Human Rights Bill [Lords] (Hansard, 16 February 1998)

§ Madam Speaker
I should inform the House that I have selected the amendment in the name of the Leader of the Opposition.

§ The Secretary of State for the Home Department (Mr. Jack Straw)
I beg to move, That the Bill be now read a Second time.
Three hundred and nine years ago, Parliament enacted the 1689 Bill of Rights. That Bill delineated the relationship between Parliament, the Crown and the courts. It was a foundation stone of representative government, curbing unelected power and establishing a constitutional monarchy. One reflection of that is in the mutual respect shown by Her Majesty and the House. So I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Human Rights Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
This is the first major Bill on human rights for more than 300 years. It will strengthen representative and democratic government. It does so by enabling citizens to challenge more easily actions of the state if they fail to match the standards set by the European convention. The Bill will thus create a new and better relationship between the Government and the people.
Nothing in the Bill will take away the freedoms that our citizens already enjoy. However, those freedoms alone are not enough: they need to be complemented by positive rights that individuals can assert when they believe that they have been treated unfairly by the state, or that the state and its institutions have failed properly to protect them. The Bill will guarantee to everyone the means to enforce a set of basic civil and political rights, establishing a floor below which standards will not be allowed to fall. The Bill will achieve that by giving further effect in our domestic law to the fundamental rights and freedoms contained in the European convention on human rights.
The convention is a treaty of the Council of Europe, now a body of some 40 countries. The Council was established at the end of the second world war as part of the allies' programme to reconstruct civilisation on the mainland of Europe. The United Kingdom was a prime mover in the convention and played a major and dignified part in its drafting. One of its draftsmen, David Maxwell Fyfe, later became, as Lord Kilmuir, a distinguished Lord Chancellor in the Conservative Government from 1954 to 1962. The United Kingdom was also among the first countries to sign the convention, which we did on the first available day. We were the first to ratify it, in March 1951.
The United Kingdom's international commitment to the convention has continued ever since. In 1966, we accepted the right of individuals to bring cases against the United Kingdom. The United Kingdom has also set a 768 good example in responding to any adverse findings of the European Court of Human Rights in Strasbourg. For nearly 50 years, there has been broad political support for what the convention does and what it stands for, with a fundamental recognition that, in practice, decisions of the Strasbourg court must be implemented.

§ Mr. Julian Brazier (Canterbury)
Does the Home Secretary not recognise that, under existing legal arrangements, the Government can derogate under exceptional circumstances and, on one occasion involving terrorist suspects, did so? Can he see no occasion—not even the matters that we will debate tomorrow—on which a democratically elected Government might feel the need to depart from the findings of the European Court and, with the consent of Parliament, pass a law that changes that?

§ Mr. Straw
I can indeed. To reassure the hon. Gentleman, the derogation to which he refers is enshrined in schedule 2 to the Bill, on page 19.
Since the convention's drafting nearly 50 years ago, almost all the states that are party to it have gradually incorporated it into their domestic law. Ireland and Norway have not done so, but Ireland has a Bill of Rights which guarantees rights similar to those of the convention, and Norway is in the process of incorporating the convention. Several other countries with which we share our common law tradition, such as Canada and New Zealand, have provided similar protection for human rights in their legal systems.
The effect of non-incorporation on the British people is a practical one. The rights, originally developed by Britain, are no longer seen as British, and enforcing them takes far too long and costs far too much—on average five years and £30,000 to get an action into the European Court at Strasbourg once all domestic remedies have been exhausted. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts, without inordinate delay and cost. It will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more woven into our common law.
There will be another benefit: British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights across Europe. It is also now plain that the approach that the United Kingdom has so far adopted towards the convention has not stood the test of time. The most obvious proof of that lies in the number of cases in which the European Court has found that there have been violations of convention rights in the United Kingdom. It is only natural that people of all political persuasions have asked, "Why do individuals in the United Kingdom have to go to Strasbourg to enforce their British rights? Why can they not rely on them before our domestic courts?"
In 1976, the then Labour Government published a Green Paper on this subject. In 1987, the then Conservative Member of Parliament and Chairman of the Home Affairs Select Committee, Sir Edward Gardner QC, introduced a private Member's Bill on incorporation of the convention. When doing so, he said of the language of the articles: It is language which echoes…down the corridors of history. It goes deep into our history and as far back as Magna Carta. 769 The hon. and learned Gentleman also said: If anybody suggests that these"— he was referring to the convention— are foreign laws which are foreign to our minds and spirits, I suggest that he has not read the convention's articles."—[Official Report, 6 February 1987; Vol. 109, c. 1224.] The baton then passed to the Liberal Democrat peer, Lord Lester of Herne Hill, who introduced two Bills on incorporation in 1994 and 1996. None of those attempts bore fruit, but they highlighted the growing consensus for change.
It was the late John Smith who first committed Labour to the path of incorporation.

§ Mr. A. J. Beith (Berwick-upon-Tweed)
May I draw the Home Secretary's attention to the fact that a prominent former Conservative Minister, Sir Geoffrey Rippon, withdrew his Bill to enable me to bring before the House a Bill that had passed through another place, which was designed to achieve the same purpose. That measure had been introduced by Lord Wade. In the past, there has been much more distinctive Conservative support for such a measure than now seems apparent.

§ Mr. Straw
The right hon. Gentleman is entirely correct. The importance of what he says, however, is that it is apparent that many Conservative Members here and in another place support incorporation in practice. Three Conservative peers spoke in favour of incorporation on Second Reading in another place.
Following John Smith's commitment to incorporate the convention, in December 1996, the Under-Secretary of State for Health, my hon. Friend the Member for Brent, South (Mr. Boateng), and I published a consultation document entitled "Bringing Rights Home". Many people helped us with the drafting of that document, including Lord Lester, to whom I pay tribute for his indefatigable work in bringing the issue to public attention. Many others responded helpfully to the paper, and they have continued to make their knowledge and advice available to me and my colleagues. The response to our paper convinced us that we should make incorporation a manifesto commitment.
Alongside the Bill, which had its First Reading in another place on 23 October, I published a White Paper entitled "Rights Brought Home", setting out the case for the Bill and how it would work. The Bill does not create new substantive rights, but it makes the existing convention rights more immediate and relevant. Under the Bill, all courts and tribunals will be required to have regard to these rights.
Having decided that we should incorporate the convention, the most fundamental question that we faced was how to do that in a manner that strengthened, and did not undermine, the sovereignty of Parliament. Some had argued that the courts should have power to set aside primary legislation, whether past or future, on the ground of incompatibility with the convention. That is a feature of many, though by no means all, government systems with a basic law enshrined in a written constitution. It is also true that, under the European Communities Act 1972, enacted by the then Conservative Government, European law with direct effect automatically takes precedence over our domestic law and Parliament, whatever Parliament wants to do otherwise.
770 That is not the road that we are going down. The Bill, important though it is, has the limited function of bringing the British people's rights home. It is no part of the project to call into question constitutional arrangements that have evolved in this country to make us one of the world's most stable democracies.
The sovereignty of Parliament must be paramount. By that, I mean that Parliament must be competent to make any law on any matter of its choosing. In enacting legislation, Parliament is making decisions about important matters of public policy. The authority to make those decisions derives from a democratic mandate. Members of this place possess such a mandate because they are elected, accountable and representative.
To allow the courts to set aside Acts of Parliament would confer on the judiciary a power that it does not possess, and which could draw it into serious conflict with Parliament. As the Lord Chief Justice said on Second Reading in another place, the courts and the senior judiciary do not want such a power, and we believe that the people do not wish the judiciary to have it.
Although the Bill does not allow the courts to set aside Acts of Parliament, it will nevertheless have an impact on the way in which legislation is drafted, interpreted and applied, and it will put the issues squarely to the Government and Parliament for future consideration. It is important to ensure that, for their part, the Government and Parliament can respond quickly.
In the normal way, primary legislation can be amended only by further primary legislation. As we all know—in normal circumstances, this is entirely correct—that can take a long time. One of the consequences of not having a special procedure to remedy defects in legislation is a degree of paralysis. Until now, the remedy has been through the Strasbourg Court. The best example I can give, which should command the House's attention, is the decision almost two years ago of the European Court in Strasbourg in the Chahal case.
Chahal had been detained in prison by direction of the Secretary of State because it was considered that his presence in this country was not conducive to the public good, on national security grounds. The then Home Secretary's right to make that decision without Chahal having a right of independent appeal was challenged. The matter was fought all the way to the Court in Strasbourg, which found in favour of Chahal, who then had to be released from prison.
There was no provision, as in this Bill, for the law to continue in force unless and until it was corrected. Someone whom the previous Home Secretary had decided, on the best evidence, should be excluded from this country, on the basis that his presence here was not conducive to the public good, on national security grounds, went free. Meanwhile, it was impossible for my predecessor, and it remains impossible for me, to exercise the powers under the Immigration Act 1971 to exclude anyone from this country on national security grounds.
The previous Government put in train preparations for an amending Act, and we have sought to get that legislation through both Houses as quickly as possible. That Bill commands support on both sides of the House, but it is taking many months to grind through all its stages. Consequently, the position that we are stuck with is to no one's advantage. Individual rights have not been 771 properly brought back into line with the convention; nor, as important, is any Secretary of State for the Home Department able to exercise his duties under the 1971 Act.

§ Mr. Douglas Hogg (Sleaford and North Hykeham)
Does the right hon. Gentleman accept that hon. Members who support the principle of incorporation remain deeply concerned about the provisions of the remedial order procedure, which depend on secondary legislation Orders in Council? Can he reassure us that, in the great generality of cases, primary legislation will be amended only by primary legislation, and that the provisions in clauses 10 to 12, which deal with the affirmative resolution procedure, will be activated only in instances of real emergency? If he were able to say that, he might gain much more support in the House than would otherwise be forthcoming.

§ Mr. Straw
I understand the concerns expressed by the right hon. and learned Gentleman; they were raised in the other place and were the subject of extensive debate. I cannot give him the undertaking that he seeks. However, I can say, first, that occasions on which the courts declare an Act of this Parliament to be incompatible are rare; there will be very few such cases. Secondly, the purpose of remedial action is to try to resolve the current paralysis, which is to nobody's advantage. It is not to take away anyone's rights; it is to confer rights. Thirdly, hon. Members will have every opportunity to discuss this matter in great detail in Committee.
In our judgment, these fast-track provisions offer far more safeguards than were provided under the European Communities Act 1972, which the right hon. and learned Gentleman's party supported. Under the 1972 Act, Parliament cannot vote on any declaration of the European Court of Justice that our law is outwith the ECJ; the law must be changed. Furthermore, the Bill provides a better and fairer procedure for deregulation than that laid down by the previous Administration.

§ Mr. Dominic Grieve (Beaconsfield)
May I pick up what was said by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg)? Many Conservative Members who sympathise with the Government's aims feel that, if the Bill is to work, the House of Commons—or, rather, Parliament—must be seen to be working with the courts to allow human rights to exist and to be enforced. We feel that any derogation—leaving aside what earlier Governments may have done, and the presence of the Henry VIII clause—is massively undesirable.

§ Mr. Straw
I understand the hon. Gentleman's point, but, in Committee, I hope to convince both him and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) that, in practice, the Bill will ensure that people's rights—which the courts have declared to be rights—are brought to fruition, and also that we do not repeat the position relating to Chahal, which is unsatisfactory all round. That, however, remains to be seen.

§ Mr. Simon Hughes (Southwark, North and Bermondsey)
The Home Secretary will know that I fully 772 support the Government's incorporation of the convention into domestic law, and that I have worked towards that end in the Council of Europe. May I, however, ask him to test the central point that he is making against the example that I am about to give?
If a Government introduced legislation or other rules banning members of an organisation such as Government communications headquarters—GCHQ—from belonging to a trade union, would they be able to go to a British court immediately for a remedy that would give them the right to union membership, freedom of expression and freedom of association? If Parliament voted by a majority to prevent those people from having that right, would it be able to maintain the denial of liberties that the convention requires them to have?

§ Mr. Straw
The Bill makes the position clear, in clause 4(6) and elsewhere. Clause 6 excludes the Houses of Parliament from the category of public authorities, for very good reasons. What the Bill makes clear is that Parliament is supreme, and that if Parliament wishes to maintain the position enshrined in an Act that it has passed, but which is incompatible with the convention in the eyes of a British court, it is that Act which will remain in force.
There is, however, a separate question, which is why, in most instances, Parliament and Government will wish to recognise the force of a declaration of incompatibility by the High Court. Let us suppose that a case goes to Strasbourg, where the European Court decides that an action by the British Government, or the British Parliament, is outwith the convention. According to 50 years of practice on both sides, we always put the action' right, and bring it into line with the convention. One of the questions that will always be before Government, in practice, will be, "Is it sensible to wait for a further challenge to Strasbourg, when the British courts have declared the provision to be outwith the convention?"

§ Mr. Kevin McNamara (Hull, North)
The problem for many of us is not the existence of the provision, but the fact that the Court has not an absolute right to strike down legislation. If we are to have the declaration of incompatibility, will there be a time scale within which the Government will correct the position? Otherwise, as often happens in such cases, someone who might not be the most perfect person—someone who might attract considerable moral opprobrium, and no sympathy from the community or, certainly, the popular press—might bring a case and be left dangling in regard to the correcting of the position relating to a particular right.

§ Mr. Straw
I do not believe that writing a timetable into the Bill would be desirable, or consistent with the scheme of the legislation. It would challenge the sovereignty of Parliament. In practice, however—even under the current arrangements—Governments always move to remedy a matter if it has been found in Strasbourg to be outwith the convention. The best example from my hon. Friend's point of view is the decision that the European Court made in 1995 in respect of the three people—I think that they were Provisional IRA terrorists—who were shot dead in Gibraltar. The previous Government certainly did not like the decision in that case, but they acted in accordance with the judgment.
773 Before I turn to the detail of the Bill, I should like to comment on two issues that have gained particular prominence: the positions of the media and the Churches. Both have concerns that centre on the provisions of clause 6, relating to public authorities, so I must briefly explain the principles underlying that clause.
Under the convention, the Government are answerable in Strasbourg for any acts or omissions of the state about which an individual has a complaint under the convention. The Government have a direct responsibility for core bodies, such as central Government and the police, but they also have a responsibility for other public authorities, in so far as the actions of such authorities impinge on private individuals.
The Bill had to have a definition of a public authority that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities. Under UK domestic common law, such bodies have increasingly been held to account under the processes of judicial review.
As was generally acknowledged in debates in another place, it was not practicable to list all the bodies to which the Bill's provisions should apply. Nor would it have been wise to do so. What was needed instead was a statement of principle to which the courts could give effect. Clause 6 therefore adopts a non-exhaustive definition of a public authority. Obvious public authorities, such as central Government and the police, are caught in respect of everything they do. Public—but not private—acts of bodies that have a mix of public and private functions are also covered.
I shall now deal with the position of the media under the Bill. The convention contains two articles of particular concern to them: article 10, the right to freedom of expression, and article 8, the right to respect for private and family life. Given the concerns of the press and the Press Complaints Commission about the possible implications of incorporation for a law of privacy, it is worth pointing out that, in practice, the convention has already been extensively used to buttress and uphold the freedom of the press against efforts by the state to restrict it. There are at least four leading United Kingdom cases in which the Strasbourg Court has done that—and not one on privacy has detracted from such a line.
I am placing in the Library a paper prepared by my Department that contains details of cases on freedom of expression. Among others, there is the 1979 case concerning The Sunday Times, where the European Court found that an injunction preventing publication by the newspaper of material on the thalidomide disaster amounted to a violation of article 10. In its judgment, the Court referred to a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted. There was the 1991 "Spycatcher" case, where the European Court held that the continuation of an injunction preventing newspapers from printing excerpts from the book was contrary to article 10. In that case, the Court used the following words, with which I agree, and which I think the media would also endorse: the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication for even a short period may well deprive it of all its value and interests. 774 I could also quote from other United Kingdom cases where article 10 has been successfully invoked—for example, the 1995 Tolstoy libel case on the amount of damages awarded in defamation actions, and the 1996 Goodwin case concerning the anonymity of press sources. There is also Strasbourg case law involving other convention countries, all supporting the view that the European Court of Human Rights accords a high value to the right to freedom of expression and recognises the crucial role of the press to a healthy democracy.
One benefit of incorporation for the press is that United Kingdom courts will be required to take account of European Court judgments and will thereby develop more positive concepts about the right to freedom of expression.
I emphasise that point with good reason. We have repeatedly stated our support for the freedom of the media and our opposition to a statutory law of privacy. We do not believe that the Bill is contrary to that position. We do not believe that it will lead to the courts developing the common law in a way that will inhibit legitimate press investigations into matters of public interest. Nor do we believe that it will lead the courts to issue injunctions in respect of stories in which there is a public interest in publication.
Despite all that, I recognise that the press are bound to be alive to any possibility that their freedoms might be eroded gratuitously by legislation before the House. In turn, the Government and Parliament have a corresponding duty to seek to assuage those anxieties if we possibly can. That is precisely what we have done in respect of data protection. We have proposed legislation on data protection, not because of any manifesto commitment but because of the imperative of an EU directive passed by the previous Administration.
The press—through the chairman of the Press Complaints Commission, Lord Wakeham—raised serious concerns about the impact of the data protection directive in the Bill on investigative journalism. I therefore readily agreed that the Under-Secretary of State for the Home Department, my noble Friend Lord Williams of Mostyn, should hold discussions about those concerns with Lord Wakeham. The outcome of those discussions was fruitful and satisfactory, and is now to be found in clause 31 of the Data Protection Bill.
Under that clause, the duty that would otherwise be placed on the press to disclose data that they held on those they were investigating is abrogated if the data are being processed for a journalistic, literary or artistic purpose, and having regard to the special importance of freedom of expression publication would be in the public interest". One key test of public interest in practice is whether there has been compliance with the Press Complaints Commission code—thus preserving the self-regulation of the press.
The Human Rights Bill is, of course, different from the Data Protection Bill, but, at their root, the anxieties expressed by the media about both Bills are the same: whether they will interfere with freedom of expression; whether they will lead to much greater use of injunctions that halt publication in advance; and, in the case of the Human Rights Bill, whether the Bill itself will encourage the development of a privacy law.
To try to allay these anxieties, Lord Williams and I have been involved in detailed discussions with Lord Wakeham. In particular, we have considered whether 775 safeguards similar in framework to those set out in clause 31 of the Data Protection Bill could be brought into this Bill, without compromising its essential purpose.
I am pleased to tell the House that these discussions have borne fruit, and we have reached an understanding with Lord Wakeham, on behalf of the Press Complaints Commission, on a framework for amendments to the Bill which we believe would satisfactorily safeguard the position of the press in a way that is more comprehensive than providing an exemption for the Press Complaints Commission under clause 6.
The precise wording of the amendments has not yet been agreed, and I should be happy to discuss their terms not only with Lord Wakeham, but with the right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney), the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan).
The components of such an amendment would be, first, an explicit provision that no relief or remedy is to be granted regarding article 8 on respect for private life unless the respondent is either present or represented, or the applicant has taken all practicable steps to alert the newspaper against which the application is brought—that would virtually rule out pre-publication injunctions being granted ex parte; secondly, an explicit provision that in any case in which a person applies for relief or a remedy on article 8 grounds related to respect for private life, and the granting of a remedy would raise issues concerning an article 10 convention right, the court must have particular regard to freedom of expression—this would be consistent with the jurisprudence of the European Court, which already lays great emphasis on article 10 rights, but it could also constitute a useful signal and reminder to the United Kingdom courts; thirdly, a requirement for the court—in the case of an application involving journalistic, literary or artistic material—also to take into account the extent of the public interest in the publication in question, whether the newspaper had acted fairly and reasonably, and whether it had complied with the provisions of the Press Complaints Commission's code.
Provisions along those lines, modelled broadly on clause 31 of the Data Protection Bill, would not be inconsistent with the convention, but would send a powerful signal to the United Kingdom courts that they should be at least as circumspect as judgments of the European Court of Human Rights have been about any action that would give the article 8 rights any supremacy over the freedom of expression rights in article 10. I hope and believe that an amendment along those lines will deal satisfactorily with the concerns of the press.

§ Mr. Gerald Kaufman (Manchester, Gorton)
Many of us will want to see the text of that amendment before coming to a judgment on it. I hope for a positive and clear answer to the following question: if my right hon. Friend seeks to make an amendment to ensure that article 8 does not have supremacy over article 10, will that amendment also ensure that article 10 does not have supremacy over article 8?

§ Mr. Straw
I cannot satisfy my right hon. Friend on that matter, because to do so would plainly make the 776 safeguards entirely circular, and we do not want to do that. I acknowledge that he has not had the opportunity to see our amendments, and I shall be happy to show them to him in due course.

§ Mr. Hogg
I welcome what the Home Secretary is saying, but does he acknowledge that, through the amendments that he wants to agree with my noble Friend Lord Wakeham, he is in reality seeking to amend the circumstances in which the courts can address the two articles? Has he asked himself whether those amendments, which would change the circumstances in which a right could be asserted under the convention, would be upheld by the Strasbourg Court, which is not bound by what he has just told the House? The judges there may well conclude that what he has just said is in itself a derogation from the convention.

§ Mr. Straw
The answer is yes: we have indeed asked ourselves that question, and I said only a moment ago that we were certain that provisions along those lines would not be inconsistent with the convention and would be fully consistent with the jurisprudence of the Strasbourg Court. As I explained, that fact was well set out in several judgments, including those on "Spycatcher" and on The Sunday Times and thalidomide. In those judgments, the European Court itself gives precedence to article 10 over article 8 when the freedom of the press and other media is involved.

§ Mr. David Ruffley s(Bury St. Edmunds)
In the context of articles 8 and 10, would the BBC and independent television companies be public authorities for the purposes of clause 6?

§ Mr. Straw
That is ultimately a matter for the courts, but our judgment is that the BBC will be regarded as a public authority under clause 6; independent television companies will not, but the Independent Television Commission will be.

Several hon. Members
rose—

§ Mr. Straw
I shall give way first to my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) and then to the hon. Member for Aldershot (Mr. Howarth).

§ Mr. Kaufman
Will my right hon. Friend assure the House that the arrangements are the only ones arrived at, and that there is no question of the Press Complaints Commission being excluded from the definition of a public authority under clause 6?
We have before us, in the annexe that lays out the convention, a series of rights and freedoms that will be available under this legislation to all citizens of the United Kingdom. My assumption, when the Bill was introduced, was that all those rights and freedoms would be given equal weight. My right hon. Friend now appears to be telling the House—only a satisfactorily drafted amendment could possibly allay any misgivings on the matter—that the article 10 right will have greater weight than the article 8 right. Many Labour Members would be seriously disturbed by such a change.

§ Mr. Straw
The answer to my right hon. Friend's first point is that we do not propose to table amendments that 777 would exempt any particular body, including the Press Complaints Commission, from the operations of clause 6. There are a number of reasons for that; we can go into detail in Committee. We do not believe that exemptions are the appropriate means of dealing with clause 6, about which I shall speak in a moment.
On my right hon. Friend's second point, I ask him to look carefully at the document that I shall deposit in the Library, which sets out the development of jurisprudence by the European Court in Strasbourg on matters relating to articles 10 and 8. It is always the case that some legal concepts have greater force than others; it happens to be the case that the European Court has given much greater weight to article 10 rights of freedom of expression than to article 8 rights to privacy. We want to reflect that in our domestic law.

§ Mr. John Bercow (Buckingham)
Will the right hon. Gentleman give way?

§ Mr. Straw
I promised the hon. Member for Aldershot that I would let him intervene, after which, if the hon. Member for Buckingham (Mr. Bercow) will forgive me, I must continue; many hon. Members want to speak in this debate.

§ Mr. Gerald Howarth (Aldershot)
I am grateful to the Home Secretary for giving way. Obviously, we need to see the detail of his proposals on how to reconcile articles 8 and 10. However, I am not clear about his proposals on injunctions that are sought ex parte in advance of publication. As he knows, once something defamatory has appeared in print, it is difficult to undo any damage that may have been caused. Does he intend, in effect, to abolish a citizen's right to seek an injunction in advance of publication?

§ Mr. Straw
The hon. Gentleman is talking about ex parte injunctions in cases of defamation, but the Bill does not deal with the law on defamation; it deals with convention rights. It will ensure that it is extremely difficult to gain an ex parte injunction without notice in cases concerning convention rights. That is entirely right and proper in the circumstances that we have laid out, and it is also entirely consistent with the jurisprudence of the Strasbourg Court in the case that I have already cited.
The Churches have expressed concerns about the Bill's impact on them if they are held to be public authorities in carrying out some of their activities—for example, in conducting marriage ceremonies or running religious schools. They fear that the convention rights will be used against them, so that they will have to carry out those activities in contravention of their religious beliefs. As introduced in another place, the Bill did not require them to act against their conscience. In particular, it could not be used to require the Churches to conduct marriages between homosexual couples or divorcees, or to appoint atheists as head teachers of Church schools.
The convention places great store by religious freedom. Indeed, article 9 guarantees freedom of thought, conscience and religion. We therefore think that the Churches have much to gain from the convention rights being given further effect in our law. None the less, before coming to a final conclusion on the amendments 778 that were made in another place, I shall be happy to discuss those questions further with representatives of the Churches, and I shall put arrangements in hand to do so.

§ Miss Ann Widdecombe (Maidstone and The Weald)
Will the right hon. Gentleman give way?

§ Mr. Straw
The right hon. Lady will forgive me for not giving way, as I am anxious to proceed.
I shall now deal briefly with the detail of the Bill and explain exactly how it will bring rights home. Clause 1 lists the convention rights to which the Bill will give further effect in our domestic law. Clause 2 ensures that, in giving effect to those rights, our domestic courts and tribunals have regard to Strasbourg jurisprudence.
Clause 3 provides that legislation, whenever enacted, must as far as possible be read and given effect in such a way as to be compatible with convention rights. We expect that, in almost all cases, the courts will be able to interpret legislation compatibly with the convention. However, we need to provide for the rare cases where that cannot be done. Consistent with maintaining parliamentary sovereignty, clause 3 therefore provides that if a provision of primary legislation cannot be interpreted compatibly with the convention rights, that legislation will continue to have force and effect.
A declaration of incompatibility will not affect the continuing validity of the legislation in question. That would be contrary to the principle of the Bill. However, it will be a clear signal to Government and Parliament that, in the court's view, a provision of legislation does not conform to the standards of the convention. To return to a matter that I discussed earlier, it is likely that the Government and Parliament would wish to respond to such a situation and would do so rapidly. We have discussed how that would operate and no doubt there will be further detailed discussions in Committee on the Floor of the House.
Clauses 6 to 9 cover the second main way by which the Bill gives effect to the convention rights. Clause 6 makes it unlawful for public authorities to act in a way that is incompatible with a convention right, unless they are required to do so to give effect to primary legislation. I have already discussed the approach that we have taken in the Bill to defining a public authority.
Clause 7 enables individuals who believe that they have been a victim of an unlawful act of a public authority to rely on the convention rights in legal proceedings. They may do so in a number of ways: by bringing proceedings under the Bill in an appropriate court or tribunal; in seeking judicial review; as part of a defence against a criminal or civil action brought against them by a public authority; or in the course of an appeal. Clause 7 ensures that an individual will always have a means by which to raise his or her convention rights. It is intended that existing court procedures will, wherever possible, be used for that purpose. Clause 8 deals with remedies.

§ Mr. McNamara
Will my right hon. Friend give way?

§ Mr. Straw
If my hon. Friend will forgive me, I need to press on.
If a court or tribunal finds that a public authority has acted unlawfully, it may grant whatever remedy is available to it that it considers just and appropriate.
779 Clause 9 serves two main functions. It preserves the general principle of judicial immunity when a court or tribunal is found, or alleged, to have acted in a way that is made unlawful by clause 6, and it provides for the possibility of damages being awarded against the Crown in respect of a judicial act, to the extent necessary to comply with article 5(5) of the convention.
Clause 13 confirms that a person's reliance on a convention right does not restrict any other right or freedom that he enjoys under United Kingdom law. Clauses 14 to 17 cover derogations from, and reservations to, the articles of the convention and its associated protocols. Clause 18 is concerned with the appointment of judges to the Strasbourg Court.
Clause 19 is a further demonstration of our determination to improve compliance with convention rights. It places a requirement on a Minister to publish a statement in relation to any Bill that he or she introduces. The statement will either be that the provisions of the legislation are compatible with convention rights or that he or she cannot make such a statement, but that the Government nevertheless wish to proceed with the Bill.
I am sure that Ministers will want to make a positive statement whenever possible. The requirement to make a statement will have a significant impact on the scrutiny of draft legislation within Government and by Parliament. In my judgment, it will greatly assist Parliament's consideration of Bills by highlighting the potential implications for human rights.
Finally, clauses 20 to 22 deal with various supplemental matters with which we need not detain the House.

§ Mr. Kaufman
I am sorry to interrupt again, but my right hon. Friend has gone through the clauses and, as is the usual practice, has not found it necessary to refer to the schedule. In schedule 1, at the top of page 18, paragraph 2 of article 10 states that "the exercise" of "freedoms" may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society", and goes on to state that such provisions include the protection of the reputation or rights of others", and preventing the disclosure of information received in confidence". Will he explain the significance of the word "and" in line 3? Does the "and" combine "necessary in a democratic society" with "prescribed by law"?

§ Mr. Straw
Yes. That is usually how such matters are interpreted, particularly as there is no comma between "by law" and "and". Although I defer, of course, to our learned friends in the Strand, I think that I can give my right hon. Friend a clear and categorical answer to that question.
The Opposition amendment seeks to block the Bill's Second Reading on three main grounds: that it will further increase the power of the Executive; that it will diminish Parliament; and that it will politicise the judiciary. As I hope I have shown, none of them has any serious foundation.
780 The power of the Executive will be reduced by the Bill because the state will be made far more accountable for its acts and omissions to its citizens. The Bill enhances parliamentary sovereignty in practice, and the scheme that we have chosen ensures that the judiciary will not be involved in politics.
It is interesting that none those concerns cut any ice with the then Conservative Chairman of the Home Affairs Committee, Sir Edward Gardner, when he introduced his Bill on incorporation 11 years ago. More than 50 Conservative Members voted for it, with four members of the present Conservative Front-Bench team, including the shadow Health Secretary. The only difference between the two Bills is that this one gives far greater protection to the sovereignty of Parliament.
There is another matter that the Opposition may have forgotten in tabling their amendment. In 1977, the architect of modern Conservatism, Lady Thatcher, supported the incorporation of the European convention on human rights. She had the then Mr. Leon Brittan move amendments to the Scotland Bill to do that. [Interruption.] From a sedentary position it is said that Lady Thatcher was not always right, but many Conservative Front-Bench spokesmen think that she was always right.
If the Conservatives were correct then, why are they wrong now? We not only have the benefit of Lady Thatcher' s views on incorporation 20 years ago, but, just four months ago, we had the view of the shadow Lord Chancellor, Lord Kingsland. On the day that the Bill was published, he said in a radio interview that he was "satisfied" with it. He added: From my vantage point we are not in principle against incorporation. The two concerns that we have about it, first of all, parliamentary sovereignty, and secondly, too big a shift of power from Parliament to judges. These concerns do not appear to be serious ones in the context of this Bill. What makes the amendment all the more puzzling is the question of where the Tories intend to go next on the issue. Our Bills meets their concerns.

§ Sir Nicholas Lyell (North-East Bedfordshire)
The Home Secretary was pushing his luck a bit when he talked about Mrs. Thatcher. As he made great play of Sir Edward Gardner's Bill, does he recall that she instructed our former colleague Sir Patrick Mayhew, then Solicitor-General, to oppose it?

§ Mr. Straw
No. I recall what the then Leader of the Opposition required Mr. Leon Brittan to do and what she said in the 1977 Conservative campaign guide and in Hansard of 13 January 1976 about the need to enshrine the Bill of Rights in the devolution statute.
I know that the Conservatives press the self-destruct button with alarming regularity but the question is where they are going to go next. Are they really going to go into the next general election on the promise, "Vote Conservative and we will take away your human rights"? Is that to be the badge of the modern Tory party?
Let me conclude by placing the Bill in a wider setting. Our manifesto commits us to a comprehensive programme of constitutional reform. It has four objectives: decentralised government; responsive government; open and honest government; and modernised government. The Bill falls squarely within 781 that constitutional programme. It is a key component of our drive to modernise our society and refresh our democracy. It is part of a blueprint for changing the relationship between the Government and people of the United Kingdom to bring about a better balance between rights and responsibilities, between the powers of the state and the freedom of the individual. I commend the Bill to the House.

§ Sir Brian Mawhinney (North-West Cambridgeshire)
I beg to move, To leave out from "That" to the end of the Question, and to add instead thereof: this House, while confirming its strong belief in human rights, expresses its deep concern at the constitutional implications and deficiencies of the Human Rights Bill [Lords] because the Bill weakens one of the foundations of everyone's human rights and fundamental freedoms, which is an effective political democracy; because the Bill creates in the United Kingdom an additional, separate, and potentially incompatible, constitutional framework; because the Bill fails adequately to respect and maintain the principle of separation of powers between the executive, legislature, and judiciary fundamental in a democratic society and will therefore lead to a further increase in the power of the executive, the diminution of Parliament, and the politicisation of the judiciary; and declines to give the Bill a Second Reading. In a long and closely argued speech, the Home Secretary dealt in some detail with the main provisions of the Bill. As I hope to show, however, he conveniently skated over the importance of such issues as sovereignty and the fast-track approach and also the definition of a public authority. The House will have also noticed his total silence on the role of the Lord Chancellor, to which we will return.
I welcome the right hon. Gentleman's initial comments that, for many years, there has been broad political agreement on the issue. I should like to confirm that again. The Conservative party's commitment to human rights is just as strong as that of the right hon. Gentleman and the Government of the day. Our commitment to the European convention on human rights is as strong as his and that of the Government of the day. I am happy to put that on the record. In common with the right hon. Gentleman, I recognise that the convention reflects rights, freedoms and liberties that have long been embodied in the statutes and common law of the United Kingdom.
If I may offer a slightly broader interpretation of human rights, in the past 18 years our Conservative Government extended human rights as my right hon. Friend Baroness Thatcher worked with President Reagan—with the intermittent support of the Labour party—to free eastern Europe. That led to the removal of the Berlin wall and enabled human rights to be experienced in a way that had not been known previously in that part of Europe.
With the support of the Labour party, my right hon. Friend the Member for Huntingdon (Mr. Major) helped to extend human rights in Kuwait after its invasion. Without any help from the Labour party, our Government extended the human rights of trade unions by removing the closed shop.
People like the Lord Chancellor, of whom I would have expected it, and the Home Secretary, of whom I would not have expected it, who wish to promote the line that the convention should be incorporated into United Kingdom law, often pray in aid the so-called fact that the number of court judgments given against the United 782 Kingdom, at 50, is second only to Italy, at 98, and just ahead of France, at 43. Such people, including the Home Secretary, fail to make a proportionate judgment about those figures. He should recognise that if a country has been a signatory for a long time, it is more likely to have been exposed to adverse decisions than a country that has recently become a signatory. The size of the country is also a factor in such matters. When one takes account of the size of the population and the length of time that a country has been a signatory, the number of human rights violations per 100,000 of the population per annum suggests that there are 12 countries with a worse human rights record than the United Kingdom in terms of decisions of the Court. That provides a different picture from that painted by the Home Secretary.
Incorporation of the convention into domestic law is no guarantee of a good record in human rights, as the records of a number of countries with a Bill of Rights show.
As part of the background to the Bill, it is also worth putting it on the record that in nearly 40 years of convention application, primary legislation has been brought forward in this country only 10 times in order to implement the judgments of the European Court of Human Rights.
We strongly support the convention and as the right hon. Gentleman recognised, when in government, the Conservative party has always complied with the Court's judgment. In 1996, the right hon. Gentleman issued a document entitled "Bringing Rights Home", in which he stated on page 10: There are no cases where a UK Government has failed to act in response to an adverse Strasbourg ruling. With the Bill, the Government want to incorporate the convention into British law. They argue, as the Home Secretary argued, that cases could be brought more quickly and more cheaply; that the convention would better respect our traditions and way of life and that the United Kingdom would have more influence over the European Commission. We support all those aims, but they can be met—indeed, they are already being met—without incorporating the convention into British law.
I was surprised that the Home Secretary did not refer to the position taken by the Conservative Government. We believed that it was better to reform the European institutions than to incorporate the convention, which is why we supported protocol 11. No doubt, in Committee, we can explore the Government's view on protocol 11. Once signed by all member states, that protocol will abolish the European Commission of Human Rights and create a single court that can decide both the admissibility and the merits of a case. It will also divide the court into a number of committees and chambers and so reduce legal costs and enable it to deal with cases more quickly.
We also believe that the convention should be applied in a way that is sensitive to our way of life. Currently, the European Court does not put judgments into effect: that is the responsibility of our elected Members of Parliament, who ensure that its judgments are implemented in a way that respects our culture and traditions. That will be changed by the Bill.
We agree that our system of law has much to offer the Court. As the Home Secretary said, the convention was drafted by two British Government lawyers and the 783 UK was one of the original signatories, but there is no reason why the Court should not currently refer to our common law.
Why has the Bill been introduced? The Lord Chancellor is the midwife. Lord Lester of Herne Hill said in another place: I should like to pay tribute to the great and crucial contribution of the noble and learned Lord the Lord Chancellor"— I understand why reference to the Lord Chancellor embarrasses the Home Secretary, but I fear that there will be more embarrassment before I sit down— both when in Opposition in convincing the Labour party of the case for incorporation and now as Lord Chancellor in helping the Home Secretary and his other colleagues to shape the Bill. Indeed, many of its provisions are stamped with his powerful and personal imprint."—[Official Report, House of Lords, 3 November 1997; Vol. 1709, c. 1238.] We know whence the driving force behind the Bill comes, even though it is a Home Office Bill. Normally in our history the thought that a Bill was being advanced by the Lord Chancellor would add to the confidence with which many would view it—but not this Lord Chancellor. He is a man to whose head power has positively rushed—a man who thinks nothing of spending huge sums of public money for his own style and comfort and does not mind adding to the relevant works contracts a clause requiring the signing of the Official Secrets Act. How ironic that a man who lectures us on the importance of freedom of information and of giving people rights to hold the Government in check should behave in such a fashion. Well, he has made his £10,000 bed and he will have to lie on it. He represents yet another example of a Minister saying one thing, but doing another.
Before coming to detailed consideration of the Bill, I should like to remind the House that the Lord Chancellor—who was far more forthcoming in the other place than the Home Secretary has been today—told us that we shall be able to take our human rights concerns to any court or tribunal in the United Kingdom."—[Official Report, House of Lords, 3 November 1997; Vol. 1709, c. 1228.] Indeed, the misleading soundbite "bringing rights home" so beloved of the Labour party heralds a whole new field of legal activity, so perhaps the Minister who winds up the debate will tell us the Government's estimate of how many cases they believe will be brought before each level of court in the land in each of the next three years and how much extra public expenditure the Government have earmarked for that extension of legal activity. Who is going to train our judges and magistrates and how long will that take?

§ Mr. Gareth Thomas (Clwyd, West)
Does the right hon. Gentleman not accept that it is extremely expensive and onerous not only to individual litigants but to the Government and to the public purse for cases to be brought in Strasbourg that could be adjudicated in Britain by British judges?

§ Sir Brian Mawhinney
The hon. Gentleman has a point, and I think that everyone realises that there is a cost to be borne. However, he has probably underestimated the cost to be borne by the judicial system when everyone in the country is told that, whenever they believe that one of 784 their human rights has been denied by a public authority, whichever authority it may be, they can head off to their nearest court.
The Bill will alter the balance of power between the legislature and the judiciary. In the United Kingdom, we have always had a separation of powers. Hon. Members are elected to the House, and hon. Members and those in another place usually pass laws following the Government's proposed legislation. Judges subsequently apply those laws in specific cases. However, all that will change.
In the Bill, our courts will not be bound by decisions of the Strasbourg Court—although the Home Secretary was right to say that a matter will go to Strasbourg if Parliament is unwilling, under the fast-track procedure, to accept the judgment of our judges. As my noble Friend Lord Kingsland said in reply to the Lord Chancellor, the Strasbourg court's decisions will have a "persuasive but not obligatory" effect.
Therefore, courts will consider cases in the context of United Kingdom law and with the convention in mind. As the Home Secretary said, the Bill will give courts the right to make a declaration of incompatibility when it decides that there is a conflict between the two. If primary legislation is found to be incompatible with convention rights, a higher court can declare incompatibility. We are told that, in some cases, subordinate legislation could be struck down without any reference to Parliament. In his speech, the Home Secretary did not manage to mention that enormously significant change in how we have done our business for a very long time—that, in some circumstances, judges will be given the right to strike down subordinate legislation.
As the Home Secretary made clear in reply to my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), under the Bill, primary legislation may be amended not by new primary legislation but by order. I shall deal with that point later in my speech.

§ Mr. Straw
Does the right hon. Gentleman not understand that British courts have always had the power to strike down subordinate legislation if they find that it is ultra vires to the parent statute? In principle, that is no different from the provisions of this Bill—which will also be an Act of the British Parliament.

§ Sir Brian Mawhinney
The right hon. Gentleman is a lawyer and I am not; therefore, I shall be diffident. However, it seems that there is a difference between ultra vires and intra vires, and that that difference is at the heart of the difference between us. He provides an example of a law that is struck down because it is ultra vires, whereas the Bill would give courts power to strike down subordinate legislation that perfectly accords with the primary legislation from which it stems. That is a departure from our current system, and it comes as a great surprise to many hon. Members that the Home Secretary did not bother to mention it.

§ Mr. McNamara
I think that the right hon. Gentleman failed to follow the point made by my right hon. Friend the Home Secretary—which I was planning to make also: the courts already have power to declare legislation ultra vires. The right hon. Gentleman suggests that subordinate 785 legislation is intra vires the parent Act, but presumably the case is being brought against subordinate legislation. If the case is brought against the parent Act, there may be a declaration of incompatibility. If there is subsequently an action against subordinate legislation, it may be declared ultra vires.

§ Sir Brian Mawhinney
I think that I understood precisely what the Home Secretary said, and I think that I made a real and important point—to which we can return when the House considers the Bill in Committee. However, I should like to help the hon. Member for Hull, North (Mr. McNamara), because, in replying to his intervention, the Home Secretary was not as forthcoming as the Lord Chancellor was in another place. The hon. Gentleman asked about a time limit. In Lords Hansard of 3 November 1997, at column 1231, the Lord Chancellor said that, in practice, the time limit would be 40 days. It is perhaps not surprising that 40 days commended itself to Cardinal Wolsey.

§ Mr. McNamara
Yes—the King's good servant but God's first. The right hon. Gentleman has again misread the situation. The point that was being made in the other place was on the making of subsidiary legislation. A normal rule in the House is that statutory instruments require affirmative resolution. The other place was talking about that—snot the nonsense that he is talking about.

§ Sir Brian Mawhinney
I suggest that the hon. Gentleman reads the Lord Chancellor's speech.
The Bill's effect is clear: it would require courts to interpret the convention's broad and general provisions and apply them to policy spheres affecting individuals' rights and freedoms. Courts will therefore become involved in public policy matters that were previously the sole responsibility of Parliament. That consequence will be inevitable and is outwith the quality of the judiciary.
In his speech, the Home Secretary said that the Bill would not necessarily affect sovereignty; but it goes to the very heart of the sovereignty of the United Kingdom Parliament. The Government say that a declaration of incompatibility would protect Parliament's rights and will not change the law. The Home Secretary told the House that the declaration will only tell Ministers that judges think that a law should be changed, and that Ministers will decide on how to proceed. However—as the Home Secretary made clear in answer to an earlier intervention—those statements are, at best, disingenuous. If the Government do not respond to a declaration of incompatibility by judges, a litigant may go to Strasbourg. Therefore, the presumption is that when judges say that something in UK law must be changed—and, by the way, do it pretty quickly, old Parliament—Ministers will respond.
Judges will therefore consider cases in the light of UK law and against the background of the convention—which is not detailed but consists of broad principles that are entirely worthy but unexceptional. Article 2 states that everyone has a right to life. Article 4 states that No one shall be held in slavery or servitude. Article 8 says that Everyone has the right to respect for his private and family life, his home and his correspondence. 786 Article 10 says that everyone has the right to freedom of expression.
All of those articles are hugely important to every hon. Member, in whichever corner we sit. They represent in our society—national and international—the highest moral ground. However, frequently judgments will have to be made between two or more of those articles in a particular case. How will those judgments be made?

§ Mr. David Lock (Wyre Forest)
Does the right hon. Gentleman realise that, in his analysis of what he proposes to do, he is issuing a great insult to British judges? He is saying, "I do not trust British judges to work out where the convention has been breached; I would prefer to trust the judges in Strasbourg," and he trumpets the fact that the previous Government were happy to change the law if the Strasbourg judges declared it, but he is not prepared to do so when our judges make the same finding. Is not that an insult to the British judges?

§ Sir Brian Mawhinney
I gave way to the hon. Gentleman too soon. Had I kept going a little longer, I would have addressed that point.
I return to the question—how are judges to decide? Normally, and historically, judges decide on the basis of decisions taken in this place. We pass legislation; we say what the law should be. We give them guidance to let them know what we intended by the legislation that we passed, and judges use that to determine the outcome of specific cases. However, in this new circumstance British judges will say, "This piece of law is outwith this convention article, in my judgment". They will say, "In my judgment," because the House will have set down no Act of Parliament to enable the judges to determine how else to proceed.

§ Mr. Hogg
Is not the real change that the Bill is achieving that, in the past, the House has always laid out statutory provisions with great particularity, stating very clearly what the House wishes to provide by way of rights or obligations? The Bill, by incorporating the convention, is stating rights in very general terms, leaving the application of the particular facts to each case and thus the enlargement of particular rights to the judges. That is a fundamental transformation in the way in which we conduct our affairs.

§ Sir Brian Mawhinney
I entirely agree with my right hon. and learned Friend. He put it more elegantly than I did, but, in our own way, we both said the same thing. He is right to point out the fundamental nature of the change which this represents, and over which the Home Secretary skated earlier.
Judges will not be obliged to abide by European Court of Human Rights judgments, so they will make their own judgments. Will they be influenced by the sense of existing United Kingdom legislation? Perhaps, but, by definition, they will not be bound by it in the cases that they hear, for they will have judged the UK law to be incompatible. So they will make new judgments in the specific, as my right hon. and learned Friend the Member for Sleaford and North Hykeham says, and they will break new ground. On what basis will they do so? They will do so on the basis of their own views and, as these will be in the area of human rights, judges will, in effect, be producing a judicially driven United Kingdom Bill of Rights.
787 Other countries have not developed or incorporated a Bill of Rights on the basis of judicial decisions in case law. Other countries have caused to be brought before their Parliament a Bill—historically, the way in which we have done it—which says, "This is what the Government believe should constitute a Bill of Rights", but the present Government have not done so.

§ Mr. Rhodri Morgan (Cardiff, West)
When the right hon. Gentleman says that, historically, that is the way that we have done it, does he recall the example of the Defamation Act 1996, passed in the previous Parliament, and the change to the 1688 Bill of Rights that was enacted by the Conservative Government on the application of Neil Hamilton and a bunch of his friends from the Back Benches of the Conservative party, and which the Conservative Government were happy to change without formally declaring that this was a new Bill of Rights?
Historically, was that not more important as a change, and done with less forethought and less of a declaration that we were changing the 1688 Bill of Rights than is the case now? I can see that the right hon. Gentleman is getting coaching from the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell), but, on the Richter scale of historical changes to the British constitution, was not the change embodied in the Defamation Act 1996 even greater than what he is complaining about today?

§ Sir Brian Mawhinney
No is the answer. The change to which the hon. Gentleman refers was by a Bill before the House. That is precisely my argument, and I am deeply grateful to him for reinforcing it.
This is not modernising the constitution. This is not modernising Britain. This is tearing up our fundamental separation of powers. The Government plan to give effect to change by way of a declaration of incompatibility and, as the Lord Chancellor delicately put it: the declaration is very likely to prompt the Government and Parliament to respond. That is the point.
The present Government have taken disingenuity to a new level. "Of course it has nothing to do with us," they say. "We are not in favour of undermining the sovereignty of Parliament," they say. "We would not dream of introducing a privacy law by the back door," they say. But they pass the legislation to undermine the sovereignty of Parliament and give judges new rights.
The Lord Chancellor said in another place, We have taken the view that if legislation has been declared incompatible, a prompt parliamentary remedy should be available."—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1231.] This afternoon the Home Secretary confirmed that.
The Government want to change the legislation by introducing an unamendable order. My right hon. and learned Friend the Member for Sleaford and North Hykeham was right to pressure the Home Secretary earlier. The Government want to introduce an unamendable order, perhaps in a matter of weeks, on the 788 say-so of judges who, drawing on their judicial experience and their socio-political views, decide that some bit of British law is incompatible with a convention article.

§ Mr. Gareth Thomas
Will the right hon. Gentleman give way?

§ Sir Brian Mawhinney
I have already given way. Let me make progress.
The Government want to amend primary legislation by an unamendable order. In Committee, we shall ask the Home Secretary to give us examples that we can discuss, from a variety of fields, of Governments overturning primary legislation by means of an unamendable Order in Council.

§ Mr. Straw
I can give the right hon. Gentleman two examples. Section 2 of the European Communities Act 1972 provides for very limited powers of scrutiny by the House, where the European Court of Justice makes a judgment that our law is outwith their—

§ Sir Nicholas Lyell
It is totally different.

§ Mr. Straw
The former Attorney-General says that it is totally different. It is indeed totally different, because the provisions of the Bill before us provide far more safeguards to the House than did the European Communities Act 1972. The Deregulation and Contracting Out Act 1994 was another example, where it is far less justified, in our judgment, than in the Bill before us.
The right hon. Gentleman asked for examples. I gave him the detailed example of the Chahal case. Does he believe that it is satisfactory, where there has been a two-year delay, both in according individual rights and in giving force to the provisions of the Immigration Act 1971, for a Secretary of State to be allowed to declare someone's presence not conducive to the public good?

§ Sir Brian Mawhinney
The answer is: no, I do not think it is a satisfactory situation. We are now 10 months into this Parliament, and we are looking for a change. Arguing that things are not satisfactory, however, and arguing that that is sufficient basis for this legislation are two different things. We shall explore them further in Committee.

§ Mr. Bercow
I apologise for interrupting the eloquence of my right hon. Friend's flow. Does he agree that for such an important debate, and on a cause so close to their hearts, it is extraordinary that only one representative from the Liberal Democrats is in the Chamber?

§ Sir Brian Mawhinney
I find it all the more surprising because the Bill is part of the secret deal between the Government and the Liberal Democrats on constitutional issues. Over time, we are finding out what sort of price the Government are prepared to pay for Liberal Democrat support. The fact that the Liberal Democrats are not here today suggests to me that they have already done their deals and so do not need to sit in the Chamber. Perhaps we can learn more about that from the one who is present—the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan).
789 So it appears that we are heading for a UK Bill of Rights, not enacted by Parliament, and driven by judges who may take account of, but are not bound by, European Court precedent or parliamentary legislation. I stress that none of this amounts to an attack on judges. This country owes much to their fine minds and judicial experience. Our quarrel is not with the judges or the European Court: our quarrel is with the Government. So it appears that we are heading for a UK Bill of Rights, not enacted by Parliament, and driven by judges who may take account of, but are not bound by, European Court precedent or parliamentary legislation. I stress that none of this amounts to an attack on judges. This country owes much to their fine minds and judicial experience. Our quarrel is not with the judges or the European Court: our quarrel is with the Government. So it appears that we are heading for a UK Bill of Rights, not enacted by Parliament, and driven by judges who may take account of, but are not bound by, European Court precedent or parliamentary legislation. I stress that none of this amounts to an attack on judges. This country owes much to their fine minds and judicial experience. Our quarrel is not with the judges or the European Court: our quarrel is with the Government.
The Bill represents the most obvious example yet of the contempt in which the Government hold Parliament and—even worse—the sovereignty of Parliament. Other examples are Prime Minister's Question Time, devolution, and Parliament being the last to be informed. Now the very sovereignty of Parliament is being undermined.
Speaking to a conference on a Bill of Rights for the United Kingdom on 4 July last year, the Lord Chancellor said: The British constitution is firmly based on the separation of powers. It is essential that incorporation is achieved in a way which does nothing to disturb that balance. The Bill does not meet that criterion. Unelected judges will be enabled to override elected Members of Parliament—such are the priorities of this Government.
Let us look at a specific example. Parliament has always resisted the introduction of privacy legislation. It has taken the view that, warts and all, a free press operating within the framework of firm libel laws is a powerful guardian of freedom in our democracy. Of course, press invasion of private lives causes real pain for those concerned; if it is unwarranted intrusion, the pain is mixed with justifiable anger. We all agree that the private lives of members of the public should remain private. Their privacy should not be swept aside just to sell newspapers. When someone's reputation is at stake, it is important that lies should not become the common currency of everyday conversation.
The right to privacy, however, should not become a cloak behind which to hide matters of legitimate public interest. No one, certainly not the Government, has yet drafted a privacy law that could distinguish between unwarranted press intrusion and the legitimate and necessary inquiries of a free press. An unfree press is bad news in a free society.
The Government say that they are in favour of a voluntary code of self-regulation. All of us welcomed the tightening of the voluntary code by the Press Complaints Commission in response to the public mood and anguish after the death, last summer, of Diana, Princess of Wales. Those tighter rules were voluntarily agreed under the leadership of Lord Wakeham, chairman of the PCC—a leadership held in high regard on both sides of the House, as the Home Secretary was generous enough to say earlier.
Yet, as it stands, the Bill provides for privacy legislation—or at least the danger of privacy legislation—by the back door. The Prime Minister says that he is against a privacy law, yet the Bill was allowed through the other place. The Lord Chancellor is fanatically in favour of allowing the judges to produce a privacy law. According to him, judges would decide—at the moment they still will decide—but they would not have to act in a vacuum, for they can look to the Lord Chancellor for 790 guidance. We know that he was against newspapers printing anything about the life of the Foreign Secretary. We know that he was appalled at the newspaper stories criticising Ministers and wanted Ministers to sue the papers concerned. We know that he favoured prior restraint. We know that, left to himself, he would like to transform the PCC, which is not his creature anyway, into a different type of body for which PCC would stand for Prior Censorship Commission. Editors would have needed to seek approval before they could publish stories.
Of course, the editors would not do that; the PCC was aghast, as Lord Wakeham made clear; and the owners would not pay for it. But it all tells us a great deal about the Lord Chancellor's thinking—and judges pay considerable heed to his thinking.
The Home Secretary's record is an unenviable one. The last time he spoke on Second Reading of a Bill in the House, he had to throw doubt on one of the Bill's central tenets in the middle of his speech. It must therefore be difficult for him to come to the House today and, again, to have to throw doubt on a central tenet of another Bill. It represents a humiliating U-turn by the Government, a slap in the face for the Lord Chancellor—and an about-face for the Prime Minister himself.
I had a look at last Wednesday's Hansard, Mr. Deputy Speaker, from which I should like to quote the following exchange: Mr. Hague: When the Lord Chancellor says that the Human Rights Bill will lead to a privacy law, does the Prime Minister accept his judgment? The Prime Minister: No, it will not lead to a privacy law. Mr. Hague…Will he now agree to amend the Human Rights Bill so that there is no risk of its introducing a back door privacy law? The Prime Minister: We do not believe that that is the case. Mr. Hague…It is a bizarre situation when the Lord Chancellor says that we are to have a privacy law and the Prime Minister denies it. It is a shame that the Prime Minister does not take the Lord Chancellor seriously"—

Mr. Deputy Speaker
Order. The right hon. Gentleman may wish to quote Hansard, but he should not use surnames.

§ Sir Brian Mawhinney
I did say that I was quoting from Hansard—

Mr. Deputy Speaker
Order. I am giving a ruling. The right hon. Gentleman should not use surnames.

§ Sir Brian Mawhinney
I accept your ruling, Mr. Deputy Speaker. I shall simply say that the Leader of the Opposition said: It is a shame that the Prime Minister does not take the Lord Chancellor seriously when the Lord Chancellor takes himself so seriously. Is it not wrong to say that he opposes something while actually introducing it?"—

§ Mrs. Gwyneth Dunwoody (Crewe and Nantwich)
On a point of order, Mr. Deputy Speaker. Is it not usual, even for Front Benchers, to paraphrase comments of this kind and not to read out the minutes in this fashion?

Mr. Deputy Speaker
The right hon. Gentleman is not out of order at the moment.

§ Sir Brian Mawhinney
The Leader of the Opposition continued: Is it not wrong to say that he opposes something while actually introducing it, to introduce a form of censorship under cover of human rights, and to speak of the rule of law while introducing the rule of lawyers? Will the right hon. Gentleman at least consider amending the Bill to deal with that point? The Prime Minister replied: …this is yet another example of the right hon. Gentleman beginning a campaign with no purpose and no conviction"—[Official Report, 11 February 1998; Vol. 306, c. 362–4.] —a campaign with no purpose for about five days, until the Home Secretary stands before the House today and says, "On reflection, it was a campaign with a purpose—a campaign that was right on the button." I am happy to hear today not that the Home Secretary and the Chancellor have been talking to Lord Wakeham, but that the Home Secretary has been talking to Lord Wakeham and that he will table amendments to this part of the Bill.
On behalf of the Opposition, may I say that I welcome the fact that the Government have heard the views of the Leader of the Opposition, my views and those of others. I am glad that the Government have listened to the views of the PCC, Lord Wakeham and the newspaper industry. However, given what we know of the Lord Chancellor's views and his influence at No. 10, we will await the details of the amendment before claiming that the battle has been won and that the Government have been defeated on the issue. It would be rash to do otherwise.
I am happy to accept the Home Secretary's invitation to have discussions, and with his permission I will bring with me my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell), the former Attorney-General.

§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien)
I am grateful to the shadow Home Secretary, as the one section that he did not quote from my right hon. Friend the Prime Minister was the section in which my right hon. Friend said: We are already, as the right hon. Gentleman knows, consulting the newspaper industry and others on the issue."—[Official Report, 11 February 1998; Vol. 306, c. 363.] Those consultations have now borne fruit. I am pleased that the shadow Home Secretary has welcomed that. Will he now accept that we have been straight with the House and let the House know what has been going on? That has been particularly successful, has it not, and a bit galling?

§ Sir Brian Mawhinney
I am deeply grateful to the hon. Gentleman for extending his question, so that I could get my laughter muscles under control.
One thing that we will want to do in particular, as the Home Secretary will understand, is to examine how far the amendments still leave the PCC at risk. From what he said, it did not sound as though what he had in mind would give total protection to the PCC, but we shall await the amendments and the discussion that he promised us and to which we look forward.
Before concluding, I shall deal with one other fundamental aspect of the Bill. 792 Clause 6 makes it unlawful for a public authority to act in a way which is incompatible with the convention"—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1231.] —again, those are the Lord Chancellor's words. The Bill, he tells us, refers to public authorities "however defined". The Home Secretary made it clear this afternoon that, yet again, Parliament is to be denied a say in determining what should constitute a public authority. He was being extremely coy.
One must ask why Parliament should not define a public authority. The Lord Chancellor would not allow that to happen in the other place. It is clear that the Home Secretary, with his huge majority, will not allow it to happen in this place, even though we shall probe. If the Home Secretary is not prepared to define a public authority by identifying bodies, why will he not at least define a public authority by characteristic?
I tabled a parliamentary question last week for answer last Thursday. I asked—not unreasonably, I think—whether a public authority is defined by the spending of taxpayers' money—that is a fairly public activity—or by fulfilling a statutory function—that is a pretty public activity—or by having one or more Government appointees on its governing body. The answer that I got last Thursday was "I will reply soon to the right hon. Gentleman." The House will not be surprised to know that "soon" is not before today's Second Reading.
I tabled another question last week for answer on Friday, listing a series of bodies and asking the Government to give us an idea which of those bodies might constitute a public authority and which might not. I got a reply on Friday from the Minister, saying that he would reply soon. Of course, "soon" is not before the Second Reading of the Bill.
Why the coyness? If the Government do not want to set out a list of bodies, why will they not at least define the characteristics of a public authority? We know, from what the Home Secretary and the Lord Chancellor said, that public authorities includes Government Departments, the police, the BBC but probably not ITV, although perhaps the Independent Television Commission, and the Press Complaints Commission.
That may be changed by amendment, but the PCC came as something of a surprise, for it is an entirely private body in the ownership of the newspaper industry, funded by the newspaper industry and not fulfilling any statutory function; yet it is to be a public authority. The Home Secretary will have managed to scare charities throughout the country this afternoon by suggesting that they may also be characterised as public authorities.

§ Mr. Edward Leigh (Gainsborough)
Has no answer been given about what constitutes a public authority because the answer may be too embarrassing? While a huge organisation such as the Murdoch newspaper empire may be considered a private body, a small local parish church will be considered a public body because it conducts marriages, and will therefore be liable to be sued.

§ Sir Brian Mawhinney
My hon. Friend may be right. That may be to spare the Government embarrassment. It may be because the Government do not know. It may even be because the Government do not much care. If the latter were the case, it would be in the spirit of the Bill, which is the spirit of a Government washing their hands of their 793 primary responsibility to Parliament, while giving power to the judges, which secretly the Government do not mind, but do not have the nerve to do directly through the House.
I welcome the Home Secretary's announcement that he will consult with Churches about the amendments that were carried in another place against the Lord Chancellor and the Government in respect of Churches and Church schools. The House will have heard what he said about the legislation. It roughly corresponded to what the Lord Chancellor told another place. Another place did not accept those assurances and legislated accordingly.
The Opposition attach considerable significance to the changes that were introduced in another place. Were the Home Secretary, in the spirit that he has already displayed, to invite me to come in and talk to him about this issue also, I would be more than happy to accept his invitation.

§ Mr. Straw
indicated assent.

§ Sir Brian Mawhinney
I am grateful to the Home Secretary for indicating that I can look forward to such an invitation.
This is a Home Office Bill which owes much to the Lord Chancellor. It is not about whether hon. Members support human rights for UK citizens; we do. It is not about whether we support the convention and its interpretation by the European Court of Human Rights; we support the former, and most of the time the latter. When, occasionally, we have not agreed with the Court, we have nevertheless amended our law, as is required of convention signatories.
The Bill is not even about giving human rights to our citizens—they have them already. Whether intentional or not, the Bill is about diminishing the sovereignty of Parliament; it is about weakening our democracy and changing fundamentally the balance of the separation of powers between the Executive, the legislature and the judiciary. The result will be a further increase in the power of the Executive, the diminution of Parliament and the politicisation of the judiciary.
No Act of Parliament will set out how the broad statements of the European convention should be understood in British law or to whom they should apply. Members of Parliament elected from 659 constituencies across the nation to protect the public interest will be mere bystanders as the courts interpret the meaning of the convention and, perhaps inappropriately, gag our press. The Government like to claim that they keep their promises—they say that even when they are breaking them. Before the election, the Government did not promise the British people that they would undermine the sovereignty of Parliament—but that is what they are doing in this Bill. For that reason above others, we do not support the legislation.