European Human Rights Convention (Hansard, 13 December 1983)

§ Mr. Robert Maclennan (Caithness and Sutherland)

I beg to move, That leave be given to bring in a Bill to give effect to the European Convention for the Protection of Human Rights and Fundamental Freedoms and to Protocol No. 1 and Protocol No. 4 thereto and to give to the rights and freedoms guaranteed thereby the force of law in the United Kingdom. The European convention on human rights was ratified by the United Kingdom more than 30 years ago. The United Kingdom was the first country to ratify it. There is a distinctly British feel about the European convention. That is not surprising, because it was drafted largely by the late David Maxwell Fyfe, Lord Kilmuir, as chairman of the Legal Committee of the Assembly of the Council of Europe. The convention was ratified by the Labour Government, led by Clement Attlee and Ernest Bevin. Subsequently, in 1965, the then Labour Government agreed to give effect to what had always been understood to be the intention — to give to these within this country's jurisdiction the right of individual petition to the European Commission of Human Rights.

In Parliament and across parties there has been broad support for the view that the final step — the incorporation of the provisions of the European Convention on Human Rights into our domestic law—should be taken by the enactment by Parliament of a Bill to give effect in the United Kingdom to the convention's provisions to secure the fundamental rights and freedoms guaranteed by the convention. The provisions, which constitute an international legal responsibility, would then be able to be the subject of proceedings in our domestic courts to ensure that our citizens enjoy a domestic remedy for an alleged infringement of the European convention.

The convention enables those within the jurisdiction to complain about the application of legislation, the decisions of Ministers or public officials and the judgments of United Kingdom courts. The convention has been invoked in a number of cases brought before the European Commission against the United Kingdom.

A subsidiary purpose of the Bill is to seek to ensure that the United Kingdom and its authorities are not so frequently brought before an international tribunal for alleged breaches, as has been the case since 1965 when the right of individual petition was granted. In that period, no fewer than 80 cases have been taken against the British Government and public authorities. That is more than twice as many cases as have been taken against any other Governments who are signatories to the European 853 convention. Those cases have covered matters such as alleged inhuman treatment of suspected terrorists in Northern Ireland, inadequate safeguarding of personal privacy against telephone tapping by the police, unfair discrimination against British wives of foreign husbands under the immigration rules, alleged inhuman conditions in cases of solitary confinement and segration, corporal punishment in Scottish schools, ineffective judicial protection for detained mental patients and would-be immigrants, dismissal of workers because of the oppressive operation of a closed shop, nationalisation of aircraft and shipbuilding companies without adequate compensation, denial of equal citizenship rights to British passport holders from east Africa and interference with free expression by the law lords in extending the common law offences of contempt of court and blasphemy. Many other important matters of public law have been brought before the commission.

It is my view, and that of the many people who support the proposed incorporation into our law of the convention's provisions, that these matters are more properly dealt with in this country by our courts. The courts are capable of doing that job. It is a peculiarity that a convention that was largely devised by British lawyers, judges and Ministers should not have been incorporated into our domestic law.

It is strange, too, that this country, and this Parliament, which has legislated for the independence of so many former colonies and dependent territories and made provision that such rights as are enjoyed under the European convention shall be enjoyed by those newly independent countries, has not made similar provision for itself. Indeed, I believe that, save for New Zealand, we are the only country in the democratic Commonwealth which has not so secured the fundamental rights and freedoms of its citizens.

It is not only in the Commonwealth that we are the odd man out. The European democracies, too, mostly enjoy the benefits of a bill of rights and the provisions of the convention incorporated into their domestic law. The United States of America, with its Bill of Rights as part of its written constitution, has long enjoyed this important protection for the individual citizen.

It has sometimes been wondered whether the judges of this country are capable of deciding these matters, which are frequently of a political nature. Since the setting up of 854 the independent countries of the Commonwealth, however, these provisions have been adjudicated upon time and again by British judges in the Judicial Committee of the Privy Council. Our judges have demonstrated their expertise and capacity to deal with these matters. Indeed, Lord Scarman, in his Hamlyn lecture in 1974, gave the first resounding call for the incorporation of these provisions into our domestic law.

It has been argued that Parliament cannot bind its successors and, because of its sovereignty, is supreme over any such bill of rights. That is true, but the Bill that I seek leave to introduce would ensure that Parliament would not seek to bind its successors by the incorporation of the European convention. The Bill would also specifically retain to Parliament the power to overrule the convention in express terms. Otherwise, the provisions of Parliament would be construed to be in conformity with those of the European convention.

In the absence of this action by the House and Parliament, I believe that we have an incomplete and defective system of public law which may operate more as a shield for public authorities than as a protection for the rights of individuals. I believe that the Bill will command wide support throughout Parliament. A similar Bill has already twice gone through all its stages in another place and been approved by a Select Committee of the House of Lords, recommended by the Standing Commission on the Constitution of Northern Ireland and backed by many of the highest judges in the realm I commend the Bill to the House.