§ Order for Second Reading read.11.31 am
§ Mr. A. J. Beith (Berwick-upon-Tweed)
I beg to move, That the Bill be now read a Second time.
It has been a long struggle to secure a debate in this House on the Bill of Rights Bill, despite the many occasions on which that Bill has gone through another place—a matter to which I shall refer later.
At the beginning of the debate, I place on record my appreciation of the assistance of the right hon. and learned Member for Hexham (Mr. Rippon), without whom we would not be having the debate today. He had on the Order Paper another Bill—the Aircraft and Shipbuilding Industries (Amendment) Bill—and it was his decision to withdraw that Bill that has enabled us to have the debate today. I know that in doing so he was very much persuaded not merely by his long and courageous insistence on the need for a Bill of Rights in this country but by his belief that the very people for whom he was seeking to bring forward that Bill have as strong a grievance as anybody, and as strong a case as anybody for seeking to secure that the provisions of the European Convention on Human Rights can be enforced in the courts of this country.
The shareholders of the aircraft and shipbuilding industries, now in the queue to have a case heard in Strasbourg, are among the many categories of people who ought to have the opportunity to test these issues in the courts of our own land. I therefore greatly appreciate the way in which the right hon. and learned Member has made possible the debate today.
As we have three of the four county Members for Northumberland in the Chamber, it would be right to point out that only two weeks ago, in a Friday debate, the hon. Member for Blyth (Mr. Ryman) argued from the Labour Benches the need for a Bill of Rights. He showed that in the Labour Party, as in all parties, Northumberland leads the way, and said that his constituency party had brought a motion before the Labour Party conference calling for a Bill of Rights.
I am glad that in Northumberland, however much we may have been fighting each other yesterday in the local elections, there is a great deal of agreement between Members of different parties on the need for a Bill of Rights. The debate was brought on at short notice, in a week when many hon. Members were engaged elsewhere in local elections. I must plead guilty, Mr. Deputy Speaker, to having a local election throat, which may make my remarks less audible than I should like them to be. There are many hon. Members who would have made plans to take part in today's debate had it been possible for them to do so. Indeed, it is a tribute to the skill of hon. Members in changing long-range plans that we have some present today to take part in the proceedings.
The background to the Bill of Rights Bill that I bring before the House today is a long one. In 1969, my then hon. Friend who is now my noble Friend Lord Hooson, brought a Bill of Rights before this House in almost identical terms to the present one. In 1970, my then noble Friend Lord Arran brought a similar Bill before the House of Lords. In 1975, I brought a Ten-Minute Bill before the House in this form and gained approval for it to be introduced in that way. But it is my noble Friend Lord Wade who has, time and time again, brought this issue 420 before the other place, and I pay a very warm tribute to him. Year after year he has pressed this matter upon the House of Lords, and he has gained support for its progress.
My noble Friend, who is not as young as I am, has been tireless in his efforts in this respect. He brought forward his first such Bill in 1976. In 1977 he again brought forward a Bill, and that Bill, on the motion of the present Lord Chancellor, then in Opposition, was referred to a Select Committee. That was a very sensible procedure, because it enabled very detailed study of the provisions of the Bill to be made by an eminent Committee. The issues were stated in a carefully argued report, which brought out both sides of the argument.
The progress of that Bill, following the Select Committee, was approved in another place in 1978. Then a general election intervened, but my noble Friend was back again in 1979 to bring his Bill of Rights through every stage in the House of Lords. It then came to this place and made no progress hut, undeterred, my noble Friend began again in 1980 and brought his Bill through every stage in another place. That Bill—the 1980 version—is now before us. My noble Friend has been tireless in this matter and has gained the respect of their Lordships not only for his personal commitment but for the cause that he was pressing.
Why do we need special provision to protect human rights and fundamental freedoms? There is now a widespread body of opinion that some measure of protection is needed. In our system it is proving rather too easy for transient majorities to abrogate rights without effective challenge. One of the tendencies of our electoral system—curiously, it is no less notable in local government elections than in parliamentary elections—is to produce very large swings in representation, even when there are quite small changes in the voting of the electorate. The effect of that in this place is often to create majorities that carry through measures that may abrogate human rights without challenge.
Often these reductions in our rights and freedoms are not the result of some conscious attempt by Governments to narrow the scope of individual freedom. There is often a compelling reason for taking some action. There is often some reason or excuse which leads Governments to take steps that, perhaps because they become permanent or because they are wider than they need be, begin to infringe upon individual rights.
In 1911 the Official Secrets Act was passed in order to deal with a pressing problem and a gap in the law. It was very wide in its scope, and it has lasted far longer than it should have done. It was said at the time that it would 'be temporary in character, but its provisions are so wide and far-reaching that our courts are unable to operate them, even in the sense in which they were originally intended, so that they cry out for reform. They ought to have been and ought now to be challenged on the basis of some definition of fundamental rights.
Our protection of terrorism legislation, introduced with support in all parts of the House as a necessary temporary expedient, has become fearfully long-term and permanent. It is renewed and renewed without modification or amendment, although we have the opportunity to consider amendments. The Government who introduced the legislation and the parties that supported it did so because of a pressing cause, but there was no mechanism to test that, perhaps at a later stage, against fundamental rights and freedoms.
421 Sometimes Governments narrow or infringe upon human rights because they believe that they are properly responding to what they think are majority opinions. In areas such as immigration law and nationality law there are great pressures on Governments, which make them wish to respond in particular ways without being subject to any real test or challenge of the relationship of such things to fundamental freedoms.
§ Mr. John Ryman (Blyth)
Before the hon. Gentleman leaves the point about legislation that is properly brought in, for very good reasons, on a temporary basis, will he bear in mind the legislation under the taxes and management measures in the late eighteenth and early nineteenth centuries, which introduced income tax as a temporary measure?
§ Mr. Beith
I shall bear that point in mind. The hon. Member has displayed a knowledge of legislation that goes beyond mine. Only the other day I was looking at tax legislation and retrospective tax legislation. I noticed that in 1968 we managed to enact a piece of retrospective tax legislation without any debate in this Chamber, under timetable proceedings. That shows that, as a result of various pressures, legislation can slip through this place. Such legislation should be open to challenge.
I have tried to list the various reasons why Goverments narrow or infringe human rights, or are open to that charge. There is another example. The Government sometimes act in what they believe to be the interests of legitimate and important groups in society. However, they do so at the expense of individuals. For example, the legislation that protects the closed shop limits the rights of individuals. In the course of this Parliament there have been some improvements in that legislation, but not enough. Individuals still have legitimate grievances as a result of that legislation.
The Solicitor-General knows that I have taxed and pressed him time and again on the curious position in which he finds himself in Strasbourg, when he has to deal with complaints as a result of that legislation. I would prefer to see him dealing with those complaints in the first instance in our courts. We welcome his presence and very much appreciate why the Attorney-General is engaged on other important but not very happy duties.
§ Mr. Clement Freud (Isle of Ely)
Is my hon. Friend aware that one great cause of misery is that applications for nationality are made to the Government and are sometimes refused without any reasons being given? Would not this legislation put an end to that concern and injustice?
§ Mr. Beith
I agree that the right to a fair hearing and the need for proper handling of administration decisions need an objective measure against which it would be possible to test, in a judicial way, a Government's activities. Our system lacks such a measure. At one time, when the State's intervention in the life of an individual was far less, we were content to rest on written assumptions. Circumstances have changed dramatically. Regardless of which party is in power, the State's role has grown so much that the unwritten assumptions have proved inadequate and have not protected us in such circumstances.
422 There is a pressing need to look at the threats created by new technology, which make existing safeguards inadequate. I refer, for example, to telephone tapping, bugging, and eavesdropping on private conversations. Not all threats come from Governments; they also come from private individuals and outside organisations. In the past few days we have witnessed the invasion of the privacy of our own Royal Family by money-grubbing freelance journalists who will use any device and opportunity to eavesdrop and to intrude on the privacy of individuals. The Royal Family and its legal advisers have rightly moved swiftly.
The ordinary private citizen finds it difficult when his privacy is threatened by the Government or by other bodies.
§ Mr. David Alton (Liverpool, Edge Hill)
That is an interesting point. Does my hon. Friend agree that when we discussed the British Telecommunications Bill we missed a great opportunity, because the Government refused to accept the amendment moved by the hon. Member for Hendon, North (Mr. Gorst)? The hon. Gentleman attempted to introduce legislation that would prevent the unwarranted use of telephone-tapping techniques, which undoubtedly infringe civil liberties. Will not the Bill give us an opportunity to ensure that legitimate telephone calls are not listened to by anyone who wishes to pry into the conversations?
§ Mr. Beith
I agree with my hon. Friend. Again, we are discussing something that cuts across party lines, because it deals with fundamental civil liberties, for which there is no objective test or protection. We could seek to write our own Bill of Rights and to produce a British domestic Bill of Rights to deal with such matters. However, I do not advance that cause today. It would prove a difficult undertaking. It would be difficult to achieve in a short space of time the consensus necessary to get such a Bill on to the statute book. In immediate terms, there is a more practical way of dealing with the issue, and it should be followed. It is the way that my noble Friend Lord Wade has set out.
We have already given assent to a Bill of Rights and to a declaration of fundamental rights and freedoms. We are a signatory to the European Convention of Human Rights. Indeed, Britain signed in 1950. The convention is a product of the Council of Europe and not part of the machinery of the EEC. Lest anyone objects to our membership of the EEC—I do not—and thinks that this subject is not for him, I must make it clear that the convention is part of the apparatus of the 21-member Council of Europe. Among the European countries there is the broadest possible basis of agreement on human rights and other issues.
The convention came into existence long before the EEC and is a precursor of it. It still enjoys the support and ratification of many countries that are not members of the EEC. Its provisions cover many of the areas involved in fundamental rights and freedoms. For example, they cover the right to life, freedom from torture or inhuman or degrading treatment, freedom from slavery or forced labour, the right to liberty and a fair trial, the right to respect for family life, home and correspondence, freedom of thought and religion and freedom of expression and association, and the right to marry and to found a family.
All those basic rights, and developments of them, are to be found within that important European convention. 423 All hon. Members could point to ways in which they would like to modify, alter, improve or even detract from that convention. However, the important point is that it enjoys widespread support and the ratification and endorsement of successive British Governments, as well as those of all other nations of Europe.
Although we have not failed to endorse the convention or to accept its principles, we have failed to incorporate it into our law. This Bill seeks to make that move. The Government are under an obligation to ensure that the provisions of the European convention are carried out in Britain. However, the courts have no power to consider them or enforce them. The Government are left with the job of waiting for the European Commission of Human Rights, or eventually the Council of Ministers, to determine whether an infringement has taken place, and are then given the task of bringing British law into conformity.
The Contempt of Court [Lords] Bill can be instanced as an example. It is in part a response to the discovery that our law on contempt was an infringement of the rights of the press. It was discovered that The Sunday Times thalidomide case involved an infringement of the European convention. Most hon. Members will agree that The Sunday Times should have been able to print the story that it wished to print from the beginning. Instead, there was a protracted process. Even now we are struggling slowly with the attempt to deal with the features of our law that were found to be inadequate under the terms of the convention.
There is a shortcoming, because the Government have an obligation that cannot be backed in court. In addition, what should be the ultimate appeal is the first instance. Strasbourg should represent the ulimate appeal in cases tha involve the infringements of human rights. Most other countries allow their citizens to go to their own courts first if they wish to claim that there has been a breach of the European convention. Strasbourg is the last stage in the process. However, we end up haggling with our own citizens at Strasbourg. They have had to wait in a queue of complainants. Indeed, private shareholders in the aircraft and shipbuilding industry have had to wait in a long queue.
The process is necessarily expensive. It involves practical difficulties, because individuals must leave the country in order to present their cases. If one considers the individuals involved, such as the three British Rail employees, it will be realised that the undertaking is hard. If someone such as Miss Joanna Harris had to face the prospect of trying to get her job back she would find it a difficult undertaking. It is difficult for the private citizen to pursue a case in the European Court.
The system is also bad for Britain. At Strasbourg, we are arraigned mare than any other country for alleged breaches of human rights. We appear to be the worst offender in Europe.
§ The Solicitor-General (Sir Ian Percival)
I am sure that the hon. Gentleman must know that that is not correct. Even if one takes the absolute numbers, we are not the nation with the greatest number of complaints against it, I am happy to say. If it were translated into the number of complaints per million, or whatever other basis of comparison might be thought suitable, we should be well down the scale.
§ Mr. Beith
I should like to have the Solicitor-General's air fares to and from Strasbourg for the number of occasions on which he and his predecessors have had to go there to defend the British Government, whether in the British Railways case, The Sunday Times Thalidomide case, the Northern Ireland torture case or the Isle of Man birching case. The list is long of important British human rights issues that have gone straight to Strasbourg without being tested in our courts. Those are major cases. It has not reflected well on Britain that we have so often washed our dirty linen in Strasbourg. I do not suggest that we have been wrong in every case, as I have cited some important and notorious cases.
It is not right that our citizens should constantly go to what is, in effect, the Court of Appeal, or the House of Lords of European justice, rather than beginning their cases in our courts, where they might be resolved.
The effect of the Bill would be to allow citizens to apply to the courts in Britain against infringements of human rights. That is important, for the reasons that I have given. It is not attractive to those who want to see British justice working well to have European rights commissioners flying to the Maze prison and discussing with the Prime Minister of another country whether an infringement: of human rights has occurred. People should have no excuse not to pursue a grievance in our courts first.
§ Mr. Richard Wainwright (Colne Valley)
Does my hon. Friend agree that no amount of scrupulous or meticulous care by the Strasbourg court will succeed in satisfactorily implementing for the people of the United Kingdom the universally recognised principle that justice must be seen to be done?
§ Mr. Beith
I agree with my hon. Friend. I want to see straightforward procedures that are clear and understandable to the British people, that do not have to be short-circuited or bypassed, and that people do not have an excuse to short-circuit or bypass. The British courts have ample experience of that, and British citizens would welcome the opportunity of pursuing grievances in British courts.
The Bill would ensure that the convention prevailed against common law and statute law, unless a subsequent statute specifically excepted itself from the provisions of the convention. However, those are Committee points about wording; I do not want to go into detail, because we may be able to achieve improvements in Committee. We should try to erect a trip-wire against subsequent legislation. No Parliament can bind its successors. That is part of our constitutional doctrine. In this Session we cannot prevent subsequent Parliaments from repealing what we have done. But we should institute a procedure that will highlight a contravention of the European convention by any subsequent statute and cause a special step to be taken which will force Members to recognise what they were doing if they so infringed the convention.
The Bill does not entrench the Bill of Rights. In a reply to a question from me the Prime Minister at one stage seemed to think that the Bill entrenched the European Convention on Human Rights by introducing a procedure that subsequent Parliaments could not overturn without an additional majority, referendum, or some other procedure. The Bill does not do that. That is another argument. The object of the Bill is to produce a special effort on the part of Parliament, publicly and distinctively, if it infringes the European convention in a subsequent statute.
425 The Bill does not seek to alter and it does not remove the obligation that we have under the treaty, already signed, to observe the convention. It makes it easier to ensure that we observe it by allowing our citizens redress direct from the courts and by drawing to the attention of Parliament any occasion on which it appears to infringe that convention.
Where do we go from here? How can we progress in bringing in a popular and widely supported measure? As we have time, I want the Bill to have a Second Reading today, because it can then go to Committee. It could go to a Standing Committee. It would be desirable if it went to a Special Standing Committee. That is our new procedure under which witnesses can be heard for the first few sittings. The general principles are examined and the Committee continues to consider the detail of the Bill. That would be a suitable and sensible procedure, but it necessitates a motion from the Front Bench. A private Member cannot achieve that. Alternatively, it could go to a Select Committee, as happened in the other place. That would be an opportunity for us to give the Bill the sort of scrutiny in this place which another place has already given it. I doubt whether we can improve on the efforts of an eminent and well-qualified Select Committee in the other place. That would be a desirable move.
I fear that the Government are not willing to proceed that far. They will use all the means at their disposal to ensure that we do not get further than a preliminary canter round the course. That would be disappointing.
The Government's alternative has been to suggest on a number of occasions that the appropriate response is all-party talks. That is an unusual burst of consensus politics by the Government, and I suppose that I must welcome that desire to secure agreement from all parties before we proceed. That is not new. In November 1979 the Lord Chancellor suggested that. That was confirmed by the Prime Minister in a letter to me in December 1979. We suggested that we were willing to accept such all-party talks.
On 6 May 1980—just a year ago—the Prime Minister wrote to me. She said:We wish, as you say, to discuss a possible Bill of Rights with other parties. We said in our Manifesto that this was a subject which we would wish to discuss with all parties.However, I can see no prospect of all-party talks about a Bill of Rights until the current talks on Scotland and Northern Ireland have been concluded. We shall approach the parties as soon as possible after that.As far as I know, the talks on Scotland and Northern Ireland have ended inconclusively. Further talks will take place, as we shall discuss Northern Ireland for many years, but the Bill of Rights cannot wait until we arrive at a solution to that intractable problem, quickly as I should like to see such a solution.
The discussions to which the Prime Minister referred are long over, yet we have not proceeded to all-party talks. We continue to pursue this matter in the present Session. I welcome the suggestion from the Front Bench on 10 April that all-party talks were still in the Government's mind. The Minister of State, Home Office—the hon. Member for Aylesbury (Mr. Raison)—answered that debate and said:We believe that important proposals for constitutional change of the type involved in any Bill of Rights should proceed as far 426 as possible by agreement between the political parties. The Government have it in mind to initiate talks at a suitable time."—[Official Report, 10 April 1981; Vol. 2, c. 1264.]When would be a suitable time? The Government were all too busy with Scotland and Northern Ireland before, but perhaps now is a suitable time.
I wrote to the Prime Minister taking up the sensible offer and suggested that now was a suitable time. A day or two ago I received the reply:As Tim Raison said in the debate on 10 April to which you refer, we believe that important proposals for constitutional change of the type involved in any Bill of Rights should proceed as far as possible by agreement between the political parties. I am not yet ready to announce any timetable for a Government initiative in the shape of an approach to the other political parties, but I shall consider what may be appropriate in the light of relevant developments and the Government's other priorities.That choice phrase deserves repetition:I shall consider what may be appropriate in the light of relevant developments and the Government's other priorities".That is not the decisive Prime Minister that we have come to know. It is the Government stalling again and again on the sensible proposition that if the Government are not happy to proceed with the Bill at this stage we should have talks.
We cannot go on like that with Bills passing through every stage in another place, brought to this House and debated after determined hon. Members have struggled to create the opportunity for debate, only to have the Prime Minister and the rest of the Government Front Bench saying that they will consider whether an opportunity will arise, that there are other priorities, and all the other Civil Service stalling language that comes from the handbook on stalling phrases and words of which every Government Department must have a copy.
The House is entitled to better than that. At almost one stroke we could make some valuable achievements if we proceeded with the Bill. We could underline the commitment that we have already made to the principles of human rights in the European convention. We could give the citizen easier, cheaper and quicker means of enforcing those rights. We could entrust that enforcement to our judiciary, with its roots in the British tradition of civil liberty. We could avoid British citizens constantly arraigning their Government in Strasbourg.
I want to see progress on this matter. The Government have prevaricated for too long. There is broad enough agreement that at least we should go to talks quickly. I should like my Bill to be given detailed scrutiny very soon.
§ Mr. Geoffrey Rippon (Hexham)
I warmly welcome the way in which the hon. Member for Berwick-upon-Tweed (Mr. Beith) introduced the Bill, and I greatly appreciate what he said. I join him in paying tribute to Lord Wade, who has on four occasions introduced this Bill into another place and has twice seen it carried through all stages after exhaustive consideration of all the implications by a House of Lords Select Committee. His persistence, for which we should all be extremely grateful, has been buttressed at every stage by powerful support from all sides—not least, of course, from the Lord Chancellor.
Defence of the individual against arbitrary government and the abuse of power is one of the historic functions of Parliament. Today there is a growing concern that private rights hitherto regarded as fundamental to the liberty of the individual in a free society have in recent years been 427 progressively eroded. There are those who in these circumstances have argued for a new written constitution, possibly with entrenched provisions that a bare majority of Parliament could not overthrow. But, whatever attractions that proposition may have, there is general agreement that the drafting of a new constitutional settlement of that kind, particularly with entrenched provisions, would present formidable difficulties.
As I understand it, the Conservative Party manifesto deals with that issue in the promise to discuss such a possible Bill of Rights with all parties. But I emphasise that that is not the issue in this Bill, which has the clear but limited purpose of giving effect in our domestic law to international treaty obligations to which we, with all the other signatory member States of the Council of Europe, are already committed. The House will know that the signing of a treaty is an exercise of the prerogative power of the Crown. A treaty can only be accepted or rejected by Parliament. It cannot be amended. We discussed that issue in the context of the European Communities Act 1972. Parliament is and must be entitled to make only such changes in our domestic law as are required to give effect to the terms of the treaty.
When we acceded to the European Convention on Human Rights in 1953, it was believed that our law had nothing to fear from any appeal to the articles of the convention. Unfortunately, experience since then has shown that there are a wide number of areas—the hon. Member for Berwick-upon-Tweed described some of them—where the British subject must take the long and expensive road to Strasbourg as a court of first instance, since our domestic law provides no remedy in our courts.
The United Kingdom is currently the only signatory which neither has a charter of fundamental human rights nor has incorporated the convention into domestic law. It is expressly required by article 13 of the convention, however, that there should be a right to go before a national tribunal before the ultimate appeal to the Strasbourg court. As long as the convention remains only a treaty and forms no part of our domestic law, our citizens alone have recourse only to this remote and expensive remedy in Strasbourg. Our judges cannot look directly at the convention when they have a human rights problem to resolve.
At the same time, as Lord Scarman has observed in another place,the wisdom and experience of our judges and the traditions of English law never become available for consideration by the European Court."—[Official Report, House of Lords, 4 December 1980; Vol. 415, c. 543.]I suggest, therefore, that we are getting the worst of both worlds. In effect, our British courts cannot, unless and until this Bill becomes law, secure to our citizens all the rights and freedoms which under international law we have bound ourselves to secure for them.
I fear that recent events have shown that we can no longer assert in this House that our English common law, supplemented by our statutes, is a sufficient protection for the individual rights of our citizens. The hon. Member for Berwick-upon-Tweed has explained the circumstances in which I decided that it would be helpful to withdraw my Aircraft and Shipbuilding Industries (Amendment) Bill from today's Order Paper. It is largely subsumed within this Bill. I also have to face the fact of life that, although 135 hon. Members have requested the Government to facilitate the passage of my Bill, it is clear that they are 428 not at present prepared so to do or to provide the necessary financial resolutions which would be required to make it effective. We should, therefore, have engaged on an academic exercise without the prospect of early success.
The principles of this Bill would, of course, be sufficient to deal with the basic issue raised in my Bill. If this Bill had been on the statute book, the aggrieved owners of the assets which were nationalised could have applied directly to the British court instead of having to go to Strasbourg. That is the key point. I hope that the Government will be more ready to allow this Bill a Second Reading.
An early-day motion, signed by 161 hon. Members, asks for a Second Reading and a free vote on the Bill we are now discussing. Those are the same principles as the Government adopted in the other place, where they said that if there was to be a Division—there was not one—they would allow a free vote. There should be a free vote on this matter, and we should certainly ensure that such a. vote is taken by the House of Commons.
§ Mr. Ivor Stanbrook (Orpington)
Does my right hon. and learned Friend believe in the principle of the supremacy of Parliament, or does he believe that we have reached the stage now when we must go to Strasbourg to define our rights?
§ Mr. Rippon
I agree that we should not have to go to Strasbourg to define our rights. We should be able to go to a British court. There should be no question of an abrogation of the ultimate sovereignty of Parliament in any event. The Bill puts down a marker and ensures that legislation shall not be contrary to the convention unless it is clearly stated that this is the purpose of Parliament. It is known in practice that even Governments of modern times may be a little reluctant deliberately to bring before the House measures which they have to assert are in breach of treaty obligations ab initio.
There should be no doubt about the importance of the principles that are at stake. So far as I am aware, no member of the present Government has ever denied that the terms of compensation under the Aircraft and Shipbuilding Industries Act 1977 were grossly unfair, to put it at its lowest. On the contrary, they have expressly agreed that the compensation was unfair. They assert, however, that they cannot see their way to introducing amending legislation because of the difficulties of reopening the question. There is apparently no difficulty in conferring—if that is the right word—a retrospective detriment such as the proposed windfall tax on bank profits. How, therefore, can there be a constitutional objection to a retrospective benefit to remedy a manifest injustice?
We are not, however, concerned in this Bill just with one particular case. We can open a much broader spectrum. The sort of thing that happened to the owners of the assets of the nationalised aircraft and shipbuilding industries has happened before—as, for example, in the case of the Burmah shareholders' action. In that case, the present Secretary of State for Social Services——
Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
Order. The right hon. and learned Gentleman will be aware that we are discussing this Bill and not other Bills.
§ Mr. Rippon
That is why, Mr. Deputy Speaker, I am going out of my way to explain that whereas the Aircraft 429 and Shipbuilding Industries (Amendment) Bill would remedy only one particular injustice, this Bill, if it was on the statute book, applies, under clause 2, to previous statutes as well and would deal with other manifest injustices that, in my view, require to be brought before British courts. It is necessary, I believe, to bring out what people say about issues in Opposition and what they do about them in Government.
The present Secretary of State for Social Services said that the injustice done in the Burmah case washighway robbery under duress. Have not the Government now become the biggest asset stripper of the lot"—[Official Report, 3 December 1975; Vol. 901, c. 1687.]Other members of the present Government were equally critical.
A real problem exists here. Things are said in Opposition but the complaints made are not remedied in Government. This applies to all Governments. The same complaint has existed for a long time. Sir Robert Peel said in 1831:Men, if in office, seemed really to be like the Indians—they inherited all the qualities of those enemies they killed".The House has to examine the sort of injustice that we allege has taken place, over which people have been forced to go only to Strasbourg. We are now looking to future matters. There is no reason to believe that similar injustices will not take place in the future. One needs to consider the consequences if future Governments use the shipbuilders' compensation as a basis for other companies and industries. Without suggesting that this is what is planned, the Institute of Directors has calculated the result of applying to other companies and industries the sort of principles that have been applied to the aircraft and shipbuilding industries which are now the subject of dispute in Strasbourg and which, I maintain, should be raised first in our own courts.
A company of the size of Beecham Laboratories, with net assets of £520 million, would receive £104 million. George Wimpey would have a likely compensation of £57.8 million for net assets of £289 million, and Plessey £63 million for assets of £316 million. There is, therefore, a real danger that not only the investors in the aircraft and shipbuilding industries may suffer if Parliament does not give them some protection. There is also a real danger that every investor, every saver with a unit trust and everyone in a pension fund would perhaps be offered no more than 20p in the pound in full and final payment with the assurance—this the important point—that a subsequent Government would do nothing about it.
It is important in these circumstances that we should give aggrieved citizens in this country a right of appeal to British courts as a court of first instance. They should not have to go, time and again in this and other cases to which the hon. Gentleman has referred, to Strasbourg to get an opinion, as Lord Scarman said, without the benefit of the wisdom and experience of our own judges. Until this Bill is on the statute book, we are at risk, as the Lord Chancellor has emphasised in recent remarks in the Select Committee on Employment, in current and potential litigation in Strasbourg courts, as regards not only the aircraft and shipbuilding case but the closed shop case and a number of other matters.
We are under an international obligation to make our own law conform to the Strasbourg court decisions. In the absence of a Bill of Rights incorporating this European 430 convention in our domestic law, we would need primary legislation every time to put matters right. I believe that it would be better to try to put our house in order now. Apart from the three British Rail closed shop cases now before the Strasbourg court, the more recent Joanna Hams case has underlined the anxieties that many people feel on this subject. It is unreasonable to expect someone such as Joanna Harris, unless she can secure great public financial support, to go to Strasbourg to argue her case. She cannot, however, go to a British court to argue a human rights issue.
Whatever view one takes of the merits of the particular cases now before the Strasbourg court—for example, the legal arguments whether or not the convention covers the right not to join, as well as the right to join, a trade union—it is objectionable that we cannot deal, in the first instance, with this matter in our own courts.
§ Mr. Stanbrook
Does not my right hon. and learned Friend agree that, in every case of injustice that he has spotlighted, the correct remedy is a change in United Kingdom law to deal with it? We should not go into this dangerous, unknown and uncharted territory, which would involve making us liable to accept the dictates of another final court of appeal located in Brussels or Strasbourg, actuated by principles foreign to United Kingdom law.
§ Mr. Rippon
We are not going into uncharted territory. We signed the treaty and accepted the obligations as one of the last acts of the Churchill Administration in 1953. We have no choice under international law. All we are doing now is saying that we are not going to give our citizens the right to go to a United Kingdom court. We are going to send them straight away exactly where the hon. Gentleman does not want them to go—namely, to Strasbourg.
If the Bill is passed, three things will happen. The first is that the European Convention on Human Rights will be enforceable in the courts of the United Kingdom. The second is that the convention will prevail over previous enactments. The third is that the convention will prevail over subsequent enactments unless stated to the contrary. This brings me to the point that I think worries my hon. Friend and a number of others.
There is no question of abrogating the ultimate sovereignty of Parliament or the ultimate responsibility of Parliament for ensuring human rights. I should like to examine what happens if the court in Strasbourg upholds the British Government and holds that there was no breach of the convention in the three rail cases and that there is no obligation under the convention to ensure that people have a right not to join a trade union. Following upon what the Prime Minister said yesterday, to the effect that the right not to join was as fundamental as the right to join, we can introduce and should introduce our own legislation in the House. We do not have to create a situation in which the only way we can deal with matters is by legislation when, if we rely on the convention and enforce it, a matter can be dealt with under due process of existing law.
There are those who say that Parliament can legislate for itself and should do so in respect of all these matters. If it desires to do so, well and good. They also say that the European convention is not sufficiently precise. In my view, those arguments are not adequate in themselves. We have, for example, the Sex Discrimination Act of about 75 pages, and the Race Relations Acts—three of them in the past 10 years—which are 80 pages long.
431 I agree with the present Lord Chancellor, who said:I would prefer a single sentence which said that people of all races should be treated alike and for the judges to view those cases as they arise"—[Official Report, House of Lords, 29 November 1978; Vol. 396, c. 1386.]Article 14 of the convention provides:The enjoyment of the rights and freedoms set forth in this Convention should be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social opinion, association with a national minority, property, birth, or other status".That is clear enough. We might have done without all that other legislation if we had allowed our courts to defend what we all accepted by signing the treaty as a fundamental human right.
But an Act incorporating the convention is not an alternative to the continued exercise by Parliament of its traditional sovereignty. It simply complements other Acts which Parliament may wish to pass affecting human rights. If the convention does not go far enough in protecting individual rights, we should, if necessary, supplement the convention.
The Bill provides our individual citizens with a positive and public declaration of the rights guaranteed them by treaty. There is, of course, no way in which this or any other Bill of Rights can be made altogether immune from amendment or repeal by a subsequent Act. The incorporating Bill, although it does not limit parliamentary sovereignty, would nevertheless be a continuing reminder to legislators of the international commitments that we undertook when we ratified the convention.
We pride ourselves in this country on our adherence to the concept of the rule of law, but we do not often study it carefully or consider what we mean. As Alexander Hamilton observed,It is one thing to be subordinate to the laws and another to be dependent on the legislative body".Our trouble today, as the late Lord Radcliffe said in his Reith lectures about "The Problem of Power" as long ago as 1951, is that with what is practically single-chamber Government, with the Executive and the legislature combined,the security of what used to be called constitutional rights is a very frail thing".The great victories of the past to secure the rights of the subject were won by Parliament acting against the Crown, the Executive. Now, the Executive and the law-making power are, to all intents and purposes, the same. They are in the hands of the Government of the day. The old safeguards are not applying as they used to do.
§ Mr. Percy Grieve (Solihull)
Would it not be true to say that there are few countries, if any, where the Government and the Prime Minister dispose of greater power than here, where they dispose of not only the legislative powers, if they command a majority in the House of Commons, but the executive power of the Crown?
§ Mr. Rippon
We are, as the Lord Chancellor eloquently described it, an elective dictatorship, and a great responsibility falls upon the Members of this House who are not part of the payroll vote to ensure that the rights and liberties of the subject are adequately defended where necessary. We must remember that many of the so-called freedoms of which we talk today are not freedoms in the former sense of the right of the individual to be protected against the power of the State. It is rather the reverse. They tend to be claims of the individual to be dependent on the 432 State and on society, such as the freedom from want and the so-called right to work. We must consider today how to protect the more traditional rights and freedoms of the very kind that are embodied in the European convention against the increasing encroachment of the State.
It is no secret that the Lord Chancellor is in favour of the Bill. He has said so over and over again. When it was debated in the other place on 8 November 1979, when he was admittedly discouraging about its possible progress in this House, at any rate in the last Session, which he said was over-full with legislation, he said:I shall vote for it on Second Reading—except that I do not think that a vote will be taken—and I shall give it as fair a wind as I can"—[Official Report, House of Lords,8 November, 1979; Vol. 402, c. 1,069.]I trust that the Solicitor-General will range himself firmly on the side of the Lord Chancellor and say that it is the Government's intention to give the Bill as fair a wind as they can. Of course, the Lord Chancellor cannot give the Bill a fair wind here, but the Government can and should, and I hope that we shall be given that assurance today.
If the view is taken that a Private Member's Bill is unsuitable, because it involves great issues and the implementation of a treaty commitment, the Government themselves should undertake to provide the necessary time. It is possibly the most important issue that faces Parliament now. Budgets and Finance Bills occupy much of the time of the House, but whether they are good, bad or indifferent they are not likely to change the course of history. However, if we fail to bring our minds to bear on the sort of issue raised in this Bill, we shall be betraying the historic role of Parliament.
§ Mr. Stanbrook
My right hon. and learned Friend knows that at present our courts are pretty full. There are waiting lists and litigants, both civil and criminal, often have to wait a long time before their cases come before the courts. Does he think that giving our citizens the right to claim that they have some basic human rights guaranteed them by the European Convention on Human Rights in our own domestic courts will reduce or increase the waiting lists?
§ Mr. Rippon
That is the most appalling argument that I have heard in all the debates that have taken place on this subject. The idea that our courts would not have time to consider the thalidomide case, the Joanna Harris case, the three British Rail cases or an allegation about expropriation of property is truly horrifying. I do riot imagine that matters of that kind would normally be taken in magistrates' courts. To say that we cannot do it because our courts are already overloaded is pathetic.
We cannot claim that the Bill will solve all the problems that arise from the abuse of power in a modern State, but in the armoury of weapons against the elective dictatorship, of which the Lord Chancellor spoke, this Bill would be of valuable—even if subordinate—assistance in securing the human rights of our people in accordance with our international obligations.
§ Mr. Edward Lyons (Bradford, West)
When one talks of a Bill of Rights one normally thinks of an entrenched Bill of Rights—that is, a Bill of Rights which is difficult to overturn. Lord Salmon, for example, sees a Bill of Rights as something which he calls a statute of liberty, in 433 which nothing can be changed once it has been passed, except by a majority of two-thirds of the House of Commons, a majority of the House of Lords, and by a referendum in which two-thirds of those voting vote to change the statute of liberty.
The Bill of Rights in this measure is not that kind of Bill of Rights. We are not dealing with entrenched legislation. It is obvious that the European convention gives the right to signatory Governments to repeal legislation at any time enforcing within domestic courts the liberties enshrined in the European Convention on Human Rights.
It is nonsense to suggest, as did the hon. Member for Orpington (Mr. Stanbrook) that somehow the supremacy of Parliament is being challenged. The convention invites Parliament, if it so wishes, to amend or repeal domestic legislation enforcing matters in the convention. Parliament will have the right, without a referendum or a two-thirds majority, to repeal the Bill if it is passed. It is a normal piece of domestic legislation.
§ Mr. Stanbrook
If that is the case, the proper function of Parliament is to remedy the grievance and the injustice as it appears on the domestic scene, and not to allow some long process to take place and perhaps to be forced to take some legislative action which, politically speaking, will not be appropriate to our democratic Parliament. Is it not right that it should be decided at this level rather than at a later level?
§ Mr. Lyons
The United Kingdom signed the European Convention on Human Rights. We undertook to enact legislation within our Parliament so that the rights in the convention would be enforceable within our domestic courts. We are in breach of our undertaking under the convention. The Government do not say outright, "We are against the Bill," because they know that their international obligation is to pass the Bill. Their signature is on the convention promising to do so.
The Government have had to resort to a series of subterfuges and delaying tactics by saying, "Let us have talks about talks." I fear that the Government really mean that they do not have the slightest intention of allowing the Bill to reach the statute book. They dare not say that they are opposed to it because that would be saying that they oppose their own signature on the convention. The Government are proceeding by a series of delays.
The Bill is important because it deals with the liberties of the individual. As hon. Members know, the protection of the liberties of the citizens of the United Kingdom and Colonies has always rested upon the triple tier of the media, Parliament and the courts. We must consider whether Parliament is as powerful as it once was in the defence of individual human liberties. Parliament today is composed mainly of two major parties representing powerful vested interests. The party representing each vested interest is reluctant to take action that damages its patron.
When referring to Parliament in days gone by, we mean the House of Commons and the House of Lords. But there are proposals for the abolition of the House of Lords and one day there may be no House of Lords. There is an enormously strong case for the reform of our second Chamber. There may be a strong case for abolishing it and replacing it with an elected assembly, if that is the wish of the British people or of Parliament. But there is no case 434 for endangering the power of Parliament and its role as the watchdog of individual liberties by simply reducing Parliament from two Chambers to one, full stop. That is a dangerous road to travel because a majority party sweeping into office will no longer be faced with a second Chamber examining, delaying or disagreeing with its proposals. With no second Chamber, we may be led directly to a confrontation much earlier between the House of Commons and the remaining hurdle—the signature of the British Sovereign.
Parliament is to some extent under threat nowadays and does not perform so effectively in the defence of human rights as it might. The media perform a valuable role, but we have seen a contraction in the numbers of newspapers and so on. That leaves us with the courts.
Traditionally, the courts have been said to defend the individual against oppression by the State. Curiously, under the Convention, the European Court is performing that role in conjunction with the domestic courts of Britain. People in Britain who feel their rights, as set out in the convention signed by the British Government, have been infringed, have to go to Strasbourg if they find no remedy in our domestic courts.
The Bill seeks to provide that people in this country should be able to go to the English courts before going to Strasbourg. We are not creating a new right to go to Strasbourg. That right exists. We allow people to go to Strasbourg. However, people in Britain should first be able to take a bite at the cherry in our courts and to use Strasbourg as an ultimate court of appeal, not as a court of first instance.
§ Mr. Grieve
Are there not manifest advantages in first being able to go to a British court in which British judges would deal with a conflict which would clearly have arisen between the principles enshrined in the convention and whatever Act was in question?
§ Mr. Lyons
That is the point that I am making. It is absurd to believe that European judges are more competent and fit to deal with individual rights and liberty in Britain than British judges. But that is the effect of the present situation. We bypass our judges in favour of European judges. In view of the high quality of the British judiciary, with its long training and ability to construe legislation, that seems absurd.
§ Mr. Stanbrook
Does not the hon. and learned Gentleman realise that what he has just said about Strasbourg being the final court of appeal contradicts the spirit of what he wants? English and Scottish judges will have their approach to the law determined by what they know the ultimate court of appeal will say, that ultimate court of appeal being staffed by and drawing its judicial traditions from a foreign source. The hon. and learned Gentleman said that the final court of appeal would be Strasbourg—not even this Parliament. That surely must be wrong.
§ Mr. Lyons
It seems impossible for succeeding Members on both sides of the House to persuade the hon. Member for Orpington (Mr. Stanbrook) that that is and has for many years been the position. That is why the Solicitor-General goes to Strasbourg and why The Sunday Times spent six or seven years waiting in Strasbourg. Reference has been made to delay in our courts, but that is nothing compared with the delay that we inflict on our 435 electors by making them wait for six years in Strasbourg. There is no comparable delay in the Royal Courts of Justice in the Strand.
Furthermore, the European Court is being deprived of the benefit of considering the judgments of British judges. Our judges could make a useful contribution that would have a leavening effect in the European Court. It is not right to suggest that the European Court is entirely foreign. There is a British contingent.
§ Mr. Nicholas Lyell (Hemel Hempstead)
Does the hon. and learned Gentleman agree that the court at Strasbourg is not the ultimate court of appeal in the sense that we understand the term in Britain? We now have an opportunity to go to the court at Strasbourg. The Bill proposes that the issue should be considered on the way up, as it were, by British judges, and the hon. and learned Gentleman suggests that that would be beneficial. However, in the end, a ruling at the court at Strasbourg has no effect on the private rights of the parties. It gives guidance to the high contracting parties, which is the nation itself. If the ruling appears to be adverse, it is for Britain or any other country ruled against, to introduce amending legislation. Is not that the accurate position?
§ Mr. Grieve
The hon. and learned Gentleman contends that there would be advantages in British judges hearing the matter first. If that had happened in the Isle of Man case, there might have been a different result. Many of us think that the decision reached by the European Court was not the right one. There might have been a different result if British courts had been able to pronounce upon it first.
§ Mr. Lyons
That may be so. I am not sure that I would have been pleased had the result been different. I am not prepared to accept that British judges would be less generous in their interpretation of human rights than the judges in Strasbourg.
Throughout the world, use of torture continues to grow. There is a continuing increase in the erosion of individual liberty in many countries. In many parts of the world we know that democracy is under pressure. The British Government are concerned, perhaps not energetically, in negotiating a new international convention on torture for which the International Commission of Jurists and the Swedish Government are pressing. Against that background it is important to ensure that international conventions, when signed, are implemented by the contracting parties.
The Soviet Government signed the Helsinki Final Act, and they put their signature to what is in effect a convention. On many occasions we have criticised that Government for not implementing the provisions of the Helsinki agreement on human rights. We observe that they put their signature to the accord. If we say of other countries that it is wrong to put one's signature to a convention and then not to implement the convention's provisions, it is right that we should not be hypocritical. 436 We must be seen to make that criticism with clean hands. When we sign a convention we must implement its provisions.
Our clear promise should be to implement the provisions in the interests not of foreigners but of the British people so that they may live in dignity, have an additional safeguard and protection against oppression and go their way as free men and women without fear. This Bill is an essential move in that direction, and that is why it should have its Second Reading.
§ Mr. Nicholas Lyell (Hemel Hempstead)
I welcome the Bill. It is all too rare that a Bill of constitutional importance gets anywhere in either House. Today's opportunity to begin to debate the Bill, which has twice passed through all its stages in the other place and has been considered there four times, is long overdue. Although I have some reservations about the Bill, I hope that we shall debate it as fully as possible and that it will go as far through the processes of consideration as all hon. Members wish to take it. Therefore, I hope that it will have its Second Reading today.
In other parts of the building I have often heard it said that if Parliament has an ability to screw up anything it has an ability to screw up constitutional measures. I sincerely hope that that will not be the fate of this constitutional Bill.
When the Bill was introduced by Lord Wade in another place in the autumn of 1979, I think for the third time, I think that the noble lord had wide ambitions. I should like to comment first on his two main ambitions. In one respect I agree with him and in the other I do not. The noble lord stated that the Bill's first object was to provide some defence against the encroachment on individual liberties by so many Governments in recent years. Another important objective was that of giving some protection against the dangers posed by minority Governments. Whilst I agree that the Bill may well provide real benefit in protecting individuals to a limited degree, I do not consider that Bills of Rights, by their genus, are adequate protection against legislative dictatorship.
Lord Carr of Hadley covered that aspect, saying that there were several ways of providing the necessary constitutional safeguards: reform of the House of Commons, reform of the House of Lords, and a Bill of Rights or a written constitution. He was right to say that a Bill of Rights was the least effective way of defending ourselves against an elective or legislative dictatorship.
Before I discuss the merits of the Bill, I should like to say something about what we should be doing in constitutional reform. Some have supported the Bill as a successor to Magna Carta or the great Bill of Rights of 1689. I may have misunderstood Lord Scarman, but I thought that—to my surprise—he put it in that category. Those who have said that documents of that nature in themselves provide for liberty deceive themselves. It was not the paper of Magna Carta and it was not the parchment of the Bill of Rights of 1689 that provided the liberties therein set out. It was the reality of power in the country at the time—the power of the barons in the early thirteenth century and the power of the aristocracy and landed gentry, and to some extent the growing merchant classes, in the late seventeenth century—that underlay them.
If we are to provide the constitutional anchor which we require, we must legislate to provide it. We must provide it in the other place. The proper way forward is to leave 437 the House of Commons as it stands, as the predominant legislative body, with a first-past-the-post system of election. However, we should provide as a constitutional anchor a House of Lords which is wholly or substantially elected on a basis of proportional representation. Subject to the same conventions which we enjoy today and which we allow to apply, and leaving executive government firmly in the hands, and under the control of, the House of Commons, we would provide a constitutional anchor by the full reflection of the whole spectrum of opinion in the House of Lords, backed by the natural authority which today can come only through the elective process.
§ Mr. Stanbrook
Can I believe my ears? Is my hon. Friend saying that 700 years of history has brought him to a conclusion which is completely at variance with the constitutional position today, in that this Chamber is democratically elected to express the will of the public? Is he saying that the House of Lords should take over that role?
§ Mr. Lyell
I suspect that history, whether over 700 years or a shorter period, is not my hon. Friend's strong point. If one considers the elective power of the Chamber, 700 years saw little of it. It is comparatively recent. Universal suffrage probably scarcely spans his lifetime.
It is a great strength that we are elected to this Chamber. However, as the Lord Chancellor has made wholly clear, there are dangers of an elected dictatorship. I do not wish my remarks to be considered as any sort of wets' charter because I believe in the strong leadership which we have seen from the Government. However, I do not believe that that strong leadership, for which the country has voted and for which I am confident it will vote when it next has the opportunity, is in any way diminished by the fact that the country also has an opportunity to express its broader views through its elected representatives in another place.
In the context of this debate I have developed that argument far enough. It is important to deal with it when we discuss such a major constitutional measure because I would hate it to be thought that a "Bill of Rights" of this nature would be a satisfactory, fundamental safeguard which could let us move away from those even more important aspects to which I have referred.
§ Mr. Beith
I entirely agree with the hon. Gentleman in the proposition that the Bill of Rights can do only part of the job of safeguarding liberties. I and my hon. Friends and many other people outside our party would regard electoral reform and an electoral system which did not allow electoral dictatorship when there was no majority behind the Government as another essential element. I make that point to underline that we cannot be thought to suppose that the Bill of Rights, important though it is, can be the sole safeguard.
§ Mr. Lyell
I am grateful to the hon. Member for Berwick-upon-Tweed (Mr. Beith), and I know that he goes further in his views on electoral reform than I do—if bringing proportional representation into this place can be regarded as going further, as most people appear to think. I do not fear it, but I do not think that it would be to the long-term benefit of our constitution. I have expressed my own views on that, and I am happy to feel that I am a disciple in this matter of the Lord Chancellor.
438 The Bill has some considerable strengths in providing a defence against any encroachment on individual liberties. It seeks to introduce into our domestic law what at the moment is simply a treaty obligation. The benefits which come from that have already been described by right hon. and hon. Members.
It would be of enormous benefit if our judges had an opportunity carefully to consider—from the High Court of first instance through the Court of Appeal to the House of Lords—the issues which at the moment are thrown, ill-digested and wholly unconsidered by our judiciary, before the Strasbourg court. It would be beneficial to individuals to have an opportunity to bring matters of this kind simply and much more swiftly before our courts. There is no doubt that it might provide us with real benefits in areas such as the closed shop and nationalisation without compensation. But it is in some ways a very far-reaching measure whose effect upon our domestic law needs to be studied with immense care.
I have not yet read the report of the Select Committee of the other place, and I have not yet had an opportunity to look at the evidence that was put before it. However, from what I have read of the debates in the other place, it seems to me that to a great extent even the noble and learned lords who brought their brilliant minds to bear on this matter dealt with it in a fairly broad brush way. I have a good deal of sympathy with some of the caveats put forward by Lord Elwyn-Jones in the recent debates and by those in the other place a year ago.
It is one of the fascinating features of this debate that the radicals on the topic sit on the Government and the Cross-Benches and that, on the whole, the conservatives sit on the Opposition Benches.
§ Mr. Lyell
It is a pleasure to see my hon. and learned Friend.
I agree with the hon. Member for Berwick-upon-Tweed that we should not allow the tone of the debate to drop in this way. We should endeavour to raise it to the high levels of courtesy which occupy such an enormous part of the debates in the other place.
§ Mr. Stanbrook
May I put this proposition to my hon. Friend? If the claims under this European—inspired convention are considered in the courts of this country, they will be decided at all stages by judges who will apply to the various concepts and the facts of the case principles of law which have been evolved in this country and based upon case law in this country, and based also upon an almost completely different approach to questions of law from that which will apply in Strasbourg, if and when a case goes there on appeal.
In Strasbourg, where we may have one representative on the bench of 11, the approach to the law is completely different from ours. It is inductive rather than deductive. I do not know quite how it can be expressed, but certainly it is quite foreign to our traditions. The chances are that the Strasbourg court will not agree with the final British court. It might be just as well, therefore, for the litigants to save a lot of money by going there direct, as they can now.
§ Mr. Lyell
I am charmed by hon. Friend's intervention. It is obvious that he is riding two horses and that they are beginning to move apart. He puts forward at one moment something of which one would expect him wholly to approve, that is, that our judges should apply the principles and nostrums developed through English law. Then he suggests that that is a disadvantage, because different principles may he applied in Strasbourg.
One of the benefits which would flow from the enactment of this legislation is that our judges would be bringing into the arena British principles of justice, and thereby helping to form the European approach. My hon. Friend raised in pejorative terms the fact that this legislation is of European origin—that being pejorative to him—but this country ratified the treaty as long ago as 1953. Although I suspect that my hon. Friend regrets that we did——
§ Mr. Stanbrook
Will my hon. Friend allow me to make it clear that I am a keen European? I voted for Britain's entry into the Common Market and would not want to be associated with those who would like to take Britain out. My objection to the Bill is that it is completely unworkable. It would be a disaster for Britain and its present arrangements for the redress of legitimate grievances, with which we should trust our own courts to deal.
§ Mr. Lyell
My hon. Friend brings me back to my main theme, and I am most grateful to him, knowing that we are at one in our approval of the European approach.
I was sounding a note of warning that the effects of the Bill may indeed prove to be very far-reaching. Clause 2 states that in relation to previous enactments which may be in any way inconsistent with the convention, theConvention and Protocols shall prevail".Clause 3 states that such future legislation shall be deemed to be subject to the provisions of the convention unless the contrary is expressly provided.
The reconciliation of the provisions of the convention and a large number of enactments of this country may lead to very considerable judicial difficulty. I underline the word "may". This House should look at these matters with 440 every bit as much care as is shown by noble and learned lords in another place. While I wish to see the legislation debated to the fullest possible extent through all the procedures of this House, I do not wish to see it go through in any sense on the nod, or before we understand—as fully as this House is capable of understanding anything—exactly what we are setting out to do.
I speak with humility. I have tried to study this subject. I take a close interest in constitutional matters. However, I do not know how far-reaching the legislation will prove to be. I have not been able to cull that from my reading of the debates in the other place. Before this legislation is placed on the statute book, we should consider that carefully.
The convention's operations could be beneficial in matters concerning the rights of individuals when an inflexible closed shop is in operatiom. It could also be beneficial if there were proposals for nationalisation without compensation or for nationalisation with an inadequate amount of compensation. My right hon. and learned Friend the Member for Hexham (Mr. Rippon) illustrated that point well. However, the convention deals with the whole gamut of human rights. It deals, for example, with the right to life, the right to privacy, freedom of schooling and freedom of education, freedom of association freedom of speech and freedom of the press. It deals with such a broad gamut of subjects that vast areas of our legislation might have to be considered in a fundamentally different way. As a result, a considerable body of judge-made law might come into existence which we had not anticipated.
I speak with caution. The arguments have been well canvassed in theory and in principle in the other place. However, they were not dealt with in sufficient detail on the Floor of the other place on Second Reading, or in Committee. We should pursue them carefully.
§ Sir Ronald Bell
My hon. Friend referred to judge-made law. However, will not a considerable number of decisions be political ones? For example, a case was raised about corporal punishment in the Isle of Man. Is that a matter for judge-made law? Does it not involve a political decision? Will not the effect of the Bill be to confer on our courts originally—and on appeal, on the European court—a range of political functions that have hitherto been discharged by Parliament and not by the courts?
§ Mr. Lyell
My hon. and learned Friend is right to the extent that questions that the judiciary has hitherto shrunk from may be brought into its sphere. The counter argument is that we took the political decision when we ratified the European Convention on Human Rights. Therefore, we cannot meet the objection simply by saying that political matters will be introduced into the courts. Before we decide whether to enact this legislation, we should consider more carefully its likely judicial effect.
§ Mr. Beith
Will not the hon. Gentleman agree that all the areas of law that he referred to are areas in which it would generally be assumed that British legal tradition would uphold the rights and freedoms involved? Will he also accept that it must be true for him, as it is for me, that under any Bill of Rights there will be a declaration of some right that he disagrees with? I have found that to be so at least once in the case of the European Convention on Human Rights. However, that does not diminish my support for the principle.
§ Mr. Lyell
I shall probably read what the hon. Gentleman said tomorrow. I think that I agree with everything that he said. I hope that I have made it clear that I am not unfriendly towards this legislation. However, I sincerely advise caution. On matters of such fundamental constitutional importance we should proceed with care. I do not say that in order to block these proceedings.
§ Mr. Stanbrook
My hon. Friend prayed in aid the antiquity of the European convention in that it goes back to 1953 when we, apparently, acceded to it. But does he not agree that the real problems have arisen since the right of individual petition? Until then it was possible for references to the court to be responsibly monitored or edited before they were made. Only in the last few years has the right of individual petition presented us with problems which arise because one individual is entitled to invoke the machinery and apparatus of the European human rights system.
§ Mr. Lyell
I am sorry to disagree with my hon. Friend once again. Such problems are much the same as the problems that arise when people are allowed free speech. They start speaking up and disagreeing. That is tiresome. The fact that they have now a limited opportunity to ventilate their grievances in court through the right of individual petition cannot be regarded as a source of the problem. It may highlight the need for better remedies.
I agree with the hon. Member for Berwick-upon-Tweed that most of those principles underly the justice that we dispense. The Sunday Times case on the injunction over the thalidomide debacle has been mentioned. Those who have read the European court's report on that case realise that the court took a restrictive view. Far from hammering this country about its treatment, the court was in full agreement with one of the major principles that the House of Lords adumbrated and criticised only on a narrow ground. That matter is now being considered in greater detail under the law of contempt. We do not necessarily have all that much to fear. I have made this point often enough to be boring, but before we proceed too fast and too far we must understand where we are going.
In my intervention in the speech of the hon. and learned Member for Bradford, West (Mr. Lyon), I said that the scheme of the legislation would be that it would give the opportunity for us to raise in our courts questions which can currently go to Strasbourg direct only by the right of individual petition. It would give our courts the opportunity to rule authoritatively to the highest level—the House of Lords. If the matter were subsequently taken to the court at Strasbourg, which took a different view, that would not alter the ruling in the litigation in this country but would put down a marker and state to the Government that they were expected to bring in some sort of amending legislation to bring our law, as authoritatively stated, back into line with the European convention.
§ Mr. John Ryman (Blyth)
I wish to join in the tributes paid to the hon. Member for Berwick-upon-Tweed (Mr. Beith) for introducing the Bill. I particularly wish to refer to the speech by the right hon. and learned Member for Hexham (Mr. Rippon) who is not at the moment in the 442 Chamber but who made an excellent contribution, as one would expect from him, putting succinctly and fairly the argument for a Bill of Rights and the hardships that it is sought to relieve. I shall be brief to enable the Solicitor-General to express the Government's point of view on the many points that have been raised.
I fully agree with the hon. Member for Hemel Hempstead (Mr. Lyell) that the introduction of the Bill into law will present difficulties of interpretation to our courts. I agree that there are many areas of uncertainty of interpretation and difficulties which our judges would have to examine. However, that seems to be no reason for shrinking away from pursuing this legislation if, on its merits, it is considered to be good. I respect the note of caution that the hon. Member for Hemel Hempstead injected into the debate, but I stress that I am a wholehearted supporter of the Bill of Rights legislation. I spoke on the subject a few Fridays ago in the House.
The crux of the issue is whether there should be a legally enforceable right of action in our domestic courts to safeguard those matters which come within the ambit of a Bill of Rights. The argument is conveniently summarised in the report of the Select Committee of the House of Lords which examined this matter. The Select Committee's deliberation took place before the 1979 general election and, therefore, before Lord Wade's last Bill. It heard a great deal of evidence and it summarised the position on page 12, paragraph 32.
The Committee summarised in this paragraph what it regarded as the most important arguments in favour of a Bill of rights:(a) the individual citizen might be better off, and could not be worse off,"—I emphasise that—if the European Convention were made part of United Kingdom law, since in the event of conflict between the Convention and other provisions of United Kingdom law whichever was more favourable to the plaintiff would prevail.The Committee appears to be saying that the individual has nothing to lose and possibly something to gain from the introduction of this legislation. It believes that the legislation could not make matters worse.
§ Mr. Nicholas Baker (Dorset, North)
On the question whether the introduction of a Bill of Rights is of advantage to the individual, does the hon. Gentleman think that the individual would benefit if uncertainty and increased legislation resulted from a Bill of this kind? Does he not think that there are also disadvantages to the individual?
§ Mr. Ryman
It is a matter of individual judgment. I recognise that there are arguments on both sides. I submit that the preponderance of argument is in favour of the individual citizen. That appears to be recommended by the Committee in paragraph 32 on page 12. In sub-paragraph (b), on page 13, the Committee says:Although when the United Kingdom acceded to the Convention and thus allowed the right of individual petition to the Court at Strasbourg, it was believed that our law had nothing to fear from any appeal to the Articles of the Convention, a number of doubts have emerged since that time. Experience has shown that there are a number of areas where British subjects must at present take the long road to Strasbourg as a court of first instance (as Golder did), since the domestic law provides no remedy in the courts of the United Kingdom.I shall not dwell on that point because there have already been several references to it.
Under sub-paragraph (c), the Committee says: 443Domesticating the Convention would provide the individual citizen with a positive and public declaration of the rights guaranteed him, thus complementing the United Kingdom traditionally 'negative' definition of his common law rights".I am not quite sure what that means. It goes on to say:This would have special value at the present time for the many individuals and subgroups who tend to feel impotent in the face of the size and complexity of public authorities which seem to dominate their lives.(d) The Commission and Court of Strasbourg were not established as 'a court of first instance', but rather as a 'court of appeal' to which the citizen can have recourse only when domestic procedures have been exhausted. Although there is no obligation on a Member State to incorporate the Convention, the Strasbourg Court has said that the intention of the drafters of the Convention that the rights set out should be directly secured to anyone within the jurisdiction of the contracting States finds a particularly faithful reflection in those instances where the Convention has been incorporated into domestic laws.It also deals with other matters on which I shall not dwell.
On page 13 under sub-paragraph (e) it is stated:An Act incorporating the Convention would not be an alternative to the continued exercise by Parliament of its traditional sovereignty"—That point has troubled some hon. Members.but would complement other Acts by which Parliament may wish to make law affecting human rights, including any amendment of the law that Parliament thinks desirable in the light of a United Kingdom court decision. Meanwhile, however, the domesticated convention would, in Lord Scarman's words 'freshen up the principles of the common law' and when read with the common law would 'provide the judges with a revised body of legal principle upon which they could go on slowly developing the law, case by case, as they have been doing for centuries' without waiting until the opportunity for legislation occurred.Under sub-paragraph (f), the Committee deals with other matters, while sub-paragraph (g) says:the Act would constitute a framework of human rights guaranteed throughout the United Kingdom and this would have special value if Scottish and Welsh Assemblies are established with powers devolved from Westminster to ensure the exercise of such powers.The rest of the Committee's recommendations deal with matters to which I shall not refer.
Paragraph 53 on page 17 states:The Committee are agreed in concluding that, if there is to be a Bill of Rights, it should be a Bill based on the European Convention; and in the event of such a Bill proceeding, there should be some changes in the Bill as introducedby various members of the other House.
That is the background of the case against which a distinguished number of lawyers and peers in the other place sifted the evidence of the Select Committee before coming to various conclusions. One should not discard lightly any of those recommendations. In my submission, there are cogent arguments contained in those recommendations of the Select Committee report for having a Bill of Rights. I support them wholeheartedly.
The arguments that have been properly ventilated by Conservative Members today about difficulties of interpretation and the sovereignty of Parliament are legitimate, but I believe that the argument for a Bill of Rights is overwhelming. If that is so, and those of us who support the Bill are right, what will now happen?
Although it goes against the grain, I must admit that this Government have been more forthcoming on law reform than their predecessors. I have to say that, because the facts demonstrate that it is true. I vividly remember pressing the Attorney-General during the last Parliament in an Adjournment debate on the report of the Phillimore committee on the law of contempt. I asked him what the 444 Government were going to do about it. I was fobbed off with excuse after excuse, although by then the report was very old and a discussion paper had been issued. The excuse at the time was: "We are now awaiting the decision of the European Court on The Sunday Times case". Possibly this Administration were lucky in that they came to power after that case was decided. Nevertheless, to be fair, this Administration have shown considerably more expedition in introducing law reform legislation than did their predecessors in office.
Having thus complimented the Administration, I hope that they will now show the same enthusiasm and speed in supporting legislation for a Bill of Rights. I do not have time to mention the many speeches that have been made on the subject, but many Conservative Members have waxed eloquent and enthusiastic for many years in support of a Bill of Rights. Until now, I have been disappointed in never having the opportunity of a full day's debate on the subject of a Bill of Rights, because successive Leaders of the House have persistently refused to hold such a debate.
The right hon. and learned Member for Hexham (Mr. Rippon) is to be congratulated on the initiative he displayed in his early-day motion and in the letter that he wrote to The Times complaining about it. Although we have not had a full day's debate, this being a Friday, I welcome the opportunity that has been afforded today, and I am grateful for the presence of a Law Officer who is to respond on behalf of the Government on one of the most important constitutional issues of our time.
Many platitudes are spoken in the House about what is important and what is not important, and many historic occasions are mentioned, but I suggest with humility that the enactment into law of a Bill of Rights is the most important and fundamental constitutional reform ever undertaken by any Administration. To that extent, this Government are to be congratulated on having shown more sympathy and speed in such law reform than previous Administrations.
I shall not take up any more of the House's time, because we are all anxious to hear the views of the Solicitor-General. I hope that he will tell us when we can expect legislation, in the sense that the Bill will be supported by the Government and sufficient facilities afforded to enable the measure to reach the statute book.
A number of detailed criticisms have properly been made of the Bill, and a number of difficulties have been pointed out. They are all Committee points. I ask the Government to enable the Bill to have a Second Reading and to let the Committee examine the points and details. I hope that they will give the Bill sufficient Government time to enable it to complete its passage on to the statute book.
§ The Solicitor-General (Sir Ian Percival)
I hope that it is for the convenience of the House if I intervene now. I speak in three capacities—first, on behalf of the Government. Secondly, I have the liberty to indicate personal views, as did my noble and learned Friend the Lord Chancellor in another place. Thirdly, I have the honour to be one of the Law Officers of the Crown. I have had practical experience of how the European Convention on Human Rights works. I hope to make some contribution to the debate in that rather special capacity. For a long time, Law Officers have regarded it as one of the most 445 important traditions of their office that they should have a general interest in the protection of the liberty of the subject.
I am pleased that the House has been given the opportunity to debate the Bill. I express my appreciation to the hon. Member for Berwick-upon-Tweed (Mr. Beith) for introducing the Bill, and also for the manner in which he did so. I thank him for his courteous reference to my right hon. and learned Friend the Attorney-General who, as he rightly said, is otherwise occupied or he probably would be here.
I thank my right hon. and learned Friend the Member for Hexham (Mr. Rippon) for his contribution to making time available for the debate and also for the way in which he made his points. I pay tribute to the noble Lord, Lord Wade who, with his dedication to the subject, was with us for part of our proceedings. No doubt he will study the remainder with interest. He has shown a perseverance which should be an object to us all.
Glad as I am that the Bill is being discussed, I am sorry that it is before such a thin House. That is bound to make our discussion unrepresentative. I know that right hon. and hon. Members have gone to much trouble to be here because they did not expect the debate. We all have other commitments. It is not surprising that those who feel most strongly that something must be done make the greatest effort to be here when the opportunity presents itself.
I am sure that the hon. Member for Berwick-upon-Tweed and other hon. Members have in mind the outstanding feature that distinguished people with valuable views to offer differ. The matter cuts right across parties. One well-known member of the Liberal Party, Lord Morris of Borth-y-Gest—a much-respected Law Lord until his recent death—took part in the early debates in another place. He sat so long on the Bench that his active political days were long past. Everyone would have taken the view that he was always liberal. He expressed great concern about the problems, some of which I shall refer to later.
I wish to mention one other person, mainly to pay tribute to him in this area but also to remind the House of his views. I refer to Professor James Fawcett. There cannot be any man alive who has shown greater dedication to the cause of human rights. He has devoted much of his life to it. No Englishman, Scotsman, Welshman or Irishman knows more about how the convention works when trying to spell out of it justiciable issues and decide them than Professor Fawcett, because he has been the Chairman of the Commission for so long. It is not conclusive—he would not expect it to be conclusive—but it is as well to remember that he is on record as expressing grave doubts about the value of doing what is sought to be done now.
I am sure that the House would like me to pay tribute to what Professor Fawcett has done in this area. Not many have done more. It does not follow that he is right, but it is a good opportunity to recognise what he has done.
Let me get out of the way as quickly as possible the Government's position because I want to get on to other matters which I think will interest the House. The Government's position is clear. Some hon. Members may wish that it were not what it is, but itis clear. The Government are not committed one way or the other. I assure the House that a good deal of work has gone on to identify all the advantages and issues and to think them through. All too often we have good ideas, but we do not 446 think them through. Often that is because we do not have the time or the facilities. However, in readiness for talks, when they occur, a great deal of ground work has been done.
§ Mr. Beith
A great deal of ground work has been done. It has gone on in Departments under successive Governments. In 1976, when Mr. Roy Jenkins was Home Secretary, the Government issued a discussion paper setting out the arguments for and against many of these detailed points to encourage discussion. I hope that the Solicitor-General will recognise that some of us believe that progress has been slow since then.
§ The Solicitor-General
I do not quarrel with that. These are matters of opinion. There are many matters on which I wish we could proceed faster, but other people and parties do not share that view. The Government have not been sitting back wasting time. Within the Government machine the necessary prepartory work for assisting Ministers has been and still is being done. Views expressed in the debate will go into that consideration. That is why we welcome the debate.
§ Mr. Rippon
Will my hon. and learned Friend explain the Government's attitude to article 13 of the Convention, which states:Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."?Does he agree that, whatever view he may take on how things are working out, there is a commitment under article 13 that there should be a remedy before a national authority?
§ The Solicitor-General
I hope that I shall be able to develop some argument of my own. I think that will be the best contribution that I can make. This kind of debate enables hon. Members to put their idea into the pool. As with so many other points——
§ The Solicitor-General
I am just about to do so. I hope that my right hon. and learned Friend will permit me to develop my argument. He has been at this Box many times. He no doubt resented as much as others did references to the payroll. He is aware how much easier it is if one is allowed to develop one's argument. I have article 13 down, but I am not sure at this moment on which page of my notes.
Article 13 cannot be dealt with in a sentence. It occupied a good deal of time in the Strasbourg proceedings in which I appeared. There are two lines of jurisprudence at Strasbourg at the moment. One is typified by the Klass case—the telephone tapping in Germany—which is a very special case. The other is line of cases to the contrary of what my right hon. and learned Friend said. Let us wait and see what the Court—it is the Court and not the Commission that is dealing with the railwaymens' case—says about article 13. Until that is known, I beg right hon. and hon. Members not to presume that the issue is simple and that it can be disposed of as my right hon. and learned Friend has suggested.
The Government are committed in the Conservative manifesto to discuss with all parties a possible Bill of Rights. That remains their wish. It is easy to pour scorn on that wish, but there have been references in the debate 447 to the impossibility of making an entrenchment in our law. I think that we all accept that a Bill of Rights in the sense in which many of us understand it—namely, a schedule of rights which no one can be denied—cannot be made permanent in the United Kingdom.
The hon. and learned Member for Bradford, West (Mr. Lyons) referred to one of Lord Salmon's speeches in another place and his desire to see a "statute of liberty". That is why he cast doubt on the usefulness of what is now proposed. To a large extent it is a delusion because it would not afford the citizen anything like the rights that would be afforded by an entrenched position.
The hon. Member for Berwick-upon-Tweed said that it is far too easy for transient majorities to abrogate rights. I agree with him. It would not be made any more difficult for them to do so by the Bill. The Canadian experience is a good example. If a Government are legislating and they do not wish to be encumbered by a Bill of Rights, they may include the provision "notwithstanding anything contained in such and such a Bill". Let us consider the advantages but let us not assume advantages that are not there.
§ Mr. Michael Grylls (Surrey, North-West)
My right hon. and learned Friend is right technically, but a totalitarian Government would be flushed out if they felt it necessary to put such a provision into a measure that they put before the House. It would be a horrific admission of acting against human rights if the Government of the day had to incorporate such a provision. I should prefer a Government to have to do that openly.
§ The Solicitor-General
My hon. Friend is over-simplifying. I should like a real Bill of Rights to contain the right to have private education guaranteed for ever. I should like private choice in other areas to be guaranteed for ever. However, if the Opposition were to form a Government they would without hesitation reverse provisions of that sort. They would feel no shame in doing so. They would consider it their duty to do so. My hon. Friend's observation applies only to milk and water rights. Of course, either side of the House would be happy to change any provision with more meat in it if it had the chance to do so.
I beg hon. Members to accept what I am saying in the spirit in which it is offered. Let us not delude ourselves into thinking that we would be getting such a great deal by introducing such a Bill by getting rid of many major things that so many of us would dearly like to see disappear.
The hon. Member for Berwick-upon-Tweed said that we want these provisions to be straightforward, understandable and clear to the British people. That is almost like saying that the way in which a shuttle craft leaves the earth should be straightforward, clear and understandable to the British people. However much we may wish to have straightforwardness and clearness in certain matters it is not always possible to achieve it.
I stress the need for all party talks. Only to the extent that matters are agreed does my hon. Friend's proposition have any force. With an agreed programme, if anyone departs from it that enables the other party, which wants to adhere to it, to point out that it was agreed and should not be changed.
§ The Solicitor-General
I am not trying to avoid anything; I am trying to get on. But dealing with that question is not my brief. It will not help if the hon. Gentleman takes that attitude. I hope he will not, because I want to get on to matters that may help in the argument. The hon. Gentleman knows, as I know, that such questions are arranged through the usual channels. I know of nothing to stop him or any other party pressing the appropriate people in the Government to get on with it.
There are two reasons why the talks are essential. I have mentioned one—the fact that the greater the measure of agreement, the more the proposition to which my hon. Friend referred holds force. The other is that we get the matter right. I want to say something that I hope will contribute to that. I have particular advice to offer, because in the past two years I have had something to do with the operation.
First, I should like to pay another tribute, this time to the part played in these debates by my noble and learned Friend the Lord Chancellor, who has spoken and written on many occasions, with his usual elegance of language and eloquence of argument, without hesitation or qualification, in favour of a Bill along these lines. It is unlikely that I shall be able to disguise the fact that although my objective is identical with my noble and learned Friend's, I see greater difficulties than he does.
All hon. Members are agreed that the rights and freedoms of the individual should be guaranteed. But that is almost the limit of the agreement, because there are as many views about what those rights are as there are individuals. There is a broad division between political parties, between those in politics who, when they talk about the right of the individual, are talking about the collective right of individuals to band together to protect their common rights, and those who believe in the rights of the individual against the various combinations.
We all share the same objectives, although we may all have different views once we get down to detail, when we try to itemise the ways in which that objective should be achieved. We must be careful not to fall into the syllogistic error of saying that because we all want to do something and the Bill is something, we must do it.
Many arguments have been advanced both ways I had intended to try to summarise them, but I shall simply refer hon. Members to the speech of my noble and learned Friend the Lord Advocate in the most recent debate in another place, when he briefly summarised the main pros and cons. I prefer to go in to more detail on particular points.
There are those who say that the individual must surely be better off with a Bill of Rights. I say that we must examine the position closely and ask ourselves whether in fact he would be better off, to what extent, and what the price paid would be, not by the Government—I am not concerned about that—but by individuals, for such improvements as result.
We should not undersell our position. We are always trying to improve the position, but a large proportion of the world would be glad to have the protection afforded by our common law. It is a philosophy as much as a system of law. It is a philosophy that says "We, the courts, are trying to do what is fair." It leads the courts to say that their principal task is to protect the weak from the strong—the strong can look after themselves. It is a philosophy that says nobody should be liable to somebody else except on the basis of contract or tort. When we are thinking of 449 prospective plaintiffs, we can be generous and we can think that we should give liability on a wider basis. When we are thinking of ourselves as defendents, we are glad that the philosophy of the common law is that we shall not be found liable to pay something to someone else unless it arises out of a contract or tort.
We start with all those advantages. Some say that if we had a statement of rights the individual would know better where he stands. Others say that he would be sorely confused. If the construction of the convention were as clear as a bell and everyone could understand it, the individual would have a positive and clear declaration of his rights. If in fact it is far from clear, there is some force in the argument that one is merely adding confusion to confusion.
All the arguments can be easily overstated. I shall try not to overstate them either way. I shall remind the House of what the Select Committee said in paragraph 30 of its report:in any country, whatever its constitution, the existence or absence of legislation in the nature of a Bill of Rights can in practice play only a relatively minor part in the protection of human rights.As everyone has professed to admire what was said by the Committee, let them hear this proposition as well:What is important above all, is a country's political climate and traditions. This is, the Committee think, common ground among both those who favour and those who oppose a Bill of Rights, and they received no evidence that human rights are in practice better protected in countries which have a code of fundamental rights embodied in their law than they are in the United Kingdom.I shall refer to some practical points. Some might say that they are points of law—of course they are. However, in my book, the law has no purpose at all save in its practical application, in how it works, how it affects people's rights and how it enables them to do this, that or the other. Those are essentially practical matters.
The Lord Chancellor places great importance on the point that one of the reasons for doing what is proposed is that the construction of statutes in this country is so confused and confusing. It is said that if we were to have the Bill, the courts would have a clear guide to construction. Of course, the Lord Chancellor is right. There are cases in which the courts have to struggle to put a meaning on the statute, but that is nothing to do with the rules of construction. That is because we happen to have passed legislation which is without a clear meaning; it is incomprehensible. This is extremely relevant when we are discussing safeguarding the liberty of the subject. The two factors which individually and collectively have impinged upon the liberty of the subject as much as anything in the past 20 years are the volume of legislation, which is oppressive in itself, and the quality of it, which is further oppressive.
We do not want to look for the solution to all those problems in a Bill such as this. The solution to those problems entails much greater self-denial and not, as some people say, greater expertise by the draftsman though of course, some drafting can be improved. We must recognise that it happens because either someone is legislating in a hurry and has not thought it through properly so that the draftsman does not get the proper instructions, or that we change it and get it wrong as it is going through the House.
§ Mr. Nicholas Baker
Some of us who came into this House relatively recently are still expecting the promised day of very much less legislation. Although I am not of the view that the Bill is the right approach to this matter, I think that the subject of human rights is extremely important and that it would be a much more profitable and suitable subject for an extended debate on the very matters mentioned by my right hon. and learned Friend about which rights should be protected. Perhaps my right hon. and learned Friend can give us some guarantee of time.
§ The Solicitor-General
I cannot give any guarantee. I am expressing opinions fairly freely. They are not new. I have expressed the same opinions year in and year out. We need to look at the fundamentals. We need to look at what is happening that is oppressive and try to put it right.
My hon. Friend the Member for Dorset, North (Mr. Baker) complained about the volume of legislation. Although I have been here a good deal longer than he has, I have shared the view expressed by my hon. Friend without interval all through my time here. When will the promised day come when there is less legislation?
This again is a practical matter. If we do not do what we have committed ourselves to do, we are accused of having failed to fulfil our pledges. If we fulfil them, there is more legislation in our programme than we want to see. We have to hold the balance.
I hope that I have said enough and said it freely enough to show where my sympathies lie in this respect. I speak for every member of the Government in saying that we recognise that the quantity of legislation should be reduced and that the quality of it should be improved. If we achieved both objectives, we would do more to assist the liberty of the subject than anything else that I can think of.
§ Mr. Ryman
Before the right hon. and learned Gentleman leaves the subject of legislation and its volume and quality, may I ask him whether he is familiar with the Law of Property Act 1925, one section of which says that a short lease is a lease which is not a long lease?
§ The Solicitor-General
That seems to me to be more clear than a number of other quotations that I have heard.
I do not believe that passing this Bill would have any practical beneficial consequences for the solution of the problems that I have outlined.
I might point out that I am having continually to omit parts of my speech to allow for interventions. I do not complain about that. I shall do my best to answer interventions as they arise. However, I do not want to continue talking for the remainder of the time available to us. I want other right hon. and hon. Members to have the chance to intervene. So, if I am to answer interventions, I have to cut out other parts of my speech. If in so doing I break the logical sequence of my argument, I can only ask the House to forgive me.
I want the House to look at the Bill in practical terms. The closing words of clause 1 areshall be enforceable by action in the Courts of the United Kingdom".What courts, and by whom? At the moment, I do not think that it is generally realised that under the convention no applicant has any standing in the court. The procedure under the convention is that the person who thinks that he has suffered a wrong goes to the commission. That is a sifting process. It would be very wrong to suppose that every case that goes to the commission is of the weight of 451 the cases that have been mentioned. I do not wish to be misunderstood here, because I attach enormous weight to those cases, but it is right that it should be known that 90 per cent. of the cases that go to the commission are thrown out, without the Government even being asked for a statement in answer.
Where the commission feels that there is a case to answer, the commission takes up the running and becomes a party to the proceedings in the court. The applicant has no right to refer proceedings to the court. I thought that was strange when I first came across it, but that is what the convention provides. The applicant, I repeat, has no right to ask for something to be referred to the court. The commission or the Government in question have that right.
I ask hon. Members to recognise that there is an enormous gap here. As the Bill stands, it would mean that any person who thought that he had suffered a wrong, or that he had suffered as a result of a breach of one of the articles of the convention, could go to the court. But who would he be able to take to court? Under the convention, only a Government can be brought before the court.
There is an interesting and important question in the case that is now before the court, namely, whether a Government can be held responsible for the acts of a nationalised body. That has not yet been decided: indeed, it may not be decided in the present case.
What is it that the hon. Members are seeking in this supposedly very useful process? Are they saying that any individual who thinks that someone has interfered with his rights under the convention can take such a person to court? If that is not what hon. Members have in mind, what are they thinking about? If it is only a matter of taking the Government to court, that is another matter. But, even so, numerous questions arise.
There has been reference to terrible delays. But at least there is now the sifting process, so that 90 per cent. of the cases are got out of the way, so that the ones which really matter can be proceeded with. I do not know whether it is suggested that there should be such a sifting process here. Even if there were, and the remaining cases went right through the process up to the House of Lords, what would happen? If one side or the other did not like the decision—as is usually the case—the matter could go to Strasbourg. So let us not delude ourselves that we would have here a definitive speedy or quicker process.
I should like to refer particularly to the railwaymen's case. I take this opportunity, as part of my argument, to remove some of the current misunderstandings about it. In that case, as the legal adviser to the Government, as defendant, I and those assisting me reduced the issues to the absolute minimum. On all the merits, we were on the side of the applicant. There was no difficulty about it, because every member of the Government who is concerned in the matter—and I in particular—had been as vociferous as anybody in condemning both the legislation that was before the Strasbourg court and the conduct of British Rail and the unions concerned in praying in aid that legislation. Time and again we have described it as disgraceful. I did so again in Strasbourg in March, in the name of Her Majesty's Government. Usually, if a country is found to be in breach by the European Court it must make a change in the law to ensure that there are no further breaches. We moved in advance of that. We changed the law to remove the legislation that is the subject of those proceedings. Therefore, that issue was got out of the way.
452 There were only two issues left. We were on the side of the railwaymen in everything and made no bones about it. One of the remaining issues concerned the Government's responsibility for the acts of British Rail. I shall not trouble the House with any part of that argument. However, as things stand, hon. Members will realise the importance of a decision on the extent to which a Government are liable for the day-to-day acts of a public authority. The rest of the argument was reduced to the meaning of article 11(1). Does that article mean that no one can be compelled to join a union, or does it mean that no one can stop a person joining one? Does it mean one or the other, or both?
We all claim that we would know how to run a railway if only we had the chance. We cannot see why no one knows how to run one. Similarly, everybody knows what the article means. As in "Alice in Wonderland", it means what it is intended to mean. I understand that. In our own ways, we all want to feel that there is protection for something. However, just because one wants something it is no good saying that one has got it.
As British representatives acting in that court, we lawyers could put forward only what they believed to be the correct interpretation of the measure. To do anything else would be like going to court and saying to oneself "I know what the provision means, but it is inconvenient and so I shall argue something else". We need only state the proposition to see its absurdity. Therefore, the argument was reduced to a minimum and to the first limb of article 11. The provision thus guarantees freedom of association to form and join trade unions.
If our interpretation turns out to be wrong, that will be—as far as the Government are concerned—the end of the argument. We did not choose—indeed, we deliberately refused—to rely on the second paragraph of article 11. Article 11(2) states:No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.The Labour Government argued, no doubt sincerely, that the measures that were the subject of that inquiry were necessary for the protection of the rights and freedoms of others. My Government do not believe that. Therefore, I said that we would not rely on that defence, because we did not believe that those laws were essential for the protection of anyone. On the contrary I said that we regarded them as inequitable and unconscionable. Even having reduced the issues in that way, there were two days of argument and a mass of papers. I have set out the case. Hon. Members should try to translate it into practical terms, assuming that the railwaymen had a right to go to court here. Against whom would the case be brought and in what court? Should it be brought against British Rail? If so, would it have the defence given to a Government under paragraph (2)? That is enormously important.
What about construction? I do not quarrel with the proposition. I too have more admiration for the judges of this country than for any other. They are the finest and enjoy a tremendous reputation world wide. I am glad that tributes have been paid to them by all hon. Members, but it is idle to imagine that they will produce an immediate answer to that question. In Strasbourg there were 21 judges. I pay tribute to them. Before I went I wondered how a court of 21 judges could look anything like a court. 453 How could they preserve the atmosphere we associate with a court? I pay tribute to the way that court conducts its proceedings because it is run with all the dignity and atmosphere that contributes so much to our courts. What would be gained? Certainly not a quicker and more definitive construction and that is what I want right hon. and hon. Gentlemen to consider.
If the Government had been defending that case in an English court that would have been the only issue.
Suppose there had not been a change of Government. The Labour Government would have said "Even if the legislation is an interference with the rights guaranteed under article 11(1)" we say that this is a restriction placed on the exercise of those rights by law and such as is necessary in a democratic society for the protection of the rights and freedoms of others. That is undoubtedly what a Labour Government would have argued. In other circumstances if they were defending a law, they would say the same thing because I am sure that they would not pass a law unless they felt that it was for one of those purposes.
Where does any court stand in that event? What is the court in this country to do? Is it to say "We shall decide whether those restrictions were necessary for the protection of the rights and freedoms of others?" That is a political judgment. All judgments about the balance of interests of individuals and groups are political judgments for which the national Government must be answerable. However, I do not wish to go deeply into that but just to pose those practical questions.
There may be an answer. I confess that I do not see it. We need a solution to help the people we hope to protect. Together we must ensure that we shall succeed and not, which is just as likely, expect the courts of this country to decide issues that we should not ask them to decide.
§ The Solicitor-General
My right hon. and learned Friend misunderstands me. I am talking about the articles which have exceptions clauses. The article about torture has no such exception. I am concerned about the more common cases—the right to privacy, for example. The right to privacy provision, under which the homosexual cases are taken to Strasbourg, has an exceptions clause. Conscience and freedom of association are major provisions that are likely to be prayed in aid more often where there is the qualification of the right which enables the Government—if they think it necessary for the protection of various interests—to restrict the full force of the right given in the first paragraph of the article. Article 11 is a practical and actual illustration of the problem. If we do as the Bill proposes without providing for that we shall be tossing into the laps of our courts issues which we should not impose upon them.
§ Mr. Beith
This is the point that the right hon. and learned Member for Hexham (Mr. Rippon) raised. Although article 3 about torture contains no exceptions it is governed by article 15 which allows for derogation in an emergency. A court could well be asked to consider whether the derogation was strictly required by the exigencies of the situation. Courts are already accustomed to facing questions of that kind. Is there any way under present or future procedures whereby that arrangement could or should be avoided?
§ The Solicitor-General
I do not criticise the hon. Gentleman. We are all trying to hurry. Under article 15 paragraph (2) it is provided that:No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4"—article 3 is the one about torture—shall be made under this provision.I beg hon. Members to face up to the facts. What I have been saying is not theory. I am explaining how these issues arise, and the problem that I am posing is one of substance. If we can find the answer to it we should try, but do not let us believe that by concentrating on some other article the problem will go away. The problem that I have posed is a practical one and it arises under many articles.
None of these propositions is conclusive. Maybe we can find articles for them all. However, we should be concentrating now on the practical elements. Most of us know what other people's objectives are, and they are nearly always much the same as our own. We know the theoretical considerations. Let us get down to the practical questions that have to be answered before any experiment or idea such as that we are considering is translated into fact.
The sooner we pass from the general to the particular and face up to these practical problems the sooner we shall be in a position to do something about legislating to meet the objectives we all share.
§ Mr. Michael Grylls (Surrey, North-West)
I think that I am the only non-lawyer to speak in the debate. I must therefore be raving mad. However, I wanted to contribute, and a non-lawyer is as entitled as any lawyer to speak about human rights. My hon. and learned Friend the Solicitor-General spoke of moving to the particular. I have carefully read the remarks of Lord Scarman, Lord Salmon and others in another place, supported on 12 occasions by the Lord Chancellor. I therefore think that we should most carefully examine the Bill and seek to make it law.
Having listened to the debate I feel that there is a need for a further defence of citizens' rights in Britain. It is not good enough for our citizens to have to go to Europe to obtain satisfaction when they feel they have suffered a violation of their human rights.
My hon. and learned Friend said that he wanted to observe what was happening and put it right. I take one example of an event under the Labour Government that the present Government have so far failed to remedy. The case is a good illustration of the reason why a Bill of Rights should be enacted. It is the example with which the hon. Member for Berwick-upon-Tweed (Mr. Beith) started his speech—the disgraceful circumstances that surround the Aircraft and Shipbuilding Industries Act 1977 and the compensation paid under it. Virtually every member of the present Government said—shortage of time prevents me quoting them—that the terms of compensation offered were disgraceful and grossly inadequate.
The Government have accepted the Labour Government's legislation and have refused to do anything about it. I am bound to say to my hon. and learned Friend, although his Department is not responsible, that I believe that lack of action on this cause—it is a real human right—is a shameful stain on the character of the Government which, in every other direction, I support wholeheartedly. It is a shameful stain to have done nothing 455 about the matter and simply to have looked the other way, saying "That is not our problem. It was done by the previous Government."
It is this Government's problem to uphold the human right of someone who has suffered in this situation. My hon. Friend the Member for Galloway (Mr. Lang) put the matter well in the debate on 29 October 1980, when he said:If they said that the terms were fair and that they would do nothing, that would be wrong but honourable. If they said that the terms were grossly unfair and that they would do something about it, that would be right and honourable. But if they say, as they have done, that the terms are grossly unfair but that they intend to do nothing about it, that seems to me to produce the worst of all possible worlds."—[Official Report, 29 October 1980; Vol. 991, c. 662.]That is the situation that we face. If the Bill of Rights Bill had been enacted the shareholders affected by the terms of compensation under the 1977 Act would have had the right to go to a court in Britain and to put their case to a British judge. They have suffered from a lack of human rights in their attempts to get their assets restored to them. It is disgraceful that these people should have to seek to go to Europe to get the situation put right. Lord Scarman was right when he said, on 4 December:I can see no sure way of meeting our obligation unless we enact this Bill"—meaning the Bill that we are discussing today—or in some other way introduce the European Convention into our municipal law".—[Official Report, House of Lords, 4 December 1980; Vol. 415, c. 543.]I believe that my hon. and learned Friend the Solicitor-General was not positive enough in saying that the Government want to defend human rights when people have suffered under them. The Government have to examine this issue. It seems clear that a court in Britain could deal with the suffering incurred by these people through the totally inadequate compensation paid to them, described so eloquently by my right hon. and learned Friend the Member for Hexham (Mr. Rippon).
§ The Solicitor-General
I recognise that, partly because of the time taken by my own speech, my hon. Friend is left with little time to develop his remarks. The record of this Government in human rights should not be criticised in the manner adopted by him. The danger is that he assumes that if only this Bill were law the matters in which he is interested—I understand his interest—would be clarified. That is not the case.
§ Mr. Grylls
At least these people would have a remedy in Britain. That is the issue with which the debate is concerned. These people have to go to Strasbourg when the remedy could be provided here. No one of course can be certain of a court decision in Britain. Is it, however, right that people should have to go abroad?
In many areas the Government may have done well on human rights. I believe, however, that any independent observer would agree that the terms of compensation accepted by this Government through their refusal to overturn them are a stain on the character of the Government. There is no way in which he can buck the issue, because that is the situation
The Secretary of State for the Environment said that the terms were disgraceful. The Minister for Local Government and Environmental Services said that the terms for compensation were disgraceful. Yet my hon. and learned Friend says that he is satisfied, because we have a good record on human rights. Our record is not good. 456 It is not good enough simply to look the other way and say "This has nothing to do with us". It has. We should put down a marker. If a future Labour Government were to nationalise an industry and give it no compensation, as some Labour Members wish, the Labour Government would be able to say "They did not do anything about it in 1981; why should we do anything about it in 1988?"—or whenever that unhappy situation might occur. We as a Government should put down a clear marker that if a wrong is done to an individual, as happened under that Act, we shall right that wrong as soon as we get back into power. To our shame, we have refused to do that during the past two years.
It is never too late. The Government should do something, either by way of direct legislation to ensure that people receive decent compensation or at least by saying that they will give a fair wind to this Bill of Rights.
My hon. and learned Friend's speech was a fascinating and interesting legal description of the situation but it was not the response of a Government who should come off the fence and decide whether to enact something that is in the interests of human rights in Britain. His speech, though interesting, was disappointing and wishy-washy. To those of us who are interested in this Bill he has given no hope that the Government are prepared to have meaningful talks with the Labour Party and the Liberal Party to obtain a measure of agreement on a Bill of Rights of this nature, which could perhaps last for ever.
I ask my hon. and learned Friend to tell the Government that the House would like them to take a more positive view of this Bill. We do not want merely an interesting and learned treatise on the law as it stands; we expect the Government to take executive action, rather than give lectures and treatises on the state of the law. I reiterate what I said about compensation, because I hope that the blot on the character of this Government can be removed as quickly as possible. If the Government act, we shall have made some progress today.
§ Mr. Ivor Stanbrook (Orpington)
The longer one is a Member of Parliament the more one is astonished at the willingness of distinguished colleagues to heap further burdens upon their fellow men in the course of misguided idealism. I accept that my hon. Friend the Member for Surrey, North-West (Mr. Grylls) had very little time in which to speak, but he has just made a case in which it appears that he wants the principles of the European Convention on Human Rights be applied in our domestic courts for the purpose of righting a particular grievance. That is his error.
§ Mr. Stanbrook
It is about this place and its ability to deal with grievances of that kind. There are such grievances, and I agree with my hon. Friend about the injustice. However, he is anxious for the European Convention and many basic and abstract principles to be applied in our courts of law—principles which are foreign to their tradition—because he is anxious that this Government take a certain course on the Bill.
Grievances are deal with under our system. In certain cases there are political reasons why they are not deal with in the way that we want. We have already heard reference to the Phillimore report. The hon. Member for Blyth (Mr. 457 Ryman) said that the Labour Government did not implement the provisions of that report but that the Conservative Government were doing so through the Contempt of Court [Lords] Bill. Whatever one may think about the provisions of that Bill, it is an example of our democracy working in practice——
§ It being half-past Two o'clock, the debate stood adjourned.
§ Debate to be resumed upon Friday 15 May.