a self-contained measure, it is not compatible with human rights legislation. The safeguards that have hitherto been provided in legislation, which he says would be difficult to insert—although we seem to have managed since time immemorial to insert them—are now being deleted from legislation.

Provisions such as those that the hon. Member for Beaconsfield has referred to are now being deleted. This an important philosophical point. The Minister says that as a self-contained piece of legislation, the Bill is not compatible with human rights—that it is compatible only if a further piece of legislation, external to it, is applied.

How am I saying that? Is there not a statement on the front of the Bill stating that the provisions are, in our opinion, compatible with human rights legislation? In what way am I suggesting that that is not so? The hon. Gentleman is effectively suggesting that I am saying that the statement on the front of the Bill is incorrect. I am not saying that at all, and I do not understand his logic.

I shall try again. The Minister seems to be arguing that it is not necessary to insert in legislation the safeguards that were hitherto there—and which, in the absence of the Human Rights Act, the Government would presumably have inserted in this Bill, too. He says that it is not necessary to insert those safeguards because of the existence of a further piece of legislation external to the Bill—the Human Rights Act—which, he believes, in the absence of safeguards in this Bill, will provide the necessary

protection. If that is what the Minister is saying, the statement on the front of the Bill is clearly inaccurate. The test being applied to compatibility is contained not in pages 1 to 284 of this Bill alone, but in pages 1 to 284 of this Bill in conjunction with the Human Rights Act.

I do not see the point. We have incorporated the Human Rights Act. All our judicial proceedings are required to be compatible, and there is a statement on the front of the Bill that it is compatible. Therefore the safeguards are in both this individual legislation and the incorporation that has taken place. It is clear that the production order cannot be issued in breach of the European convention on human rights. I honestly do not understand the hon. Gentleman's point.

I support the Minister; he has made a persuasive case. As someone who spoke, powerfully, I hope, in favour of the Human Rights Act on its Second Reading—the hon. Member for Beaconsfield also contributed to that debate— I believe that the Minister is right. The Human Rights Act for which I voted is one of comprehensive application, designed to enable litigants in the United Kingdom to take full advantage of the substantive protections in our courts, without having to go to Strasbourg. It meant that thereafter we would not have to cherry-pick various statutory applications of human rights protections, because we had already voted for the greater substantive protection to come in from Europe.

It would be positively dangerous to go down the route advocated by the hon. Member for Lewes—to ask each Government in respect of each piece of legislation that might impact on any of the substantive rights protected by the Human Rights Act to set out different tests, which the courts could then interpret differently. The whole point of the Human Rights Act protections—which have comprehensive application according to the facts of each case by virtue of the test of proportionality—is that the court can decide the appropriate protection in each case.

In this case, the protection afforded by the Human Rights Act may well be better, bigger and more substantive than the protection afforded by the old statutory formulation. The Minister said that he could not guarantee that, and neither can I, but it is qualitatively different. Under the formulation in previous legislation, which Conservative Members, supported by the Liberals, believe should be reproduced, the judge would have to have no more than reasonable grounds for believing that there might be some proportionate effect. Under the formulation more normally applied in human rights law, as summarised in the explanatory notes, judges under the Human Rights Act would have to decide for themselves whether there was proportionality.

I am not sure whether I agree. Presumably the judiciary would have had to interpret the existing legislation, which would include the caveat about the public interest. I would have expected that in those circumstances, the judiciary would initially examine what the statute said, consider the public interest, and then consider whether, notwithstanding the fact that the public interest test was satisfied, the criteria of the Human Rights Act were fulfilled. If there were any incompatibility between them, the Human Rights Act would take precedence.

I acknowledge that there might be an argument for claiming that the amendment would add an excessive, extra and unnecessary test to the system, but I fail to understand how it could be claimed that that addition would defeat the Human Rights Act in any way.

Although I have some sympathy for the hon. Gentleman's point of view, it offers a less desirable approach, as it invites Parliament to try to specify, through different formulations of words and phrases, the appropriate protections for each potential breach of a substantive human right. He might think that appropriate, but I do not. His approach presumes that hon. Members can imagine all those breaches, and all the different impacts that they might have on individuals, and that we can then define the appropriate tests to meet all the possible circumstances, whenever they arise, and whenever they may go before a court.

The alternative approach acknowledges that it is not Parliament's job to do that. Parliament has already decided to allow the judges to develop their own test, according to the binding parameters of European convention law.

Even in the old days, one could have enjoyed the advantage of those substantive human rights protections by going to Strasbourg, but since the introduction of the Human Rights Act, people who wish to enjoy that advantage no longer have to go to Strasbourg, wait five years and spend £40,000. They can enjoy it here and now. That is not only in conformity with the Bill that I voted for—and which, I believe, the hon. Member for Beaconsfield spoke in favour of but did not vote for. It is also the proper application of that Bill, and it is the right way to proceed if we are to develop real human rights protections in this country.

My argument might be wrong, as I am speaking intuitively after considering the matter only briefly, but the Minister's case appears to be powerful.

I have not heard all the arguments—but why should I let that stop me from contributing to the debate?

I want to make a general point about application. The Human Rights Act has to be read into all legislation, regardless of whether it was passed before or after the enactment of that legislation. However, those who draft legislation after its enactment should consider whether it is good enough simply to draft it in broad terms and then say, ''We don't have to worry

about the detail, because the Human Rights Act implies it anyway.'' If they did that, the details of the law would not be disclosed to many members of the public, because very few people have mastered the Human Rights Act, and if someone wanted to be sure about a detail of law, it is likely that, at the very best, they would merely take a look at the relevant piece of legislation.

With regard to the public interest, therefore, it would be preferable if the Human Rights Act tests implied in each section of future legislation were specified. That would also have the advantage of being foolproof, because even if a draftsman who was trying to put the Human Rights Act into a piece of legislation were inadvertently to narrow its ambit, one would then fall back on the Human Rights Act itself, and that would widen it again, so that the statutory provisions were consistent with the Act. I do not disagree with the Minister's argument, but I take this opportunity to ring a bell of caution about new legislation that fails to follow that preferable course of action.

This has been an interesting discussion, and I am conscious of the potential shortcomings of amending the Bill as I have proposed, but the issue still troubles me. If the Government were to adopt the hon. Lady's approach, there would be a good reason—because there would be something in the Bill—why I should not be worried about the disappearance of the old statutory protection. I shall press the amendment to a Division, not because I think that I will succeed, but because it is important to flag up the issue. It may provide a stimulus to the Government to think further, possibly on Report, about this and other legislation. This is an important issue.

As the hon. Gentleman intends to press the matter to a Division, will he tell us whether there is a difficulty in any case law under the old legislation that would be addressed by the amendment? I know that he has ''Archbold'' with him, and it would be helpful if he could refer to a case that might be decided differently if the amendment were not successful.

Reading chunks of ''Archbold'' to the Committee may not be the most rewarding of activities. I have not looked at the case law, but I am fairly sure that cases have turned on that issue. I cannot immediately see an ''Archbold'' footnote that might assist the Committee, although there might be one on page 26. If I find one I shall tell the hon. Gentleman about it. I do not see the harm in pressing the amendment to a Division.

As for my exchange with the hon. Member for Wellingborough, in view of the primacy of the Human Rights Act, I do not see that reinserting the public interest provision in the Bill would have any downside for civil liberties. In so far as that is insufficient or incompatible with the Human Rights Act, the Act will triumph—but the provision may provide better protection than the Human Rights Act, and if it does, the court will interpret that. The fact that the Minister

has, quite properly, told the Committee that he cannot vouch for the identical nature of the two protections reinforces my view.

There is one worry that I have particularly in mind. If, as the hon. Gentleman recommends, there is a statutory formulation—and the Minister certifies that it is compatible with the Human Rights Act—the courts may be reluctant to go beyond that particular statutory test to find greater protection.

I do not think that that can be right. Under the Drug Trafficking Act 1994 a person can go before the judge and ask for the public interest test. The judge may refuse, and the defendant can say, ''There is also the proportionality test, and my argument is that it goes further.'' That could happen today without any interference as a result of those words being put back into the statute, and I therefore cannot see the disadvantage. The only possible question is whether we are making too big a meal of the issue. I am prepared to accept that that is a valid argument, but on balance, I do not think that it is such a big meal that I am not prepared to try to eat it.

I support the hon. Gentleman. He is not making too big a meal of this important point. What worries me about the Government's response is that they are arguing that because the Human Rights Act exists, there is now less need to put safeguards in legislation. Therefore, in a way, legislation will become less compatible with human rights than it was before.

I sympathise with everything that the hon. Gentleman has said—[Interruption.]. The hon. Member for Wrexham (Ian Lucas) wishes to intervene.

In the interests of clarity, and in the interests of the general public, is it not better to have a single test of general application, rather than having a two-stage test of the type that the hon. Gentleman envisages?

That is a big point, and one to which it may be difficult to do justice during our proceedings. When I participated in the debates on the Human Rights Act, my let-out clause—for I did not vote for it—was the Henry VIII clauses, which I did not like. Interestingly, they come close to the relationship between the judiciary and Parliament. We had many discussions about how the legislation would apply. I had always accepted that the Act, a little like our membership of the European Union—I am not saying that there is an equivalence—was along the lines of Lord Denning's words when he referred to the tide that comes up our rivers and creeks, in that it had primacy, unless specifically excluded.

Nevertheless, that is not a good reason why Parliament should suddenly wash its hands—and its brains—of the checks and balances under other legislation that it considers should be in place to safeguard the rights of the individual. If it creates safeguards that are greater than those under the Human Rights Act, which is easy to do, I regard that as positive action to take, while if it places lesser

safeguards in Bills, those in the Act will kick in, to emphasise the primacy of the convention and our need to observe it. That is how I thought we would proceed, and it has come as a slight surprise that, in this Bill and others, it has been vacuously said, ''Oh well, the Human Rights Act deals with such matters, so we need not concern ourselves about them any more.''

As the clause stands, are we not in the same position? The Government have introduced certain safeguards that may not cover every eventuality, but that has been done in the context of the human rights legislation. If we add other safeguards under the Bill, we will not necessarily cover every eventuality, and as the hon. Gentleman said, we will always be reliant on the Human Rights Act as a backstop. We have nothing that takes us further forward.

Back in 1994—I suppose that the hon. Gentleman would describe that period as the bad old days of authoritarian and illiberal Conservative government—those who drafted the Drug Trafficking Act 1994 were conscious that it constituted a considerable infringement of human rights. They were worried about it. The convention existed then, and there was always the possibility of taking such issues to Strasbourg, but it is noteworthy that, when drafting the orders for production, the draftsmen—presumably acting on the policy directive of authoritarian Conservative Ministers who were only too happy to grind the poor citizen into the dust—put in a considerable range of tests and safeguards on when production should be ordered, given the unusual nature of the legislation.

One of those safeguards was the issue of public interest balanced against other matters that had to be taken into consideration. It seemed that someone was whispering into the ears of those authoritarian Ministers, saying, ''Remember the poor, downtrodden people who may be affected by the legislation.'' I, being a good Conservative—with a small ''c'', as well as a big ''C''—am loth to depart from that.

I am not sure that the hon. Gentleman is a good historian, even if he is a good Conservative. I always thought that the high tide of the authoritarianism that he describes occurred about 1983 to 1989, rather than 1994. It had come slightly off the boil by then, perhaps for internal reasons in the Conservative party.

Two separate arguments seem to be involved. If Parliament wanted to give additional protection to a measure, over and above that provided by the ECHR, we are free to do that, and we would say so. However, the hon. Gentleman and the hon. Member for Lewes seem to be saying that, even when the intention is to go no further than the ECHR, and despite the incorporation of the ECHR and the comprehensive

way in which that legislation works, we must name individual instances not only in every Bill but in every clause.

I do not know what the hon. Gentleman is trying to achieve. Is it additional rights? If the policy objective is to give additional rights, we are, as I said, free to do that. Is he trying to create a total mess with our legislation, and a lawyers' playground, in which people apply two different sets of thinking subsequently, and can mess around and charge for so doing?

I hope that the Minister will not take this unkindly. I can promise him that the incorporation of the ECHR into English law has created a lawyers' playground mark 1—and big time. One of the reasons is that it introduced—I do not disagree with this, but criticisms were correctly made when it was incorporated—a series of concepts in a fairly broadly written convention that is subject to judicial interpretation over the years and capable of being evolved by judicial interpretation and gives infinite scope for lawyers to present detailed arguments. Indeed, the Prime Minister's wife—this is not a criticism—has made a career of doing exactly that, often to the detriment of the Government headed by her husband. Many other lawyers, too, some of whom may be sitting in this Room, have been quite successful in that field.

That is all good stuff, but what is the hon. Gentleman trying to achieve? Is he suggesting a higher test for production orders? If so, that is a matter of policy. I do not believe that a lower test applies. Is he, as I can only imagine, suggesting that we should duplicate the provisions in every case for which we want the test to be the same?

I am trying to do two things. I listened carefully to the Minister's comments. He was unable—this is not a criticism; indeed, I am grateful for his candour—to give me the assurance that the two exactly dovetail into each other such that further protections could not be provided by the public interest test that might not be covered under the ECHR. First, therefore, I am loth to get rid of a possible safeguard in such circumstances when I am not persuaded of its downside.

Secondly, I accept that—this is a more difficult argument—on the whole, if saving provisions narrow a power that has been specified in a measure, for the sake of clarity it is always much more desirable for that to appear in the Bill as Parliament's intention, even if the option remains open for the individual to go to court—as it would, because of human rights compatibility—in order to test whether Parliament's intention, however laudable, really complies with the evolving corpus of judicial decisions under the Human Rights Act. That was exactly what I thought that the Human Rights Act would do. The difference was that that would be allowed in our courts rather than the poor person having to go to Strasbourg to get his redress. That is what I would like to happen.

As an issue of principle, I do not like Parliament to abdicate safeguards, with the Minister and his officials saying, ''It's all right, you can leave that to the Human

Rights Act. We've looked at that and the convention, and there doesn't seem to be an incompatibility.'' There have been several instances in which Ministers have been only too happy to pop their imprimatur on the front of legislation, but subsequently serious doubts have arisen about its compatibility. That does not apply to the Bill, but it is a point of principle.

Mr. Hawkins rose—

Order. Before the hon. Gentleman intervenes, I advise the Committee that we are repeating a lot of points. I want new initiatives, and I hope that we will get them, because keep going around the same circuit.

Following your helpful ruling, Mr. O'Brien, I hope that my contribution extends the point.

The Minister said that it is unnecessary to have other safeguards, and my hon. Friend the Member for Beaconsfield pointed out that there have been several occasions when Ministers have given blithe expressions of confidence that legislation is compatible with the Human Rights Act 1998.

Do my hon. Friends agree that a classic example of that happened during consideration of the recent Anti-terrorism, Crime and Security Bill? The Home Secretary was more or less forced to withdraw huge chunks of it because he had to accept human rights concerns expressed in both Houses, especially by Conservatives and by my hon. Friend the Member for West Dorset (Mr. Letwin), the shadow Home Secretary, in particular.

As my hon. Friend the Member for Beaconsfield said, a further valid point is that many lawyers are pursuing human rights points in the courts. I expressed such worries when I was shadow spokesman for the Lord Chancellor's Department and I said that the huge cost of the Human Rights Act was greatly underestimated.

My hon. Friend is correct. His point about the Anti-terrorism, Crime and Security Bill is especially pertinent. There are further examples. The House pushed through anti-terrorism legislation after the Omagh bombing that, mercifully, would never be used, but that would not stand up for five minutes to the scrutiny of the Human Rights Act, although the stamp is on its front cover. That legislation caused me great worry when it was introduced. It enjoyed great cross-party support, but I did not like it.

When the hon. Gentleman agreed to this morning's programme motion, was that to allow us to discuss substantive points, or to continue a political polemic?

I was almost on the point of sitting down about 15 minutes ago. There have been several interventions, each of which has called for a response. A feature of the Committee has been a willingness to cross-examine hon. Members who make points, which is very healthy. I am sorry if I have taken longer than I wished, but I do not want to exclude anyone who

wishes to speak. I shall give way to the hon. Member for Lewes, and I hope that we can then bring our discussion to a conclusion. I have simply tried to answer points that have been raised.

I do not think that this is political polemic. There may be disagreement, but this is not polemic. We are discussing an important issue, and I had difficulty with the Minister's response.

Will the hon. Member for Beaconsfield give me guidance? There is a suggestion that the hon. Member for Redcar (Vera Baird) and I, as members of the Joint Committee on Human Rights, appear to have no function. When the Bill comes before us, we are not expected to examine each clause and decide whether it is compatible, but say, ''The Human Rights Act exists. We can confirm that it still exists, so we'll tick off the Bill and go to the next item on the agenda.'' Every Bill has to be self-contained. That is what the Joint Committee does: it examines each Bill's provisions, it does not automatically say, ''Another piece of legislation exists, and therefore it is okay.''

I agree entirely with the hon. Gentleman. The Joint Committee will clearly play an important role in how our legislation develops. Parliament should not abdicate responsibility for what it wants to a piece of legislation that is subject to judicial interpretation, which by its very nature—and I do not criticise it—is quite nebulous.

I do not want to take up any more of the Committee's time. I shall press the amendment to a Division as a matter of principle. I am not satisfied that there are no good advantages to be gained by incorporating the provision, which was included in previous legislation, into the Bill.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 13.

Question accordingly negatived.

Clause 335 ordered to stand part of the Bill.

Clause 336 ordered to stand part of the Bill.