§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Sharpies.]
§ 10.19 p.m.
§ Mr. Anthony Kershaw (Stroud)I wish to call attention to the Convention for the Protection of Human Rights and Fundamental Freedoms, to which Her Majesty's Government are a signatory and which they have ratified, and which came into force in 1953. Fourteen of the fifteen States of the Council of Europe have ratified the Convention, the Court of Human Rights has been established and is hearing its first case, and, therefore, what may have, at one time, seemed a pious if ringing statement of platitudes has become and will continue to be a matter also of practical importance.
This Convention has been applied not only to the Metropolitan countries, but also to most overseas territories associated with the signatory nations. It may well be thought that this extension to the overseas territories was injudicious in the first place, because it is certainly for argument whether the basic personal freedoms and political rights in an emerging territory have the same characteristics as those rights in an ancient and settled community. In a primitive territory subject to the alarums and excursions of such a condition, the value of peace and order may well have to be put higher in the scale of values than is necessary elsewhere. However that may be, the Convention has been extended to overseas territories.
The acceptance of the jurisdiction of the Commission of Human Rights is obligatory upon States, but acceptance by the signatories of the right of individual petition is optional. Nevertheless, nine of the 14 signatory States have accepted it and one more is in process of doing so. The exceptions are Italy, Greece, Turkey and ourselves. Just as the acceptance of the right of individual petition might be thought inappropriate to overseas territories, so also that right may be thought unnecessary for ourselves here at home, where our liberties are buttressed by long habit and by our common law.
I am aware that Her Majesty's Government have several times said that they 174 are unwilling to accept this right. I can understand why they should so refuse. One reason I have given myself, namely, that for some territories in some stages of their development, so refined a definition of liberties is hardly appropriate.
There is a story which is well known to lawyers and so well known to you, Mr. Speaker, that I apologise for telling it again, but my hon. Friend the Joint Under-Secretary of State, who was educated at Harrow, may not have the advantage of knowing it quite so well. It is the story about a former Member of this House who was pleading in an Irish court. The judge said to him, "But, Mr. Healy, has your client never heard of the maxim 'Sic utere tuo, at alienum non laedas'?" Mr. Healy replied, "Your honour, in the mountain village from which my client comes, seldom a day passes when that maxim is not one of the main topics of conversation."
Another reason, perhaps, is that Her Majesty's Government fear that a flood of fatuous or insincere applications would roll in upon them, causing them extra work and adverse publicity. Why, so to speak, put ourselves in the dock to be mocked at by sinners greater than ourselves who are not willing themselves to run the gauntlet of criticism?
I am, however, able to inform my hon. Friend the Joint Under-Secretary that of the nearly 600 cases which the Human Rights Commission of the Council of Europe has so far received, in only 14 cases has the Commission had to trouble the Government complained of by asking them for comments on the admissibility of the case concerned. It has been able to reject the remainder without reference to that Government. Three cases only have been declared admissible and in only two cases has the matter been referred to the Court by the Commission, the States concerned having ratified the Convention.
Another reason why Her Majesty's Government might look askance at the right of individual petition is the fear lest it should be necessary constantly to derogate from the Convention in respect of the right when disturbed conditions arise in any Colony. But would the necessity for derogation be so embarrassing? As it is, Her Majesty's Government, of either political complexion, have derogated in respect of Article 5 of the Convention on ten occasions without, as far 175 as I am aware, further exacerbating the situation. It is not the legal steps taken, but the fact that the disturbances exist, which attracts attention and requires political solution.
I do not under-estimate the special legal difficulties which our history and our Constitution provide for us in allowing that the Crown should be sued by a national of this country at the behest of a foreign country. I can, however, think of one or two reasons why Her Majesty's Government should now consider whether they should adhere to the right of individual petition.
In the first place, it goes without saying that Her Majesty's Government not only accept but revere the principles of the Convention, which, after all, only codify the fundamental freedoms which we have secured for ourselves and which now we pass on to those people for whose destiny we have some measure of responsibility. To reject for others what we value for ourselves can, obviously, give rise to misunderstanding.
The Government have made more than clear their regard for this Convention. It was as a result of the Government's recommendations that most of the provisions of the Convention have been included in the text of the constitution of Nigeria. These clauses have also been written into the draft constitution for Cyprus. No doubt as more and more territories not homogeneous in race and language emerge as independent States, these clauses will be included in their constitutions as well. States outside those for which my hon. Friend has any responsibility have shown an equal interest in this codification of human rights. The proposed constitution for the Belgian Congo and probably that of Somaliland will embody the relevant clauses of the Convention, as also will the proposed constitution for the Organisation of American States which was set on foot in August last year at Santiago de Chile.
My hon. Friend may think, therefore, that the application of this Convention to British territories now may accustom them to the exercise of these provisions and help actually to secure peaceful and orderly progress. There is also a more immediate reason why the Government may wish to look at this matter again.
176 It will not, of course, be unknown to my hon. Friend that Dr. Hastings Banda not long ago made application to the Icelandic Government that they should bring a case against Her Majesty's Government concerning his imprisonment. There is no shadow of doubt that if any ratifying Government of the Convention wishes to bring a case against some other signatory Government for violation of the Convention in respect of any individual and in any territory to which it applies, they can do so. We have already had a case in point, when we were arraigned by Greece in respect of Cyprus.
This possibility, namely, that Governments who are completely unconcerned in a cause can bring suit against another Government on behalf of an individual who is not even their own national, is a new fact. Neither under international law nor under any other international convention known to me is it possible. The International Court of Justice at the Hague always insists that a nation which brings a suit must have locus standi, and that locus standi is given by the nationality of the individual concerned.
No doubt, friendly Governments will not easily lend themselves to frivolous complaints by individuals against other friendly Governments, but circumstances and friendships change and cool, and if a Government of a hostile character were elected in any signatory State they might cause far more trouble by bringing suits against Her Majesty's Government than any number of individual suits, which would in any case nearly all be stopped in limine by the screening which every application receives from the Commission. If that right of individual petition existed intervention by Governments would be far less likely.
There is another reason why the recognition of the right of the individual may be helpful in this case to relations between signatories. Not only is it true that ill-disposed Governments may at the moment bring suits against us. It is also true that unfair conditions and wrongs in a signatory State are not righted because friendly Governments hesitate to bring cases against other friendly Governments in order not to vex them, but if individuals had the 177 right to bring cases there would be no reason for such individuals to tempt unfriendly Governments to litigation, nor any reason either for friendly Governments to be driven to mutually wounding accusations.
If the Government have misgivings about this, has consideration been given to the adoption of a Convention for the protection of human rights for the Commonwealth? The common law of England has been one and perhaps the greatest of the gifts which we have made to the Commonwealth, but now that the unifying influence of the Privy Council's jurisdiction has almost disappeared the time has come when the diverse influence of differing practice and circumstances in different parts of the Commonwealth will doubtless whittle away the common factor.
The acceptance of this Convention and the establishment of a court for its application may be of great value to the Commonwealth. The Commonwealth is founded on the principles of this Convention, and its application could in no way imply inferiority of the younger States to the older, and adherence to it would be a matter of pride and not of humiliation. As to whether it is time for the United Kingdom to propose such a Convention and such a court in relation to the Commonwealth, there clearly may be more than one opinion, and it takes me far wide of the subject upon which I wish to talk tonight.
I recognise that there is a great deal to be said on either side of this proposition It may be that the price which we have to pay for this form of international co-operation is too high, but I think that we should realise that in every form of international co-operation, every form of treaty into which we enter, there is a price which must be paid.
If we are to go into N.A.T.O., we forgo some of our independence in military planning; if we take part in Euratom, or the organisation for nuclear research in Europe, we have to give away secrets which cost us many millions of£s to assemble and know about; and if we join economically in the organisation of Europe. we have to forgo some of our own control and independence over our own economic policies in this country.
Without pressing the matter hard in any way, I think that it is worth while 178 for us to consider whether we are prepared to pay this price, and I should like to hear from the Joint Under-Secretary what the price may be and whether he thinks it worth while our going into this Convention, or whether reasons still incline the Government to be against it. I ask whether the Government think that the situation has changed to any extent, in the light of the considerations which I have been able to advance, and whether they now contemplate adhering to the right of individual application to the Court of Human Rights.
§ 10.31 p.m.
§ Mr. William Yates (The Wrekin)I support the speech of my hon. Friend the Member for Stroud (Mr. Kershaw). In view of the situation in various parts of the world and the Commonwealth the Government should now be in a position to reconsider their attitude towards human rights.
Clearly, it was unsatisfactory that Greece had to bring a case against us over the Cypriot people. I would have thought that, after the Commonwealth Prime Ministers' Conference, the time had come, even if the Government could not agree to the universal application of these rights, for them to apply them within the Commonwealth for a start.
Almost all the human rights which we now enjoy began in this country—looking back to the Bill of Rights and other reforms which we have had. I very much hope that what my hon. Friend has said will be received sympathetically by the Government and that we will not hear that this great country cannot subscribe to the Convention.
§ 10.32 p.m.
§ The Joint Under-Secretary of State for Foreign Affairs (Mr. Robert Allan)I know the interest which my hon. Friend the Member for Stroud (Mr. Kershaw) takes in these matters and I am grateful for the chance I have had of discussing his views with him. Although I shall not be able to accept all his contentions, he argued clearly and with understanding of the problems involved. I was also interested by and impressed with the speech of my hon. Friend the Member for The Wrekin (Mr. W. Yates).
Before I go into details of the arguments, I would like to take up this question of price, the price we have to pay 179 to be associated with the kind of European development of which this Convention is a part. First, my hon. Friend has shown that he appreciates the importance which successive Governments have attached to the Convention and I shall not reiterate the conviction of the present Government that the Convention itself must be upheld in all its provisions.
We have made that perfectly clear by applying it not only to this country, but to 42 of our dependent territories. That compares favourably with the actions of the other European members of the Council of Europe who have overseas territories. For instance, as I know my hon. Friend realises, France has not ratified the Convention at all and Belgium has not extended it to the Congo. Apart from our extension, the Convention has so far operated almost entirely in Europe, the region for which it was, after all, primarily designed.
We have accepted a considerable price. We have accepted the obligations laid down in the Convention to guarantee 16 rights and freedoms, including the rights to life, liberty and fair trial. We have undertaken to see that our laws and practices, and those of our territories to which the Convention has been extended, are in conformity with it. We have also agreed that we may be called upon to answer charges made by other parties to the Convention about alleged infringements of the Convention, whether in the United Kingdom or in the territories to which the Convention has been applied.
These charges would, of course, be heard by the Commission. If the Commission fails to settle a case, which is its first duty, and refers it to the Committee of Ministers, we have agreed to accept the decision of a two-thirds majority of that Committee as to whether an infringement has taken place. Further, we have agreed to take any measures necessary to meet the decision of the Committee. Those are very considerable obligations which we have undertaken, and undertaken not only for ourselves but for the dependent territories to which we have extended the Convention.
In terms of the price of which my hon. Friend spoke, I think that it is a fair price to have paid, but he argued 180 that we should go one step further. He very fairly pointed out some of the reasons why Governments in this country have decided not to opt for the right of individual petition provided under Article XXV. He stressed the different states of development in territories outside Europe. That is exactly the point. It is the very reason why this clause was made optional. I must stress that the optional nature of this clause is part of the Convention itself, and the fact that it is so has made it easier for countries to ratify the Convention and to extend it to their dependent territories outside Europe. In fact, were the clause not optional there might not have been anything like the ratification which there has been or the extensions to dependent territories.
My hon. Friend also alluded to some of the practical political considerations which have to be taken into account when looking at the territories outside Europe. Apart from these, to which I will return in a moment, the Government's view has always been that, inside or outside Europe, States, not individuals, are the proper subjects of international law. This Convention, entered into by the member States of the Council of Europe, binds them to ensure that their laws and practices are in conformity with it. It is the States, not the individuals, who are parties to the Convention and who are bound one to another. We believe that it is first and foremost a matter for the State concerned to ensure that its internal legislation is in conformity with the Convention.
My hon. Friend pointed out that allegations of infringements of the Convention made by one State against another may on occasion lead to friction between member countries. He instanced the case of Dr. Hastings Banda in this connection. He was denied the right of individual petition and he sought to get another Government to take up his case. That, of course, is a risk which we run. As the hon. Gentleman knows, the Icelandic Government did not take up Dr. Banda's case. But whether we accept Article XXV or not, this risk is still there.
Our traditional view that the State and not the individual is the proper subject of international law is one reason why we have refused to make the 181 optional declaration regarding the right of individual petition. As I said, there are more practical reasons for our reluctance to do so. My hon. Friend pointed out that an extraordinarily high proportion of applications brought to the Commission are rejected. As he said, of the individual petitions so far presented only three have been declared admissible, and it is only occasionally that the Government concerned have been approached by the Commission at all.
I should like to make clear straight away that Her Majesty's Government have no objection to any extra work which might be involved if we believed that this would genuinely facilitate the maintenance of human rights. My hon. Friend hinted that to allow anyone and everyone to petition the Commission of Human Rights might create more problems than it solved. I agree for a number of reasons. First, while the fact of a petition is bound to become public knowledge, the Commission's report is secret.
This means that whether a petition were dismissed or not, the fact that it was laid could always be used for propaganda purposes against the Government challenged. Because the Commission's report is secret, I cannot discuss it in relation to the subjects raised by my hon. Friend the Member for The Wrekin. The point is that the petition was used against this country unfairly for propaganda purposes.
182 My second point is one that was mentioned by my hon. Friend, that conditions in many Colonial Territories are different from those in Europe. Among emerging communities political agitators thrive and one may well imagine the use which political agitators would make of the right of individual petition. For every one grievance which had some substance there would be a hundred put up for political purposes only.
My hon. Friend mentioned the question of a Convention on human rights for the Commonwealth. This is an attractive idea which has been before us for many years in one guise or another. I will certainly pass on my hon. Friend's remarks to my noble Friend. But I feel it would be unfair not to take the opportunity of pointing out that my right hon. Friend the Home Secretary did not look very favourably on the idea when it was raised through Questions in the House last month.
I may not have been able to give my hon. Friend the kind of positive reply for which I know he was hoping. On the other hand, I am most grateful to him for raising this matter, because it gives me the opportunity of reaffirming something I said a year ago in a similar debate, which is our decision that we shall support this Convention to the best of our ability.
§ Question put and agreed to.
§ Adjourned accordingly at fourteen minutes to Eleven o'clock.