§ Question again proposed, That the amendment be made.5.21 pm
§ Mr. Terry Davis (Birmingham, Hodge Hill)
As leader of the United Kingdom delegation to the Council of Europe Parliamentary Assembly, I am delighted that the Government have introduced the Bill at such an early stage in this Parliament.
The Bill is welcome for two important reasons. First, it has intrinsic importance. The shadow Home Secretary is correct to agree with the Home Secretary in saying that the Bill does not extend human rights. However, it does extend the effective implementation of those human rights, which is extremely important. Human rights are not simply a matter of legislation, convention and treaties. It is important that we are able to implement human rights. People must be able to obtain redress: they must be able to go to an independent body, plead that their human rights have been infringed and have that body adjudicate on the issue. An independent body exists in the form of the European Court of Human Rights in Strasbourg, which is one of the most important institutions of the Council of Europe. However, the Court is located in Strasbourg. The Bill enables British people to go to courts in this country to argue that their human rights have been infringed and obtain redress. My right hon. Friend the Home Secretary should be congratulated on bringing the Bill before the House of Commons.
While listening to the shadow Home Secretary, I was struck by the fact that he seemed to have only four arguments against the Bill. He did not argue against human rights: he made it clear that he agreed with and supported the convention on human rights. He could do little else: even the modern Conservative party accepts the convention on human rights, as did its predecessors over the past 50 years. The shadow Home Secretary argued that this is a bad Bill for four reasons.
First, the right hon. Gentleman said that the Bill would lead to judge-made law. He made it clear that he was not a lawyer. I do not claim to be a lawyer either, but I seem to recall that a great deal of law in this country may be regarded as judge made, as a result of centuries of British jurisprudence. Therefore, I do not think that the shadow Home Secretary's argument carries much weight.
Secondly, the shadow Home Secretary argued that the Bill would introduce a privacy law by the back door. He made great play of exchanges during Prime Minister's Question Time. I remind the shadow Home Secretary that Conservative Members seem to be having it both ways. During a debate in the Council of Europe Parliamentary Assembly in September, the hon. Member for Bournemouth, East (Mr. Atkinson)—the leader of the Conservative Members in the delegation—argued that we needed a privacy law and greater protection of privacy in view of the events surrounding the death of Diana, Princess of Wales.
It was Labour delegates who argued that, despite concern about those events, we should not hasten to legislate or devise a new convention on privacy, lest, in our haste and concern, we took an unbalanced view and impinged on the freedom of the press to publish reports about improper behaviour by public figures. There are 795 many examples of such behaviour: I am thinking back over decades, rather than the past few months. People—not least Robert Maxwell—have used the law successfully to prevent the publication of details of their financial transactions, business practices and so on. Labour Members are particularly concerned to ensure that we do nothing to strengthen the hand of Robert Maxwell's successors in the City of London and elsewhere, and thus enable them to avoid unwelcome publicity. However, the hon. Member for Bournemouth, East argued in favour of stronger privacy laws and called for a new convention to introduce them.
Thirdly, the shadow Home Secretary said that the Bill would lead to a conflict between the judiciary and Parliament. On the one hand, he said that the judges would use the convention to extend our rights and, on the other, he said that judges would use the convention to conflict with laws enacted by Parliament. We shall have to wait and see, but I think that that is most unlikely. However, if judges decide that an Act of Parliament passed by any parties represented in this place—parties dedicated to the concept of human rights and supporting the European convention on human rights—contravenes that convention, I think that we should be grateful to those judges for drawing that fact to our attention. I put it no stronger than that. Nothing in the Bill affects the sovereignty of Parliament. If the House of Commons and the House of Lords decide, in their wisdom, to stand against the convention on human rights, we shall do that—and pay the consequences in terms of our membership of the Council of Europe. However, I cannot conceive of that occurring. It has not happened in the past 50 years, and I cannot believe that hon. Members would be so cavalier as to disregard the convention's provisions.
Fourthly, the shadow Home Secretary's real motivation was revealed in a point that he made early in the speech. He said that introducing the procedure to enshrine these rights in British law and to involve the British courts would mean that more people would take action to secure their rights. I believe that a right is a right only if it can be obtained. It is no good having paper rights: rights are real things. People must be able to obtain redress quickly and cheaply. They should not incur the delay and expense involved with going to the Court in Strasbourg. That process takes far too long.
One criticism that I have of the Council of Europe is the time that it takes to bring a case before the European Court of Human Rights. By contrast, the shadow Home Secretary believes that it is a mistake to make it easier for people to exercise their rights. I do not agree—and neither do my right hon. and hon. Friends. We believe that if human rights are to be effective, it must be possible to obtain them quickly and cheaply. That means going to the British courts rather than waiting to bring cases before the European Court of Human Rights in Strasbourg—although that safeguard will remain.
§ Mr. Ruffley
Does the hon. Gentleman foresee an extension in the take-up of legal aid or the legal aid budget as a result of individuals seeking to claim their rights in United Kingdom courts? If so, where will the money come from?
§ Mr. Davis
It is quite possible—indeed, it was implied by the shadow Home Secretary, but has now been made 796 explicit by the hon. Member for Bury St. Edmunds (Mr. Ruffley)—that people will apply for legal aid and get it; otherwise, they will not be able to get their rights. Rights that are available only to the rich are not rights at all. My hon. Friends and I believe that for human rights to be real rights, they have to be available to everybody, not just to those who can afford to go to court.
§ Mr. McNamara
Is my hon. Friend aware of the case of Airey v. Ireland, where the Court of Human Rights in Strasbourg said that to be able effectively to seek justification of a right, there was a duty on the public authorities to ensure that justice was accessible?
§ Mr. Davis
My hon. Friend, who is an active member of the Legal Affairs and Human Rights Committee of the Council of Europe Assembly, is absolutely right. He spends a great deal of his time ensuring that people have access to human rights in other countries in Europe. He is right to remind us, and to support my contention, that we should do everything that we can to make it possible for people in this country to have access to human rights and to ensure that those rights are observed, regardless of the depth of their pockets. That is an important consideration. I do not think that my right hon. Friend the Home Secretary would accept for a moment that human rights should be restricted only to those who have the means to go to court.
There is a second reason to welcome the Bill: its symbolic importance. It is important from the point of view of relations with the whole of Europe not only that we are involved in the campaign for human rights in eastern, central and western Europe, but that we are seen to be concerned about human rights in our own country. By introducing the Bill, my right hon. Friend has demonstrated that the Government are concerned that human rights are part not just of our foreign policy, but of our domestic policy, and that human rights and the conventions of the Council of Europe are an integral part of our approach to Europe.
The convention on human rights is not being imposed on anybody. Every signatory to the convention has signed it because the Government of the member state and, in almost all cases, the Opposition agree with it. By integrating the convention on human rights into our law, we are showing that we are an integral part of the best part of European developments.
For all those reasons, my right hon. and hon. Friends deserve to be congratulated, and on behalf of the delegation to the Council of Europe Assembly, I do so.
§ Miss Ann Widdecombe (Maidstone and The Weald)
I shall devote my remarks to one particular issue, on which the Home Secretary touched equally briefly in his speech—the Church.
I raise this point almost with reluctance, because if the Division lists are right, when the original amendment was voted on in the House of Lords, it was defeated by a margin that was smaller than the number of Lords Spiritual who were not present. It continually amazes me that the Church of England can see danger ahead, yet never seems to pipe all hands to the deck. I object to the fact that it is often left to the laity to clear up clerical derelictions. However, that said, we should look at the two amendments that were considered in another place.
797 In raising this issue, I speak personally as a Christian and not just for the Christian Church, because if the second amendment has the effect that we fear it will have, it will affect all Churches regardless of denomination. It will, for example, affect ethnic minority Churches just as much as the established Church of the country.
I would have preferred that the first amendment that was considered in another place had been carried. It sought simply to exempt the Church from the provisions of clause 6, so that religious bodies would not be able to be defined as public bodies. That amendment was lost by a narrow margin, as I have said.
A subsequent amendment—to provide a defence for a Church, on the ground of religious belief, against actions that might be brought against it in its capacity as a public body—was carried in another place. Although I welcome that amendment and congratulate Baroness Young and Lord Alton of Liverpool on their sterling efforts to get it through, it is very much a second-rate option. I hope that the first option will be tested in this place.
Germany has decided that it is right to introduce additional safeguards for Churches and religious bodies. It did so because it does not share the interpretation of article 9 that the Home Secretary seemed to be putting forward. We would do well to follow the German example and make a point of protecting our Churches.
Having made rather disparaging remarks about the Lords Spiritual in another place, I must now tell the Home Secretary that he, too, was at fault, because the Churches were not consulted on this. Indeed, it appears that the definition of a public body was made clear only in Committee in another place. That seems a most extraordinary way in which to address the important issues that are in a Bill of such magnitude.
§ Mr. Leigh
Does my right hon. Friend agree that it would be extraordinary if the Government did not accept the amendment that was passed by the other place, because it merely puts on the face of the Bill what the Lord Chancellor assured the other place would be the position once the Bill was passed?
§ Miss Widdecombe
Yes. As I have made clear, I would prefer that we test the rather stronger option of exempting the Church altogether.
Although the Home Secretary did not consult the Churches earlier, I welcome the offer that he made at the Dispatch Box today. I very much hope that it will be taken up. I would like to get in an early request to meet him on that basis.
Arguably, clause 6 goes much further than the European Court of Human Rights, which has always treated Churches as religious groups and autonomous bodies.
Article 9, on which the Home Secretary relies, is concerned with the religious freedom of the individual. Indeed, if article 9, which guarantees the religious freedom of the individual, is not balanced by the protection of the freedom of a Church, an individual clergyman in, say, the Church of England, could make a public statement that he did not believe in God and claim a religious freedom of conscience, and the Church would have no defence to its sacking him. That could happen if an individual's rights in article 9 were not balanced by an overriding right of a Church to its religious beliefs and practices.
798 The Home Secretary named one or two anomalies that could arise, and said, "These can't happen." With respect, he did not demonstrate that to the House. If Churches are classified as public bodies for certain functions, abortion clinics could demand to be allowed to advertise in the Roman Catholic press; people who are entitled under civil law to remarry following divorce could demand the same from the Roman Catholic Church; and ethnic minority religions that do not practise equality of opportunity would be compelled to do so. If the Home Secretary thinks that that is impossible, I ask him carefully to study the speech of Lord Alton of Liverpool in another place, which includes examples of where such intolerance has been practised following the subjugation of the Church's religious function to civil rights and, probably, to the politically correct lobby.
We are told that the purpose behind the Bill is to protect the rights of the individual against the state. It appears, however, given the Churches' position, that individuals and Churches will lose their rights of religious freedom and will be suppressed by state law. I find that odd.
To turn away from the Church, I have little respect for a Bill that talks about the right to life and extends that right to absolutely everyone except the weakest life of all—that in the womb.
§ Mr. Kevin McNamara (Hull, North)
I listened to the shadow Home Secretary, the right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney), having listened to my right hon. Friend the Home Secretary. The more I listened to my right hon. Friend, the more convinced I became of the value of the Bill. The more I listened to the right hon. Member for North-West Cambridgeshire, the more I thought that he did not understand the Bill. For him, as someone who from time to time introduced statutory instruments of 160 or 250 articles—for example, the Education Reform (Northern Ireland) Education Order 1989—that could not be amended anywhere to suggest derogation from parliamentary sovereignty was, I found, a bit rich.
I shall talk about the Bill. I am disappointed that it does not contain the whole of the preamble of the European declaration on human rights. Two of the introductory paragraphs from the preamble demonstrate the underlying principles behind the declaration, which we should be welcoming and accepting as the spirit of the proposed legislation that is before us.
The paragraphs refer to the signatory Governments in terms ofReaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend;Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration".We should be proud that we are putting those sentiments into our legislation. We should be proud also that it was British draftsmen who played a major part in setting them out. We should delight in the fact that, as we are about to celebrate the 50th anniversary of the Council of Europe, 799 the provisions to which I have referred are to be incorporated in our domestic legislation. We should all be proud of that.
We are following in the great tradition of liberal and freedom legislation, which has its roots in our own Bill of Rights and in the American declaration of independence. The convention's rights lie also in the writings of Tom Paine and the declaration of the rights of man of the French revolution—indeed, all those great things that make for individual human liberty. Contained within the convention are all the great ideas for which people were fighting in the course of 19th century liberalism. It is sad that only at the end of the 20th century are we incorporating such rights in British law.
The main defect of the proposals before us is that they are concerned primarily with 19th century liberalism. Economic, cultural, ethical and other freedoms are not included in the Bill, except briefly and in a negative way in only one of the clauses.
The Bill is probably the most far-reaching and important of all the constitutional measures that have been introduced by the present Administration. It will require common law henceforth to be developed consistently with the European convention on human rights. It will require also that all primary and secondary legislation be henceforth construed as far as possible so as to be compatible with the provisions of the convention. What can possibly be wrong with that? Which of the human rights as listed do we not accept?
§ Mr. Hogg
The hon. Gentleman might care to focus on the problem that although the language of the convention is, of course, perfectly acceptable, rights are expressed in very general terms. For more than 40 years, the European Court has interpreted those rights to an extent quite beyond that ever contemplated by the founding fathers. It is a moving convention. It is a mistake, therefore, to talk about it as a fixed system of law. The problem is that it is a constantly changing system of law that is developed by a continuing stream of judicial interpretations outwith the contemplation of the founding fathers.
§ Mr. McNamara
What a splendid point. English common law developed in exactly the same way through attitudes and interpretations. Once judicial interpretations begin, we have judicial interpretations of judicial interpretations of judicial decisions.
I am surprised that Opposition Members, many of whom are learned in the law, find it strange that judges should be examining declarations and interpreting them, bearing in mind the generality of so many of the laws that we have introduced.
More important is that the breadth of the Bill is enhanced by the fact that all courts and tribunals will have to have regard to its terms, including all public authorities. I take the point made by the right hon. Member for Maidstone and The Weald (Miss Widdecombe). They will be bound to act consistently with convention rights as set out in the Bill.
It seems that that causes problems for Opposition Members. Some of them ask, "What will happen to the Churches?" I understand that argument and I take it on board. The answer is that we shall have interpretations. 800 Ultimately, however, the issue could still go to Strasbourg, followed by an interpretation that Opposition Members may not like. It seems that those on the Opposition Front Bench would be prepared to accept such a ruling. In other words, the position remains the same—unless the Opposition are arguing that we should start to pick and choose, accepting some interpretations and rulings but not others. We cannot do that and remain in the overall organisation.
§ Sir Brian Mawhinney
Does the hon. Gentleman think that Churches should be public authorities in terms of the Bill?
§ Mr. McNamara
No, I do not. Whether they are or are not, decisions will be made in Strasbourg, despite what my right hon. Friend the Home Secretary may say. I think that we can find a way of removing the Churches from that definition. Indeed, I welcomed what my right hon. Friend said. I hope that I can be a member of the happy club that will talk to him about these matters, with an archbishop here and a cardinal there, along with the right hon. Member for Maidstone and The Weald and a spokesman for the Liberal party. We might even go to a remote island to sort things out while at a spa, for example.
§ Mr. McNamara
Perhaps not at this time of year. Given the attitude that some Opposition Members are taking, it might be better to go to Lough Derg.
§ Miss Widdecombe
The hon. Gentleman said that he would be quite happy to remove Churches from the definition. I take it that if the Opposition were to table the original Lords amendment in this place, the hon. Gentleman would support it.
§ Mr. McNamara
I never give hostages to fortune, especially in the form of Conservative amendments. I shall wait and see before reaching my own decision. I merely add that I would have loved the right hon. Lady to be in the Lobby with me when we sought to stop the Government taking money away from single parents. That would have been great, because it would have removed some of the pressure on single mothers to have an abortion.
It is interesting to note who will be covered by the Bill, because public authorities such as the Immigration Appeal Tribunal, the employment appeals tribunal, the police, the Prison Service and immigration adjudicators have a significant effect on the rights of individuals. The application of certain European cases will also be important. The Gibraltar case of McCann v. United Kingdom may involve an obligation on the state not to organise police operations so negligently that they result in incidents in which individuals are inevitably shot by agents of the state. That would have important ramifications for Northern Ireland, for the people killed in Loughgall and for the 20-year discussion that we have had about the use of lethal force in Northern Ireland.
Ribitsch v. Austria involved mistreatment of people in custody. In the important case of Soering v. the United Kingdom, the European Court of Human Rights gave extra-territorial effect to the convention. It declared that 801 if a person were to be extradited to the United States to face a charge that could result in capital punishment, an undertaking would have to be given that that person, if found guilty, would not be placed on death row.
I welcome my right hon. Friend's remarks about the press. It will be interesting to see the amendment, and whether I agree with it will depend on what it contains, but it seems reasonable. But why the argument? Decisions of the European Court of Human Rights could result in privacy laws that would be binding on us. That is the answer to those who argue about the press, and about whether we should or should not give way to Rupert Murdoch. The European Court of Human Rights would be the final arbiter, and we would have to accept its decision.
Following the sad death of the Princess of Wales, I took part in a Council of Europe colloquy on privacy laws. The jurisprudence of the Council of Europe is in favour of the freedom of the press. Member states that have introduced legislation to protect the privacy of the individual were the most vociferous in demanding such laws, whereas others felt that countries should not legislate too harshly so as to protect the independence of the press.
The Press Complaints Commission can regulate the press to prevent people from being annoyed about invasions of their privacy, and can provide safeguards so that the press can pursue its legitimate activities. However, all the members of the Press Complaints Commission are appointed by press barons. It is financed by press barons. It is regulated by press barons, and it adjudicates on its members, depending on their size and wealth. It can rap them over the knuckles, but one never hears of newspapers being punished by not being allowed put their editions on the streets for two days, or by having to pay a heavy fine. That would be a Press Complaints Commission with real teeth.
The Bill does not deal with equality issues, except under article 14 of the convention. There is a major weakness in the anti-discrimination provision. It is not a free-standing prohibition on discrimination: it is parasitic on the other provisions of the convention and subsidiary to them, as it is to be brought into play only when other convention rights are at issue. It does not include the concept of indirect discrimination. The provision is negative: it prohibits some discrimination, and it does not require the Government to promote equality of opportunity. I say again that the Bill deals with individual rights, and does not deal with community, cultural, ethnic and language rights.
The Bill will be important for Northern Ireland. In its policy statement, the Ulster Unionist party said that it would accept legislation that gives effect to the European convention on human rights for any assembly that may be established. It said:Consequently…a cumbersome structure of checks and balances would be unnecessary.I read that as a threat to the Fair Employment Commission in Northern Ireland, but I hope that I am wrong. Any agreement that emerges from the present talks, or any action taken by both Governments if the talks should sadly fail, should include a clear and unambiguous declaration of equality as a human right. An agreement should contain certain principles. No public authority should be able to discriminate unfairly, directly or indirectly, against anyone on the grounds of race, gender, 802 sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, nationality or national origin. That is a pretty comprehensive list, but other grounds could be added if necessary.
Discrimination is only part of the problem. Public authorities should be under a duty to promote full and effective equality of opportunity between all parts of the community in Northern Ireland in any areas of economic, social, political and cultural life in which they are involved. A Bill imposing a duty on public authorities to provide equality of opportunity was introduced by Labour Members in the previous Parliament. It was supported by my right hon. Friend the Secretary of State for Northern Ireland, who was then the Opposition spokesman, and by the leader of the Ulster Unionist party.
Social need should be properly targeted, which may require affirmative action programmes. Positive discrimination may be necessary to tackle inequality.
We should establish principles that would enable full equality to be achieved and would give people the ability fully to participate in decision making. The European Union insists on such principles when moneys are allocated to Northern Ireland to underpin the ceasefire and to redress the balance in disaffected and underprivileged areas.
Those ideas go beyond the concept of human rights in the Bill. We should be dealing not with 19th century civil and human rights but with what should happen in the 21st century. Many of the points that I have made have been covered by the recent Council of Europe framework convention on national minorities. Such matters must be put into practice.
Public bodies must be put under a duty to create arrangements to ensure that their various functions and responsibilities are carried out with due regard to the need to comply with equality and non-discriminatory legislation.
I do not want to bore the House with the rest of my recipe for what needs to be done in Northern Ireland, but I suggest that some of the issues that we are discussing in relation to that area should concern Ministers, for they apply here in Great Britain. Many issues relating to the Equal Opportunities Commission, the Commission for Racial Equality and the proposed disabilities commission, for instance, go beyond the realm of individual human rights, involving groups and classes of human right—ethnic, cultural, linguistic and so on.
What I have said, I have said with the aim of contributing to an improvement in the Bill. In particular, I should like Ministers to reflect on this: whatever we decide to do about public authorities—and I hope we can find a way of dealing with that issue—we should also consider those who are entitled to come before the courts. At present, we are talking only about the individual who seeks redress. We should consider whether—as can happen now—non-governmental bodies can ask to bring cases before the courts for a declaration, so that a court can almost anticipate what may happen. I am thinking of bodies such as the EOC, the CRE, the Standing Advisory Committee on Human Rights, Liberty and other non-governmental organisations that are involved with personal human liberties, cultural or individual.
Finally, the right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) spoke of the great freedoms that the previous Government gave trade union 803 members. I thought of the greatest freedom that he gave them: when they are engaged in a legal strike, after going through all the hoops introduced by Conservative legislation, their employers can still dismiss them. So much for the Conservatives' idea of human rights.
§ 6.1 pm
§ Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)
The Bill is the centrepiece of the constitutional resettlement on which the Government embarked before the election, with the full-hearted support of my right hon. and hon. Friends. As is well known, we entered into a broad agreement on a legislative programme for constitutional reform that was unprecedented not only in itself, but in its scope and ambition. I have no doubt that that was right, for constitutional reform requires broad cross-party support if it is to be effective and stable.
In the foreword to the document that our two parties published before the election, the right hon. Member for Livingston (Mr. Cook)—now the Foreign Secretary—and I wrote:Democracy and freedom cannot be taken for granted. Every generation has a responsibility to ensure that these principles are given fresh meaning and defended against any tendency on the part of those in power to diminish their accountability to the people.I believe that, in the Bill, the Government have recognised the strength of that thought.
We proposed that the fundamental human rights and freedoms guaranteed by the European convention on human rights since 1951 should be incorporated in United Kingdom law by Act of Parliament. Hitherto, to obtain the protection of the convention, our citizens have had to go to Strasbourg and appeal to the Commission and the Court, a long and expensive course which denies effective remedies to many of them. The Bill brings those rights home, in the words of the Government's paper.
As the Home Secretary said, a number of attempts have been made in Parliament to achieve that end. The late Donald Wade and Lord Scarman introduced such measures, which received the support of another place, and, as long ago as December 1983, I introduced a private Member's Bill with the same purpose. That Bill enjoyed cross-party support in the House of Commons. It is worth recalling, in the light of the bizarre Conservative amendment, that it was sponsored by—among others—Sir Geoffrey Rippon, Norman St. John-Stevas, Terence Higgins and Sir Edward Gardner, of whom the Home Secretary spoke.
It is not surprising that the Bill enjoyed Conservative support then. The convention rights had originally been advanced in the Council of Europe by Sir David Maxwell Fyfe, as a rapporteur of the Council of Europe's committee on human rights. He later became a Conservative Lord Chancellor, as Lord Kilmuir. The convention owed a great deal to the common law of this country, and no Conservative Government have seen fit to question the entitlement of British citizens to seek protection of those rights by individual petition to Strasbourg.
What I think will astonish many observers of the new Conservative party under the leadership of the right hon. Member for Richmond, Yorks (Mr. Hague) is the 804 spectacle of the Conservatives' preferring rights to be protected in future not by our own judges in our own courts, but by foreign judges in a foreign court. What a falling-off is there. It is hard to escape the conclusion that, in attacking a Bill to repatriate human rights, the new Conservative party is cynically hoping that the convention rights will simply wither away through inaccessibility.
The language with which the Conservatives have dressed up their amendment is fanciful, in respect of both what it implies about our present constitutional arrangements and what it purports to believe would be the consequences of the Bill's enactment. It is fanciful to suggest, as the amendment does, that our constitution effectively reflects the principle of separation of powers between Executive, legislature and judiciary.
A large part of the speech of the right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) was devoted to an excoriation of the Lord Chancellor, who in himself is a standing illustration—if one were needed—that the powers are not separate within our constitution. He—the senior judge of the realm, legislator in the upper House and member of the Executive—is a full member of the Cabinet. It is cant to talk about seeking to protect our constitution in the way in which the right hon. Gentleman did.
There is much to be said for a greater separation of powers than we have known in this country. The executive arm of government is too dominant in our constitution. The present Administration deserve credit for recognising that and voluntarily taking steps in the Bill to make it more accountable. The threat to our freedoms can be found in the propensity of British Governments to use this House and this Parliament simply to ratify their will. It is fanciful to suggest that the Bill will lead to a diminution of Parliament.
Unlike earlier attempts to incorporate the convention, and unlike the European Communities Act 1972—which, as the House was reminded, was introduced by a Conservative Government—the Bill does not give primacy to treaty rights where there is a provision in this Parliament's legislation that is incompatible with a convention right. In their endeavour to ensure the supremacy of Parliament, the Government have followed a novel course. They have provided only that the courts may make a declaration of incompatibility. They have eschewed the more normal statutory interpretation that there has been an implied repeal if Parliament has enacted a measure subsequently. As a result of the form in which the measure is couched, it falls to Parliament to decide whether to safeguard the convention right by the means set out in clauses 10 to 12.
It might be argued that a Bill of Rights should indeed be the fundamental law of the land, impliedly repealing all incompatible legislation, but that is not the way of this Bill. Far from introducing, as the amendment suggests, an "incompatible constitutional framework", the Bill is deferential to the sensitivities of the judiciary about being given an overriding constitutional power. That is no doubt why the Bill enjoys the support of the Lord Chief Justice, the Master of the Rolls and an overwhelming majority of senior members of the judiciary who are to likely to be called on to apply the convention rights and jurisprudence of the European convention and the Court of Human Rights if the Bill is enacted.
§ Mr. Hogg
Before the right hon. Gentleman leaves clauses 10, 11 and 12, would he be good enough to tell 805 the House whether he and his party support the proposition that primary legislation should in this case be amended by statutory order, or agree with the proposition of my right hon. Friend the Member for North-West Cambridgeshire (Sir B. Mawhinney) that, should primary legislation require amendment, it should be amended by primary legislation?
§ Mr. Maclennan
I disagree profoundly with the right hon. and learned Gentleman. The matter need not have been dealt with in the way in which it has been in the Bill. I would have taken sustenance from recalling his learned father's words about the constitution—when he was not in office—and the tyranny of elected representatives. The Bill falls over backwards to secure the supremacy of Parliament—further, frankly, than I think was necessary. I certainly would not support an amendment along the lines that the right hon. and learned Gentleman is suggesting, which would not deal with problems that arise when a measure has been found to be incompatible with the European convention and which would leave the litigant without a remedy and inevitably force a long and expensive course of action through the Strasbourg courts. Indeed, in some cases, such a process would greatly embarrass the Government, particularly where it is clear that the law is not on the Government's side, as has often been the case.
I said that the Bill enjoys the support of the senior judiciary. It ought also to enjoy the support of the legislative arm of our constitution because it is so deferential to the authority of Parliament. If Parliament acts to repeal measures that are incompatible with the convention, it will perhaps do something to strengthen the regard in which Parliament is held as the guarantor of the fundamental rights and freedoms of our citizens. Too often have we in recent years been seen to be powerless in the face of the abuse of power by the executive arm of government; too often have protests fallen on deaf ears; too often have individual Members of Parliament had to recognise that they were in no position to set aside such abuses.
The Government have made it plain that they will look favourably on the establishment of a Standing Committee to advise on the working of the Act in practice. I welcome such a development. I hope that the President of the Council will bring forward recommendations to give effect to that. The Conservatives' amendment is unworthy of a party which claims to have regard for individual freedom.
Looking to the future, I would favour a constitutional settlement that rebalances the powers of the Executive, the legislature and the judiciary. Such a written constitution, accepted by the people, would reflect the wider distribution of public power and secure greater accountability for its exercise. It would embody the settled view of people as to where the line should be drawn, delimiting the exercise of public power. But that is not for today. The Conservative party, in its amendment, seems simply to be trying to take some of the shine off a golden measure, which sets enforceable legal limits to the great powers of government. The Bill, which secures the European convention in the laws of the United Kingdom to provide effective remedies in our courts for breaches of convention rights by public authorities, including private bodies that exercise public functions, is greatly to the Government's credit.
806 The introduction of the Bill in another place has given us in this House the benefit of the opinions of many who are learned in the law. Since the Conservative party's amendment refers tothe politicisation of the judiciary",I should like to draw attention to the remarks of the Lord Chief Justice, Lord Bingham of Cornhill, on Second Reading. In answer to the fear that judges might be drawn into politics, he reminded the other place that that had not happened in other member states of the Council of Europe that had already given effect to the convention. He pointed out:judges already from time to time find themselves deciding cases which have political, sometimes even party-political, implications. The judges strive to decide those cases on a firm basis of legal principle."—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1246.]I do not doubt that that is what our judges will do if the Bill becomes law.
In the development of the role, it will be helpful to the judiciary to be able to take account of the jurisprudence of the European Court of Human Rights and of the opinions and decisions of the Commission, as provided in clause 2. It will also be helpful that clause 3 requires, so far as is possible, that legislation be read and given effect in a way that is compatible with convention rights.
There are two matters about which there has been recent debate and which we shall no doubt wish to consider in detail in Committee. The first concerns the position of Churches. It is indeed surprising that this issue should have arisen, since article 9 of the European convention specifically gives explicit and powerful protection of the rights of conscience and religion. Article 2 of the first protocol of the convention gives rights to parents in respect of religious education in accordance with their consciences. If doubts remain, they must and shall be addressed. I cannot see any practical problems for the Churches that will flow from this measure, which is designed to safeguard individuals from the misuse of public power.
The second anxiety that has emerged relates to the impact that article 8 of the convention on guaranteeing respect for privacy may have on the freedom of the press. The anxieties that have been voiced are misplaced. Article 10 of the European convention secures the right to freedom of expression, limited only by such restrictions as are prescribed by law and necessary in a democratic society. Those two articles are clearly balanced. They have been tested in a number of cases before the European Court. The Home Secretary spoke particularly of The Sunday Times and the thalidomide case and the "Spycatcher" case, which have made clear that claims to personal privacy must not be allowed to defeat the vital public interest in free expression except where really necessary and where what is at stake really is the individual's private life.
Article 8.2 qualifies the right to respect for personal privacy where it is necessary to protect the rights and freedoms of others, including the right to freedom of 807 speech. It is not only within the jurisprudence of the Court but even in the very language of the convention that primacy is given to freedom of expression.
§ Mr. Bercow
I am following closely the thrust of the right hon. Gentleman's argument. What does he think would happen in the event of a conflict between a convention right and European Community law?
§ Mr. Maclennan
The convention right applies within the EU and if there were a conflict, it would prevail. The hon. Gentleman will be aware of the movement within the EU to incorporate the convention as a matter of EU law, but that is simply to reflect the view and wish of the member countries to give primacy to the convention rights. EU legislation greatly amplifies the broad principles and we in this House have seen the anti-discriminatory provisions of employment law advanced more rapidly under the EU provisions.
§ Mr. McNamara
The hon. Member for Buckingham (Mr. Bercow) has a point, which we will have to discuss in Committee. As a result of the Amsterdam treaty, the EU has given further powers to the European Court of Justice, including some in human rights. The possibility of conflict does exist.
§ Mr. Maclennan
There may be conflict, but I would take the view that the EU institutions will expect to give primacy to the convention provisions on fundamental rights and freedoms.
The thrust of the Bill is to secure remedies in our courts and to open up access. I wish to address two matters that have not been touched upon in the debate and on which I must express some reservations—even disappointment. These matters seem potentially to limit the wider aim of the Government to open up access.
The first concerns the matter of standing. It is unfortunate that the Bill imports the European victim test, thus requiring interested bodies to seek to extend the protections of the convention rights to file amicus curiae briefs rather than to be party to the action. It is unfortunate that the Government have not accepted the standing rules governing judicial review generally. I hope that that will be the subject of an amendment.
My second disappointment is that the Government have not yet concluded that it would be right to set up a human rights commissioner or commission—or similar public body—to provide advice and assistance to those seeking the protection of the convention rights, as envisaged by the Labour and Liberal Democrat parties prior to the election. We consider that it would be useful to have such a body, able to bring proceedings to secure effective compliance with the convention, whether by judicial review or by representative proceedings on behalf of a number of people.
I am aware that the Government have not finally rejected the proposal and they have indicated that it might be considered by a Select Committee of the House, if one were to be appointed. I hope that if we are faced with delay, it is delay only and that that delay does not of itself diminish the effectiveness of the measure at the beginning of its life. There is also an important potential educational 808 role for such a body in helping to create a climate in which the very thought of advancing measures that might fall foul of the convention would be diminished. Such a body would greatly contribute to widening awareness, as well as to preventing and remedying breaches of fundamental rights and freedoms.
In conclusion, I express my admiration of the speed with which the Government have proposed the Bill, honouring a core constitutional commitment. I also acknowledge the way in which the Home Secretary and the Lord Chancellor have listened to concerns and have shown openness to ideas capable of improving the Bill. I do not share the view expressed by the right hon. Member for North-West Cambridgeshire that listening to people's ideas about a published Bill is a matter of which Ministers should be ashamed or embarrassed. In my view, it is the very reverse. To publish a subtle and clever Bill of such major importance—couched in broad terms as it is—is to take the risk that some of its measures may have an effect that is not initially perceived, but the Government are right to have done so and to have proceeded in that way.
The Government were right to listen, and they have already accepted one or two amendments in another place that have definitely improved the Bill. This is a measure in which they can take legitimate pride.
§ Mrs. Ann Cryer (Keighley)
I welcome the fact that the Labour Government have proposed the Bill, thus fulfilling another pre-election promise to our electorate. I know that there is widespread support for the Bill in my constituency.
As one of the two Yorkshire representatives from the Back Benches on the Council of Europe—the parent body of the European convention on human rights—and a member of the Council's human rights committee, I am particularly pleased that our constituents will have access to the redressing of human rights abuses here without the expense and inconvenience of travelling to Strasbourg—which, I can say from experience, can be intensely cold in January.
Article 8 of the convention provides us all with the right to respect for our private and family life, home and correspondence. It goes on to talk ofno interference by a public authority.I wonder whether this will mean that we can expect some protection of privacy from excessive media prying—eventually through case law. I would like to mention a few of my thoughts, based mainly on my personal experience from 19 years as the spouse of a Member of Parliament, regarding the right to privacy for Members of Parliament, other public figures—including local councillors—their families and private individuals.
On a sliding scale downwards, I will start at the top with our children and grandchildren. They did not ask us to go into politics, and most children of Members of Parliament, public figures and Ministers would wish that we had not—particularly when they are young. Their lives and behaviour are regarded as fair game for reporting, or misreporting. I would like to think that the Bill will eventually extend to them protection from situations which, over the years, many of our offspring have suffered.
809 Many years ago, I was asked to pay cash to a person with media connections. He wrote:I would like to get this matter resolved so that, heaven forbid, it does not enter the public domain—as polite a blackmail note as one could wish for. His dispute with one of my children was not a matter of public interest and if we had had a right to privacy, he could not have made his threat and the harassment by a Sunday newspaper of me and my family might not have happened.
Moving down the scale, there is the middle ground. I am not sure how much protection of our private lives we can expect, since sometimes the private self and the public person become confused. I shall mention just two of many experiences—one sad, one silly. When I was kept overnight in Watford general hospital due to dangerously high blood pressure following the road traffic accident in which my husband was killed, a hospital security guard had to spend the night in the corridor outside my room to make sure that none of the reporters gathered at the hospital entrance could get through to me. Should the hospital have been put to this trouble? Should I have had that additional stress?
The other incident—the previous year—consisted of a telephone call from the News of the World asking, in an accusing tone, whether I was aware that a massage parlour was operating across the road. I was not, and I am unsure to this day what I was being accused of. However, the story, like the dead donkey, was, thankfully, dropped.
At the very bottom of the scale—and, in my view, with absolutely no right to protection—are those Members of Parliament who bring discredit to all of us by accepting cash or perks for questions, for writing to a Minister or even for booking a dining room. Investigative journalists who uncover such behaviour perform a service to this House and to democracy generally.
The Church of England asks its clergy on ordination:Will you strive to fashion your own life, and that of your household, according to the way of Christ?Perhaps the oath taken by hon. Members on entering Parliament could be amended to say that we will strive to fashion our lives according to the ethics of honesty and integrity. As that is unlikely to happen, I simply ask that no right to privacy should protect hon. Members whose behaviour falls short of public expectation.
§ Mr. Humfrey Malins (Woking)
It is always an enjoyable experience to address a packed Chamber at 6.29 pm. I declare an interest as a recorder of the Crown court and as an acting metropolitan stipendiary magistrate, both of which judicial functions I have undertaken for some years, and in each of which it has been my duty throughout to apply the law as it is made by our elected representatives in Parliament.
I may be the only speaker in our debate tonight who has had considerable judicial experience. That experience makes me acutely aware of the difference between the roles of the judiciary and of the legislature. To be blunt, I am against the Bill in principle. I believe it to be an attack on our democracy and a complete departure from our existing custom, whereby we in the House make the laws, and the judges apply them.
In developing the common law and in construing statute law over the years, judges have to a very limited extent been making law rather than interpreting it, but the 810 Bill gives judges unprecedented licence to make new laws. The Bill says to our judges, who are not elected by or answerable to the people, "Here is a general principle. Go away and invent the law." That is not what judges are there for.
Our constituents would be aghast if they were to understand how much power we are putting into the hands of unelected judges. We in the House are the democratically elected representatives, elected by the people for the specific purpose of making laws based on their wishes. We are being asked to hand that power to the judges. In this democracy, as in many others, the elected representatives should make the laws, and the judges interpret them.
We have never said to our judges, "A contract is an agreement between two or more parties, usually for consideration. Now go and invent the rest of the law of contract, including the sale of goods." We have never said to the judges, "Here is another article: claims for compensation should be brought within a reasonable time. Now go off and write yourselves your own Statute of Limitations", but that is exactly what the convention does.
It is as if we were to say to our judges, "Here is an article: people must not travel on our roads at an excessive speed. Now go off and decide for yourselves what the speed limits are to be." Much as I admire our judiciary, I do not want to be governed by the judges. It has been tried before, by the Jews in 1000 BC, when they were governed by judges who apparently took their laws direct from God. It did not work terribly well then, and I do not think that it will work terribly well in the future.
Some say that to bring the convention into our law is some kind of progress on the human rights front, and that it is a guarantee of civil liberties to our people. I regard that argument as thoroughly bogus, because we, as democratically elected representatives, are the true guarantee of civil liberties in this country.
I advise the House to consider the language of the articles that we will incorporate if the Bill is enacted. It is language for another time—just after the second world war, when the atrocities committed by the Nazis and others had to be dealt with—and not for the 1990s.
Article 2 says:Everyone's right to life shall be protected by law.Article 3 says:No one shall be subject to torture or to inhuman or degrading treatment or punishment.Article 4 says:No one shall be held in slavery or servitude.Those extremely worthwhile articles were designed to cope with the problems of another era. Today, they are nothing more than pious platitudes, lacking the clarity even of the ten commandments; their language has no relevance in this country in 1998.
§ Mr. Desmond Browne (Kilmarnock and Loudoun)
Perhaps the hon. Gentleman can explain to the House why, then, there has been an apparent acceleration since about 1990 in the number of cases going to the European Court of Human Rights from this country.
§ Mr. Malins
I understand that some people do indeed take cases to the Court, and perhaps more from this country than from some others—after all, we have a high 811 population—but the reality is that very few cases are taken there. If the Bill is enacted, many, many more cases will be taken to judges here, and they will be expected to make law, which is not their function.
To incorporate into our law, in 1998, an article prohibiting slavery is, arguably, deeply offensive, given that we were the first nation in modern times to make slavery unlawful, having abolished it in August 1834. Future historians reading this debate will be astonished by the fact that we are enacting an anti-slavery measure in 1998.
§ Sir Nicholas Lyell
My hon. Friend makes an extremely good point. The declaration of independence in the United States promisedlife, liberty and the pursuit of happiness",but slavery existed there for, I think, 84 years. The leading American judge, Learned Hand, wisely said that liberty should lie in the hearts of the people, because, regardless of its status in constitutions or Bills of Rights, it was either there, in which case no court need save it, or it was not, in which case no court could save it.
I agree entirely.
We must think through the consequences of incorporation. I believe that the convention will be used an enormous number of times in claims to stop deportation. I cannot see how any woman of marriageable age could ever be deported to a country in which her right to marry was exercised by her relatives.
The convention applies to all those physically present within the jurisdiction, and article 12 states:women of marriageable age have the right to marry".A submission by some learned counsel that a woman's right to marry does not include the choice of her husband would, as Clint Eastwood is prone to say, really make my day.
I take another example relating to article 8. China's respect for family life consists of limiting each family to one child. Will economic migrants no longer be returnable to China? We must be very cautious and look ahead. I predict that most of the claims that will be made under the convention will be challenges to deportation.
I imagine that the founders of the convention would have regarded many recent events as absolutely absurd and nothing to do with what they had in mind in the 1940s. I cite as an example the Moroccan who was given leave to enter the Netherlands to marry a girl. After a few weeks, the marriage broke apart and the husband was to be deported for what were apparently perfectly proper reasons. However, because his wife had given birth to a child, the Government's decision to deport him was, under the article covering respect for family life, overturned on the grounds that he might—just might—want to see his daughter.
§ Mr. Malins
I speak as an individual from the Back Benches and not for my party; my view is that the current situation is the lesser of two evils.
812 I refer also to the case of a man who was ordered to be deported from a country that was a signatory to the convention, for proper and lawful reasons. He was discovered to have AIDS, and when he was able to show that the treatment for AIDS in the country to which he was to be deported was lamentable, he was allowed to stay under the article dealing with inhuman and degrading treatment. We will face very real problems further down the road if we incorporate the convention into our law.
I shall say a word on the privacy debate, which I think is wholly misleading—it has nothing to do with the Bill's real vice, which is to give our judges huge, open-ended powers. The arguments about privacy should be settled in the House of Commons. The problems that we now face concerning privacy reflect the fact that we have not yet done so; we should have sorted the matter out a long time ago.
We should consider the position of judges in, perhaps, 50 years, when they will have to apply the convention in every aspect of social policy. As Members of Parliament, we shall slowly but surely find that decision making is being taken away from us, and that decisions that should be made by elected representatives will be in the hands of unelected people. That will be a sad day for democracy.
§ Mr. Paul Stinchcombe (Wellingborough)
I congratulate my hon. Friend the Member for Keighley (Mrs. Cryer) on her courageous and moving speech, in which she referred in particular to personal traumas. The whole House will have been interested in, and learnt from, her speech.
The 20th century has been an age of great paradox. It has witnessed barbaric examples of man's inhumanity to man, but it has also been an age in which fundamental human rights have been recognised by every advanced democracy. Those rights define the kind of world in which we want to live; they make us free; and they are necessarily matched by responsibilities. When, in society with others, we claim the right to be treated equally and with dignity and respect, we must treat our fellow citizens accordingly.
None of this is alien to the United Kingdom; the language of rights and responsibilities is ours. Moreover, it is not alien to the Labour party, old or new. A Labour Government were in power when the United Kingdom took the lead in drafting the European convention. Ernest Bevin, the Foreign Secretary in the great Attlee Government, ensured that the United Kingdom was the first to sign and ratify the convention. In 1966, the then Labour Government took the next step.
§ Mr. Desmond Swayne (New Forest, West)
Why did not the Labour Government of the time, who were so concerned to draft and sign the document, feel the need to go further and incorporate the convention into our domestic law?
§ Mr. Stinchcombe
As the hon. Gentleman will be aware, constitutional arrangements evolve. That is as it should be; constitutions are living things. If the hon. Gentleman will bear with me, I shall explain how the constitution will change further.
We are on a slow march to greater emancipation. In 1966, we took the next step when we allowed individual citizens to claim rights under the convention 813 and take the United Kingdom to the European Court of Human Rights. At the turn of the millennium, the new Labour Government will take another step towards emancipation when, through the Bill, they will give greater effect to the fundamental rights that the Conservative Government also recognised.
For 50 years, not only Labour Governments, but Conservative Governments have recognised that the human rights that are embraced by the convention are legally enforceable. It is right that the new Labour Government should take the further step and say that those rights should be recognised not only in international law, but by the judges in our courts.
I tell the hon. Member for New Forest, West (Mr. Swayne) why we should take that step; it is a simple argument. We need no lofty constitutional theory to justify the Bill, just plain common sense. The rights under the convention are already recognised, but they are enforceable only in Strasbourg. Our citizens have to wait five years and spend perhaps £30,000 to have those rights protected. Delay and expense are enemies of justice. Cutting delay and cost will enhance the legal protections of the system and make it fairer, in ways that ordinary people will understand. It will give real benefits to real people.
§ Mr. Ruffley
Has the hon. Gentleman asked the Chancellor of the Exchequer whether further resources will be made available to furnish future litigants with the legal aid that they will need to take advantage of these new rights?
§ Mr. Stinchcombe
If the hon. Gentleman has read Hansard, he will know that I contributed to the debate on the legal aid reforms when they were first proposed. I will do nothing to stand in the way of poor people's access to justice, and I am surprised that other people would contemplate doing so.
§ Mr. Bercow
If this matter is one of basic common sense, why have not the Government chosen direct incorporation? Instead, as the hon. Gentleman knows, they have opted for a circuitous route and for the fast-track procedure, which does not protect parliamentary sovereignty, but promotes the convenience of the Executive. Has he nothing to say about those matters?
§ Mr. Stinchcombe
If the hon. Gentleman is patient, I shall try to deal with those points later in my speech; if I do not, I shall give way to him again.
I do not justify the Bill on grounds of sound common sense alone. The Bill will bring other benefits, which should not be underestimated. Non-incorporation has been an ordinance of self-denial, by which our judges have been locked out of the sphere of influence. That is a terrible pity.
The Bill will rightly end that self-denial. The jurisprudence of the convention will continue to develop. Hard and difficult decisions remain to be made and, when they are made, our judges—especially given their unique insights from the common law tradition—should be in the courts, and not looking on from the public gallery, unable to influence decisions.
I understand that siren voices, mostly from the dinosauric right, none the less object on points of constitutional principle. I respect those arguments, even if 814 I do not agree with them. They tend to rest their objections on the alleged conflict between the Bill and our democratic tradition. They make two discrete assertions. The first is that entrenching certain rights will run counter to the power and ability of this Parliament, which is democratically elected and accountable, to legislate as it will according to its mandate; the second is that the Bill will drag judges into the political arena.
I believe that I have correctly identified the constitutional objections of the hon. Member for New Forest, West, but, in my view, neither assertion stands up. Parliamentary sovereignty is not diminished by the Bill because it does not empower judges to strike down legislation, but only to declare its incompatibility with the convention. Indeed, the Bill would enhance the parliamentary sovereignty of the House in two ways. First, it provides for the fast-track procedure of which the hon. Gentleman complained, so that Parliament can address declared incompatibility readily and swiftly. Secondly, the Bill would introduce a measure by which Ministers responsible for introducing legislation to the House would have to state whether there was incompatibility.
The net effect of those two innovations is that the House would remain free to legislate as it chooses, but when it did so it would be more able and better equipped to deal with the human rights concerns of its legislation. That is a huge stride forward. It is true to our tradition as a parliamentary democracy and yet it means that we can better protect the human rights of our people.
The second assertion is that the judiciary would be dragged inappropriately into the political arena. The Lord Chief Justice does not believe so; nor does the noble and learned Lord Steyne, who said in 1996 when he lectured the Administrative Law Bar Association that incorporation of the convention did not entail any transfer of political power whatsoever. It would simply mean that alleged breaches of human rights would be tried in our courts rather than in Strasbourg.
Therefore, neither of the constitutional objections to the Bill bears any critical analysis. Indeed, those people who object to the Bill on constitutional grounds will find themselves in an uncomfortable position. Either they want the convention to remain, but not the Bill, in which case they want our rights to be determined by foreign judges abroad after a five-year wait and £30,000 spent, or they want neither the Bill nor the convention, in which case, just as a new age of rights emerges from the old age of paradox, they want to turn their back on 50 years of shared political history and say that our citizens no longer have the right to be protected by the convention in that way. Neither position is sustainable. For the reasons that I have given, the case for incorporation is now compelling.
We have heard two further detailed objections concerning privacy and the Churches. The Government are further considering both those areas of concern, which must be right as they are important and sensitive issues. I must take this opportunity to make my modest contribution to the on-going debate and deal first with the fear that the Bill would lead to a privacy law.
I await the forthcoming amendment with great interest, but would like five points to be considered when it is being drafted. First, there is already a law of privacy under the convention. Article 8 provides the right to respect for 815 privacy. On occasion, the United Kingdom has already been found to be in breach of article 8 in Strasbourg. So, even if unamended, the Bill would not introduce a new law of privacy, but would simply mean that an existing law could be applied by our judges in our courtrooms.
Secondly, the Bill does not confer on individuals the right to start proceedings against a newspaper solely on the basis of a breach of article 8 in any event. Such a claim would be available only against a public authority, and the inclusion of courts in the definition of public authority would not confer a cause of action where none before existed.
Thirdly, we should never forget the force of article 10, as other hon. Members have made clear. It guarantees and protects the freedom of the press and would therefore be available under the Bill as a defence when the press was sued for defamation, contempt or breach of confidence. So, the amendment that is sought might harm the very freedom that the press rightly craves.
Fourthly, it is not true to assert that the right of privacy is an untrammelled and absolute right because article 8 lists a series of grounds on which it can be interfered with, which includethe protection of the rights and freedoms of others".Therefore, the convention allows the privacy right to be overridden where it is necessary to protect freedom of expression.
Fifthly, as I have sought to make clear, the essence of the convention is a balancing of rights and responsibilities. So, the right to freedom of expression is balanced by a responsibility to respect the privacy of others, with the ultimate determinant when the two are in conflict being the public interest. If we interfere unduly with that delicate balance, allowing some to claim the protection of the convention but to deny the burden, we are treading in treacherous waters.
As regards the Churches, I must make it clear at the outset that I appreciate both the importance and sensitivities of the issues raised—I do so as a Christian socialist. Yet again, however, I counsel caution before amendments are accepted. I do so for two reasons. First, the great strength of the Bill is the universality of its application, which is wholly appropriate in legislation that would give further protection to fundamental human rights. Secondly, if exceptions are made for some religions and not for others, not only will the principle of universality have been diluted, but we will have written discrimination into the face of a Bill that is designed to prevent it. We must also remember that article 9 already expressly protects religious freedom and article 2 of the first protocol protects the right to education in conformity with religious beliefs. So, protection is already writ large into the Bill.
I support the Bill whole-heartedly. Nearly half a century after we drafted the convention, and more than 30 years after we gave our citizens rights under it, we should now take another step and allow the rights that we have for so long recognised in international law to be recognised here by our administrators, our decision-makers and our judges in our courts, as part of our legal system.
816 Even with the passing of the Bill, however, the battle for the full protection of our human rights will not end. Other steps will have to follow. I refer the hon. Member for New Forest, West to the point I argued at the outset—constitutional change is an on-going process and it does not happen overnight. In the short time available, I will set out just three of the steps that will have to be taken.
First, we must launch a programme of retraining in the existing jurisprudence of the convention for administrators, decision-makers and lawyers. We must do so not merely for judges and students, but for existing practitioners, including solicitors and barristers, and not merely those in specialist fields of public law or judicial review. The rights will not be the exclusive province of a specialist constitutional court, but will be pleaded in tribunals and courts throughout the country in cases both civil and criminal. Our professions must be ready for the signal challenges that they will face.
Secondly, the time will come for a human rights commission. I am pleased that the door to a commission has been left open. One day, we will have to walk through that door and establish a commission: one which would further promote public awareness and acceptance of human rights standards, enhance the scrutinising powers of Parliament as an aid to increased compliance, play a key role in investigating allegations of human rights abuse, and be able to instigate legal proceedings in its own right, so that the rights of all our citizens can be more fully protected—especially given the relatively restrictive view of standing embraced by the Bill.
Thirdly, the best way for the Government to achieve progress in both those fields would be by appointing a human rights commissioner soon, to push the agenda forward.
I close with this thought for the Minister. The Bill will enhance people's awareness of human rights and their expectations. Some of those expectations will be political and not merely legal. We cannot pass legislation that people will read as providing a right to a home without being asked to build the homes to house the homeless. We cannot pass legislation that people will read as providing a right to education, without being asked to invest in education so that our schools can be made centres of excellence for all our children. People will demand that the rights enshrined by the convention are realisable and effective. This and any successor Government will have the responsibility of meeting those demands politically as well as legally.
The new Labour Government are rebuilding an outdated constitution so that power will be more widely dispersed, our democratic tradition maintained, but renewed, and the citizen better protected. The Bill lies at the heart of that endeavour. There is no greater way to end the century of paradox than to pass this Bill, so that we can play our part in creating a global Bill for the protection of human rights.
§ Mr. Douglas Hogg (Sleaford and North Hykeham)
In the interests of brevity and, I hope, clarity, I would like to begin by summarising my views and then develop a few aspects in greater depth. My first point, which is accepted by all hon. Members, is that this is an important Bill. We are changing greatly the historic balance that has 817 existed between the judiciary and Parliament. I find that undesirable. Secondly, we are submitting this House and our courts to much greater external control and supervision than we have historically thought right. I find that even more undesirable, but that is not the end of the matter.
The essential problem flows not from the Bill but from the convention. The House must consider whether we should remain a party to the convention or derogate from it. That question has not been addressed very directly, but I think that it should be. My conclusion is that while there is a powerful argument in favour of derogation, I would stick with the convention. That is partly because I think that that is politically desirable and partly because I think that it is right in principle.
My next conclusion is, therefore, that we contemplate the future on the basis that this country will remain a party to the convention for as long ahead as we can see. Given that, the next question is whether we should stick with things as they are or incorporate. Not without difficulty, I have concluded that we should incorporate, because I think that the advantages of incorporating the convention into domestic law outweigh the very real disadvantages. I am in principle in favour of incorporation.
Where I disagree profoundly with the Government and the Liberal Democrats is in respect of the remedial order procedure. That is a serious defect of the Bill. The Government are contemplating that important primary legislation should be changed by secondary legislation. I regard that as wrong in principle. To summarise my conclusions, notwithstanding the very powerful objections that can be made against incorporation, I favour the principle of incorporation, but do not agree with the remedial order procedure provided for in the Bill. As long as that remains in its present form, I will not support the Bill.
I would like to amplify one or two of my points, starting with a word or two on the concept of a Bill of Rights. For as long as I have been interested in politics, which is now some 35 or 40 years, people have invoked the concept of a Bill of Rights as a way of entrenching the rights of the citizen against an over-mighty Government. My father made important speeches on the point in the late 1970s with regard to the elected dictatorship. He was right. The power invested in the Executive, as long they retain a majority in this House, can be oppressive. Indeed, we may find that it will be exercised in that way by the Government with the size of their majority.
The question is how to address the problem. Many people have argued for a Bill of Rights as a bulwark against such erosion of rights. I do not accept that, for the following reason. The Bill would either be so particular that it dealt with every eventuality, which is simply not practical and will not happen, or general and leave the judges to apply the general propositions to particular circumstances and cases. That is what this Bill, and the convention, are about. I find that unacceptable in principle because it creates a body of judge-made statute law. I am very much against that. I believe that the principal rights of individuals should be dealt with by this House. One has only to examine the convention to see the force of that argument.
818 My hon. Friend the Member for Woking (Mr. Malins) made some important points about deportation. He was right about that, but there will also be reference to what is meant by "family" or "marriage" in the convention. Judges will have something to say about that, which is likely to distress my hon. Friend the Member for Gainsborough (Mr. Leigh). Such matters should be dealt with by the House. It as a result of my conclusion on those matters that I have long since come to believe that an elected second Chamber, not a Bill of Rights, is the proper way to safeguard the rights of citizens.
I have two points on the extent to which change will be brought about by the Bill. First, we are submitting the authority of this House, and of the United Kingdom courts, to a range of external authorities, institutions and bodies. For example, all legislation—present, past, future—will have to be considered against the context of the convention; and not only this convention but future protocols; and not only this convention and future protocols but the interpretation that the other judges in the Strasbourg Court and elsewhere place upon it. That is a substantial erosion of parliamentary sovereignty.
The second fundamental change is that we are placing upon United Kingdom judges the obligation and duty to interpret the general expression of views in the convention in a way that historically we have thought inappropriate. We are asking them to translate into particular rights the general rights set out in the convention. I believe that that is in principle undesirable.
Mr. Gareth Thomas
I follow the right hon. and learned Gentleman's lucid contributions with interest. What does he consider to be the difference between having judges in Brussels interpret the general propositions enshrined in the convention and having it done by British judges versed in the parliamentary tradition and the essential differences between the continental and United Kingdom systems? Surely he should argue for the devolution of decision—judge-based law—to Britain, which is what the Bill proposes.
§ Mr. Hogg
I am going to. That is why I began by summarising my conclusions. I have concluded that incorporation is the least bad of the options available, but it is right that we should see how significant the changes are. The point that I was making when the hon. Gentleman very fairly intervened was that the extent of the change brought about by the Bill and the convention is great, but at the beginning I pointed out that the essential point is not the Bill but the convention. One has to ask whether we should remain a party to the convention. Powerful arguments can be lodged against that. It is worth reading the debates in the other place. For example, Lord Beloff reminded the other House that this was an international convention when it was introduced and was not intended to create, at least for democratic states, to use his words, a charter of rights.
We must consider, given the disadvantages and the erosion of parliamentary sovereignty to which I referred, whether we should denounce the convention. My view is that that would be wrong. It would not only be wrong but politically impossible. It is not politically possible because the political price, both international and national, is too high. It would be wrong because we are seeking to encourage many former communist states to improve the quality of their civil rights, and I do not think that for us 819 to denounce the convention would be a good example to them. Therefore, my conclusion is that notwithstanding the fact that there are many problems associated with the convention so far as it erodes sovereignty, we must stick with it.
§ Mr. Browne
The House will no doubt be instructed by the right hon. and learned Gentleman's reference to Lord Beloff in another place. To put those remarks in context, the right hon. and learned Gentleman should note that Lord Renton, who was a member of Legal Affairs Committee of the Council of Europe in 1951 and 1952, intervened to assure Lord Beloff that, at the time, the committee did not merely consider the convention to be a matter between Governments but one on which the committee wanted to protect the interests of all the people of all the countries represented at the Council of Europe.
§ Mr. Hogg
That is perfectly true, but perhaps the hon. Gentleman would care to bear in mind three other points. First, Lord Beloff said that that was not how the convention was presented to the country. Secondly, Mr. Ungoed Thomas, who was then representing the interests of the Labour party at the convention, argued against incorporation on the basis that it was not intended to create a charter of rights. He might also care to look at his own Government's White Paper, in particular paragraph 1.11, where he will find that the convention was referred to as an international convention in the first instance.
Given that we will have a convention for the foreseeable future, is it right that we should leave the proceedings as they are, in Strasbourg, or move to incorporation? My view is that incorporation is right. I have come to the conclusion that if one has a convention, it is important that there should be ready access to the rights reflected in it. It is undesirable in terms of cost and complexity that British citizens who wish to invoke those rights should have to go to Strasbourg in first instance. Therefore, my conclusion is that, given a convention, better by far that we have incorporation.
I also accept the argument that if we have incorporation, it is likely that the presence of United Kingdom judges in the first instance will have a beneficial effect on our collective national interest because the process will help to inform the Strasbourg Court of some of our judicial principles and constitutional practices which it would wish to take fully into account.
§ Mr. Leigh
My right hon. and learned Friend is making an interesting point, but he is aware that the Strasbourg judges act according to what they call the margin of appreciation. They tend not to interfere in social and moral matters which they deem to be the proper territory of national judges. No such consideration will apply to our judges.
§ Mr. Hogg
My hon. Friend has raised a serious point. He is right to say that the concept of the margin of appreciation is similar to the concept of subsidiarity in relation to the European Union.
One of the things that has been most troubling about the Strasbourg Court over many years has been its willingness to develop the general terms reflected in the 820 convention to meet a range of circumstances that the founding fathers never contemplated. One of the most important changes that we could try to bring about within the Strasbourg Court is to reassert the principle of the margin of appreciation—that is the doctrine of subsidiarity—so that it does not seek to over-extend the language of the convention. My hope is that by using the United Kingdom courts as the courts of first instance regarding the convention we will see a greater caution on the part of the Strasbourg Court to intervene in matters that are peculiarly the province of Parliament.
§ Mr. Grieve
Does my right hon. and learned Friend also agree that one of the problems with the present system of direct reference is that the Strasbourg Court is in a poor position to determine factual matters and many of the basic grounds on which a ruling needs to be made? One of the advantages of incorporation would be precisely to provide the necessary judicial input which would certainly facilitate any subsequent decisions by that Court.
§ Mr. Hogg
My hon. Friend is right. The process of gathering evidence is more difficult for the Strasbourg Court, and the processes are more convoluted, than would be the case in United Kingdom courts. Furthermore, the UK judiciary can take judicial notice of a range of matters which will be unknown to the Strasbourg judiciary. I conclude that incorporation is, in principle, the least undesirable of the options before the House.
That judgment is not conclusive as to whether we should support the Bill, because I am extremely unhappy with the provisions known as the remedial order process, as outlined in clauses 10, 11 and 12. Those provisions are wrong. I am extremely sorry that the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), the Liberal Democrat spokesman, saw fit to support them.
The plain truth is that if one wants to amend primary legislation, one should use primary legislation to do so. The Home Secretary perfectly fairly quoted some examples against that, but I am bound to say that I have always opposed secondary legislation as a means of creating substantive rights or imposing substantive burdens, for two reasons. First, it is not amendable and, secondly, debate, if there be debate, is extremely limited. Of course I recognise that we are talking about the affirmative resolution, which provides for debate, but that is not true of the negative resolution procedure. But in any event, debate is extremely limited and the document is not amendable.
There may a small number of cases when the urgency is such that secondary legislation is the appropriate means to amend primary legislation. The Home Secretary may or may not be able to cite some examples of that, but in the generality of cases that should not be. Such a practice is profoundly undemocratic, and unless and until the Bill is changed to reflect that, I cannot support it.
§ Mr. Maclennan
Does the right hon. and learned Gentleman accept that as a normal canon of statutory interpretation, when Parliament enacts a measure which is at variance with a pre-legislated Act, the presumption of the court will be that it is intended to repeal it? In that circumstance, Parliament would not normally be invited 821 even to consider whether or not change was necessary by subordinate or any other form of legislation. The judge would make that determination.
§ Mr. Hogg
I do not agree with that broad statement of statutory interpretation. The plain truth is that the first principle that the courts will always try to uphold is to give a proper interpretation to the statute before it. Where statutes are irreconcilable, one or other must be preferred. Fortunately, that happens relatively seldom. The problem with the convention is that, as I have said before, it is a constantly changing body of law. Although one has the general language of the convention, what it actually means in relation to individuals or institutions is what judges have said that it means over a period of time. By making an interpretation of a judicial kind, one is fundamentally altering the state and the nature of the convention.
If one wants to change the rights and obligations, the burdens and entitlements that the House, by primary legislation, has previously imposed or conferred upon the citizenry, it should be done by primary legislation and not by an order, which is debated for an hour and a half in some place—probably in this Chamber—and is unamendable. That is not a small thing, but a great one. Until the Bill is suitably amended, it will not enjoy my support.
§ Fiona Mactaggart (Slough)
I warmly welcome the Bill because it will establish a national standard for ethical government, and for ethical relations between people and public institutions. That is especially important at a time when we are devolving power. To listen to Opposition Members, one would think that the most important feature of the British constitution is to retain every possible spot of power in this place, but that is not what the Government are committed to. They have been rearranging the constitution to devolve power closer to people; that is right and it was in the manifesto on which we were elected. It is absolutely necessary that we have a clear, unifying national ethical framework for that devolution of power and that is what the Bill provides.
§ Mr. Swayne
Is the hon. Lady content to have power devolved effectively to judges, who are not subject to the will of the people in the way that Members of Parliament are? The people can get rid of the rascals here if they do not like them.
§ Fiona Mactaggart
I do not believe that that is what is happening. We are devolving power to the people. If the judges' power conflicts with any decision of this House, there is a mechanism whereby the House is invited to look again at the legislation to ensure that all our laws contribute to and protect human rights.
It is essential that every institution and the whole of society fall within the framework of the human rights legislation that we establish. That is one of the reasons why I was deeply concerned by some of the anxieties voiced in the other place by the Church, the press and the Army, and their suggestion that the problems they genuinely perceived within the legislation should be dealt with by exempting their institutions from the framework of rights established by the Bill. I commend 822 my right hon. Friend the Home Secretary for the way in which he has responded to those concerns. I agree that there is no need for Britain's press to be frightened that the Bill will introduce a privacy law by the back door. If we look at the interpretation of human rights legislation, not only in Europe, but elsewhere, we see that it has been one of the greatest protectors of the freedom of the press. Article 10 of the European convention on human rights has, in practice, been interpreted in such a way as to ensure that the freedom of the press is secured.
§ Mr. Bercow
In the light of those comments, would the hon. Lady concede that the Lord Chancellor was unwise to predict the development by the courts of a law of privacy in this country in his speech on 27 July 1997?
§ Fiona Mactaggart
I should never dream of calling my right hon. and learned Friend the Lord Chancellor unwise—it is not worth my while to do so. However, I do not believe that the development of a law of privacy is in any way affected by the Bill. In the development of common law, there have been some moves in that direction which are unrelated to what happens at Strasbourg. In my judgment, the Bill and the requirement to take into account article 10 matters make it quite clear that we respect the freedom of the press. The changes announced today by my right hon. Friend the Home Secretary, the detail of which I have not been able to examine more carefully than any other hon. Member, seem to make it clear that he expects the press to remain within the context of a human rights ethos and framework.
I hope that when holding discussions with those who are concerned about the impact on religious bodies, my right hon. Friend will take exactly the same approach. Their fears are genuine, just as are the fears of those who are concerned about a privacy law, but they are unfounded. If my right hon. Friend responds to those fears, I urge him to respond in the same way. It is only when human rights are universal and apply to everybody that they are effective. It is no good having particular interests in society claiming an exemption from human rights. I am especially concerned that the interests of which we have heard most are not those of people whose rights are currently least respected, but those to whom the institutions of Parliament and Government have traditionally listened carefully.
Yesterday, I went through a powerful experience at a meeting in Slough. The Muslim community met to commemorate the 50th anniversary of the founding of Pakistan. People here may be aware that there have been painful tensions between the Sikh and Muslim communities in Slough, with incidents of violence on the streets and between the communities. At that meeting, a Sikh got up and recited a poem in Punjabi and, if my Punjabi was better, I might have been able to share it in the original language with hon. Members, but I am unable to do so. However, even though I do not understand Punjabi, I understood the poem's refrain and I shall share that with the House. It was, "It happens to me and it happens to you." The story of the poem was, "You come from the Indian sub-continent with a degree and people treat it like a piece of toilet paper—it happens to me, it happens to you. You get into debt with the bank and have to sort out your life—it happens to me, it happens to you."
823 That man recognised the power of the universality of human rights. In that simple poem, he said to his audience, with whom he had deep disagreements on fundamental issues, that there are more things that unite us and more experiences we have in common than there are those that separate us. That is the power of the Bill.
§ Mr. Leigh
I hope that the hon. Lady will forgive me for saying this, but her thinking is somewhat muddled. We have a universal right to practise a religious faith of our choosing; equally, religious faiths have a right to conduct their own affairs in the way that they wish. Those rights have to exist side by side. The difficulty is that the Bill and the convention it incorporates attack the rights of religious bodies to conduct their affairs in the way they choose, which is why they are wrong.
§ Fiona Mactaggart
No, the hon. Gentleman has quite misunderstood the Bill and the convention which, in every right—apart from the right to freedom from torture and inhuman and degrading treatment—makes specific reference to the need to balance that right with other rights. There are specific guarantees for the rights to freedom of religious thought and to freedom of religious observance. International human rights instruments such as the convention—which was written at a time when, because of the impact of the war, the public felt strongly that the right to religious practice and observance should be protected—have played a significant role in protecting religious freedoms and rights of free speech.
Our real problem is that few people understand the concept that my constituent understood: the radical power of connecting people's experiences of the denial of rights. That is what the Bill is able to do. Too many of us have received letters from constituents who, for example, cannot get a housing transfer or do not like the way in which their bank has treated them and say, "I want you to take my case to Europe." Perhaps I get such demands more frequently than other hon. Members, because my constituents know that I once participated in a successful case against the United Kingdom Government at Strasbourg. One of the reasons why people make such demands is that there is insufficient understanding of the concept of human rights in the United Kingdom.
We have no human rights education. Most Commonwealth countries place a responsibility on the Government to educate their people in human rights. In creating a new democratic constitution, South Africa had a fabulous education programme on human rights which resulted in more than 1 million people contributing to consultation on their own Bill of Rights. Today, there is education in every school in South Africa, dealing with precisely those instances in which rights conflict.
§ Mr. Ruffley
Is the hon. Lady very disappointed with Ministers about the Bill's failure to include provision for a human rights commission?
§ Fiona Mactaggart
I shall deal with exactly that matter in a moment.
Other countries have taken that responsibility to educate people on human rights, contributing not only to better law making and to a better understanding of the 824 law, but to people being able to exercise their rights more effectively. Those people know the difference between a human right and a gripe—which is a very important difference for people to understand. In Indian law, there is a wonderful phrase about "combating illiteracy" in human rights. That is a powerful concept.
It is important that we do that job of educating people on human rights. I therefore hope that we might soon create a commission to take on part of that job, although I quite understand why it is difficult to establish one right now. We shall have to create a system in which bodies currently charged with human rights responsibilities, such as the Equal Opportunities Commission and the Commission for Racial Equality, can do their job and in which there is parity between those bodies, but in which there is an overarching human rights framework. I urge my hon. Friend the Minister to examine the possibility of creating a commission as soon as the Bill is well bedded in.
Until we establish a commission, I urge the Government to take urgent action on another matter that was in the White Paper: creating in the House a Committee on human rights. I have read the debate on the Bill in the other place. Those in the other place have distinguished themselves in dealing with the human rights issue and could make a substantial contribution to such a Committee. I therefore believe that there is a strong argument for such a Committee to be a joint one of both Houses. Many of those in the other place have participated in human rights cases, both in Strasbourg and internationally.
Even if we cannot immediately create a commission, we should create without delay a Joint Committee. I suggest four jobs for the Committee to do urgently. First—in performing the tasks that have been set for Ministers under clause 19 of the Bill—it should produce a statement on new legislation and its compatibility with the convention. Statements should be a powerful assessment—an audit—of the human rights impact of proposed legislation. We do not want statements to be merely a quick gesture stating that the Minister is confident that there will be no conflict; let us have an assessment of how legislation will advance and develop.
Secondly, the Committee should examine the issues—which I have already mentioned—of public education and of creating a real culture of rights.
§ Mr. Hogg
The hon. Lady's point about the Committee examining compatibility with the convention is sound. Might I suggest that that function could be performed also by a Special Standing Committee? As she will know, there is provision for Special Standing Committees to take evidence. It would be extremely helpful if the Standing Committee considering a Bill were empowered to take evidence from those who felt that the Bill's provisions contravened the convention.
§ Fiona Mactaggart
That is a very interesting proposal. The Joint Committee might propose that that should happen in cases in which there were questions about compatibility between the convention and a Bill. How to produce such an impact statement and how to audit the human rights implications of new legislation would be sensible matters for a Joint Committee to examine.
Thirdly, the Joint Committee should examine the matter of access to rights and legal representation. Earlier in the debate, I mentioned the case of Abdulaziz, Balkandali and 825 Cabales, which I played a part in. The case involved three women who were separated from their foreign husbands by United Kingdom immigration rules, but was successfully settled in Strasbourg. We were able to represent them only because of the generosity of solicitors who took the case on a no-win, no-fee basis. I remember best the delay and difficulty in taking the case to Strasbourg, which certainly damaged the women's family life and caused them great distress.
The women in that case were lucky. They were in contact early with a campaign and representation organisation that could take up their case. We were lucky because a Committee in the other place had already decided that the new immigration rules contravened the convention—therefore, much of the homework had already been done. The case also demonstrates the House's ability to ignore advice stating that the rules or regulations that it passes sometimes abuse human rights. That is what happened in that case. Therefore, although we have to ensure that people have access to well-trained and effective representation, such access will not be available instantly. A Joint Committee could examine the issue.
Fourthly, the Committee should examine whether there is a case for the United Kingdom to sign up to additional protocols and to other international human rights legislation. We have not signed very many of the current protocols, including some of those under the international covenant on civil and political rights, but there is a strong case for us to do so.
§ Mr. McNamara
Will my hon. Friend join me in urging the Government to provide parliamentary time for the House to complete the work of abolishing capital punishment by eliminating the last vestiges of that heinous punishment?
§ Fiona Mactaggart
My hon. Friend made precisely the point to which I was alluding. It is precisely because of that issue that I have always found it very difficult to stand side-by-side with America—which still regularly executes its own citizens—as great defenders of human rights.
Those are the tasks that I think that the Joint Committee should examine. To bring rights home, we need not only a legislative framework, but action. I hope that we shall be able swiftly to rid ourselves of the barriers to creating a human rights commission, which would be able to perform those tasks even more effectively than a Joint Committee.
The Bill is a genuinely modernising Bill. People are sometimes slick and sneering about modernising government, but the Bill is what modernising government is all about. It is about creating a framework of rights, helping people realise their rights and providing them with a mechanism for exercising those rights without requiring them to have undue expertise or excessive cash.
Passing the Bill is one of the biggest ways in which we can transform the United Kingdom. It is innovatory, and it will fundamentally change the relationship between Government and the people—not in a manner that reduces our democracy, but in one that extends it. For that reason, I commend the Bill to the House.
§ Mr. David Ruffley (Bury St. Edmunds)
The Government have introduced the Bill under the banner—the soundbite—"bringing rights home". The problem is that that conceals the Bill's real thrust: to effect a massive constitutional shift from the House to unelected judges. That is a constitutional change of epic proportions.
In considering our response to the Bill, hon. Members should realise that United Kingdom judges will be making law in a way that they have never done before. Even worse, the Bill will drag judges into politics as they have never been involved before. In a very real way, they will be politicised.
We know that Ministers accept that point. From paragraph 2.5 of the White Paper "Rights Brought Home", and from some of the Lord Chancellor's remarks, it is obvious that the Government accept that judges will become more important in public policy making. The Government do not make much of a secret of it, but, judging from the remarks of my right hon. and hon. Friends, it is obvious that Conservative Members are worried that unelected judges are being given those powers at the expense of elected representatives in the House.
When we talk about a new power of judge-made legislation, we hear the charge that judges have always made law. Something like the law of negligence was developed on a case-law basis in the 19th century, so judge-made law did bring into effect a law of negligence. However, we are talking about judge-made law in relation to things much more important than the law of negligence.
As my hon. Friend the Member for Woking (Mr. Malins) and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said, judge-made law will be possible because of the wide ambit of the European convention articles. They are so widely drafted that there is a great deal of space to allow domestic judges in this country to make up new law.
§ Mr. Swayne
Does my hon. Friend acknowledge that not only a great deal of leeway, but a great deal of cost is involved? As the hon. Member for Wellingborough (Mr. Stinchcombe) said, judgments on this basis will come with a price tag—a right to education, a right to health care, and so on.
§ Mr. Ruffley
My hon. Friend is exactly right in that respect. My hon. Friend the Member for Woking ably gave the reasons for the wide drafting and the wide ambit—the vague, woolly, imprecise language—of the convention articles. In the 1940s and 1950s, it was never intended that these widely drawn articles would be directly incorporated into English law, and they were not so incorporated then. Those articles were an important beacon—a symbol—for European democracies that were freshly emerging after the second world war, but they were never intended to be of practical effect in this country.
It follows from what I have said that English judges will be able to challenge primary legislation already extant in this country. We know that this is not only possible, but likely because of clause 4, which provides for a "declaration of incompatibility." Certain problems arise from that declaration of incompatibility, which I should very much like the Minister to answer when replying to the debate.
827 If an English judge, interpreting the convention, finds that a primary piece of legislation in this country is in conflict with a convention article, under what obligation or duty is a member of the Executive—a Minister in the relevant Department—to lay an Order in Council? We have yet to receive a clear answer to that. It seems to me that the judge's finding will be of persuasive effect, but what happens if the Minister chooses not to lay an Order in Council? If the Order in Council is not laid, are we to assume that a litigant will go to the Strasbourg Court to compel the Minister to lay such an order?
§ Mr. Browne
One of the fundamental criticisms that the hon. Gentleman makes concerns the widely drafted nature of the articles of the convention. Is it part of his thesis that our citizens should be denied access to those rights because they are widely drafted, or would he continue to allow our citizens to have access to those rights through the Court in Strasbourg?
§ Mr. Ruffley
The hon. Gentleman misses the point. We are talking about the new—and, in our view, unjustified—powers that are given to English judges at the expense of Members of the House. That is the argument that I seek to make, and which Conservative Members have made.
§ Mr. Ruffley
I will not give way.
The idea that the domestic courts in this country can challenge primary legislation is troublesome because of the way in which Ministers may have to respond by laying Orders in Council. As my right hon. and learned Friend the Member for Sleaford and North Hykeham said, there is grave disquiet on the Conservative Benches about the way in which orders can be laid which will amend the offending piece of primary legislation. The order will not be the subject of debate. I am sure—
§ Mr. Ruffley
What is the effect of a judge deciding that a piece of primary legislation in this country is in conflict with the convention and that, therefore, an Order in Council should be laid? What happens if hon. Members in this place consider that the judge is wrong? We have 90 minutes or so in which to debate an affirmative resolution. We cannot test the proposition; we cannot have a full and frank debate. It is a fast-track procedure.
When we consider that fast-track procedure, we all see the baleful influence of the Lord Chancellor; it bears his imprint. It is unfortunate that we have a Lord Chancellor who is so arrogant and high-handed in his treatment of the House. Only he could come up with a fast-track procedure. In New Zealand, any clash between a human rights convention article and primary legislation must be amended by full primary legislation—not by some Order in Council, banged through on the nod. That is a fundamental constitutional issue, which no Labour Member has even tried to address.
828 I argue that the Home Secretary—and the Lord Chancellor in another place—is disingenuous in arguing that the sovereignty of Parliament is protected. Obviously, if judges wish to interpret the convention articles in a way that is in conflict with primary legislation extant in this country, they can de facto strike it down. We await answers to that specific question from Ministers at the end of the debate.
The politicisation of the judiciary is inevitable; I shall explain why. If the European convention on human rights is incorporated in domestic law, all sorts of public policy issues could fall to be determined by domestic judges.
§ Mr. Vernon Coaker (Gedling)
Does the hon. Gentleman consider it satisfactory that, at present, if a British citizen wishes to pursue what he or she believes to be an infringement of their human rights, it currently takes five years, and approximately £30,000, for him or her to do so? If the hon. Gentleman feels that what we are suggesting is so unsatisfactory, does he regard the present set-up as a satisfactory way for ordinary British citizens to protect their human rights?
§ Mr. Ruffley
What I find unsatisfactory is the idea of judges being given powers to make law on important public policy issues; I was about to list those issues. If the European convention is incorporated into domestic law by the Bill, for the first time, judges will make law on the right to an abortion, on the right to life, on the closed shop and on the right to privacy. Those are important issues, on which, in our judgment, the law should not fall to be invented by judges. The discussion of important laws, relating to the matters that I have listed, is a matter for this place, not for domestic judges.
I think it was Lord McCluskey who, in his very distinguished Reith lectures in the 1980s, said that the problem with Bills of Rights and the incorporation of the European convention on human rights is that one makes the mistake of dressing up policy issues as though they were legal issues. That is the crux of our argument.
It seems to me that something more flows from the politicisation of our judiciary—the way in which judges will be obliged to make up laws on abortion, on privacy and, conceivably, on euthanasia—namely, the prospect of a Ministry of justice tampering with the composition of the Bench. It seems to us that, in the course of his egomaniacal odyssey through Whitehall, the Lord Chancellor will seek to create a Ministry of justice; and that either he or his successors will try to tamper with the composition of the Bench—introducing quotas for race, gender and so on. That is a real threat. We have already witnessed the politicisation of the USA Supreme Court under Reagan, Bush and Clinton. I foresee the same happening under a "new Labour" Administration if the Bill is passed.
I believe that this is a bad Bill because it introduces the rule of lawyers to areas that should properly be the preserve of this House. When they finally wake up to what has happened, the British people will be appalled by 829 what the Government are doing. That is why I support the reasoned amendment tabled by my right hon. and hon. Friends.
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
Order. Quite a number of hon. Members are trying to catch my eye. It would help them all if those who are called keep their eye on the time.
§ Mr. Desmond Browne (Kilmarnock and Loudoun)
As we have been reminded by my hon. Friend the Member for Wellingborough (Mr. Stinchcombe), it is fitting that a Labour Government should introduce the Bill, since it was a Labour Government who in 1966, 13 years after ratification of the convention, first accepted the right of individual petition and the compulsory jurisdiction of the Court. Now the Government are delivering their manifesto commitment, and, in so doing, they are taking another step towards modernising our constitution. Speaking on that very theme in March 1993, the then leader of the Labour party, John Smith, said:The quickest and simplest way of achieving the democratic and legal establishment of a substantial package of Human Rights would be by incorporating into British law the European Convention on Human Rights.That is what we are doing. The case for incorporation since 1953, when we ratified the convention, has been forcefully argued by a significant number of distinguished political and legal figures, including senior members of the judiciary. Although the argument has been supported by individual Conservatives, they have never supported it collectively. Indeed, as the Secretary of State has reminded us, the arguments were supported by many current Conservative Front Benchers but never by the Conservative party itself.
The Conservative contributions today have revealed a schizophrenic approach which demands clarification. If Conservative Members support the convention and the principles behind the Bill, it is surely not unreasonable to ask them whether they still oppose incorporation or whether they support it. It is all very well rehearsing arguments, but the Opposition must adopt a constitutional position on a matter as important as this—do they support or reject incorporation of the convention? Certain individual Conservatives have explained their position, but it remains difficult to determine the Opposition's position in principle, both here and in the other place. And it will not do to point out that the Conservatives are the Opposition, not the Government.
The Conservatives' reasoned amendment expresses their strong belief in human rights. How are those listening to the debate to interpret that sentiment in the light of the fact—this is where the hypocrisy comes in—that, without incorporation, our people have to go to Strasbourg to vindicate their rights, as the convention is not yet part of domestic law? The Opposition have a constitutional responsibility, therefore, to explain their position unequivocally on a matter of such importance.
There have been many examples of the Opposition's contradictory approach, most particularly in the opening speech by the right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney). He said that the 830 convention should be applied in a way that was sensitive to the British way of life. There is surely no better way of ensuring that than making the rights in the convention justiciable in our courts. Although the right hon. Gentleman was called upon to explain that apparent contradiction, and promised to do so, he never did. He was reminded that he appeared content to allow European judges to interpret the human rights convention, and thereafter to accept that we should legislate in response to those judges' decisions, but that he did not wish to allow our judges the same freedom. Somehow he never got round to answering that point. Let us hope that he gets round to it soon.
We need to consider the place of the European convention in UK law. As the Lord Chief Justice, Lord Bingham, said in his maiden speech in the other place, the starting point is that ours is a state that ratified the convention, so we are bound in international law to honour the obligations that we have undertaken—loosely worded or not, I might add; and when any breach of the convention has been established by any public authority, we are bound to amend our laws and procedures to make good the breach and prevent any recurrence.
We are not dealing with rights that have been foisted on us. Our courts have repeatedly stated that these rights are expressions of obvious humanitarian principles. It is significant that British lawyers drafted the convention; and that, in drafting the constitutions of many Commonwealth countries, we have incorporated the convention in them. By guaranteeing everyone the right to claim convention rights against public authorities in our courts, we are merely bringing home those rights, as the Secretary of State reminded us. It is nonsensical and unjust that our citizens cannot enforce their rights without first exhausting all domestic remedies and thereafter taking the long and costly road to Strasbourg.
Our citizens, moreover, are entitled to have confidence in our public authorities and courts. It undermines that confidence to learn that, having exhausted domestic remedies, elsewhere—in Europe—there is an opportunity for justice that is denied to the domestic litigant. Incorporation of the convention will create a climate of confidence in the idea that basic human rights and fundamental freedoms can be enforced as well in the UK as anywhere else in the world.
The Bill should be seen as the beginning of a process of creating a culture of respect for individual rights. That culture must become mainstream in the lives of our citizens, not the marginal add-on it is now.
I wish at this point to invite the House to consider a Scottish element. The point at which the Scotland Bill and the Human Rights Bill intersect has implications for Scotland and the UK. In the words of the Scottish Human Rights Centre:Together they represent an historical milestone in enabling Scotland to begin to develop a modern human rights agenda.Taken together, the Bills enable a High Court and Court of Session to strike down any Act of the Scottish Parliament or action of a Scottish Minister which is incompatible with the European convention on human rights. Nevertheless the UK Parliament's claim of absolute sovereignty is recognised; and the superior courts in Scotland, as in England and Wales, will be able to make an open declaration of incompatibility only in relation to primary legislation of this Parliament— 831 although they will continue, as they do now on both sides of the border, to be able to declare secondary legislation ultra vires.
That difference quite properly reflects devolution. Both jurisdictions have different constitutional traditions and differing forms of incorporation are consistent with each.
I move on to the point made by my hon. Friend the Member for Slough (Fiona Mactaggart). While the Bill will help to promote the awareness of human rights in our society, it does not provide for the establishment of a human rights commission. In answer to a point made during my hon. Friend's speech, it is a disappointment to me that the Bill does not do so. I accept that the Government do not see that as a central task of the Bill, and I am reassured by the comments of the Home Secretary, and of the Lord Chancellor in another place, that the establishment of such a commission is not ruled out in future. I take this opportunity to make a plea for a human rights commission, the primary aim of which would be to promote the ideas contained in the convention and to ensure that those ideas promote the development of a human rights culture.
§ Mr. Dominic Grieve (Beaconsfield)
I am delighted to have the opportunity to participate in the debate. As is probably well known to my colleagues and possibly to other hon. Members, I have long been a supporter of the incorporation of a human rights Bill into our law.
I am mindful of the fact that the objections expressed by many of my colleagues have real force. There is no point in pretending that the incorporation will not effect a major change in the way in which we approach our legal system and the separation of powers. It will.
Historically, we have been blessed in this country by the notion of freedom. Parliament has been excellent at sustaining freedom under the law. That may have been partly an accident of history, but it has been one of our great success stories. It has been born of Parliament respecting the freedom of the individual and allowing the judiciary a strict and limited role in the interpretation of rights as between citizens, and rights as between citizens and the state.
We cannot escape the fact that society is becoming far more complex. Above all, the power of Government and the demands that it places on individual citizens has grown immeasurably over the past 50 years.
§ Mr. Swayne
Will my hon. Friend turn his attention to the potential problem with the convention, which is that the rights envisaged, rather than being limitations on the power of the state, are claims on the power of the state, which require powers on the part of the Executive to deliver, as the hon. Member for Wellingborough (Mr. Stinchcombe) so carefully pointed out?
§ Mr. Grieve
I am mindful of that, and will deal with the matter in a moment. As the impositions have increased, so has the need to provide protection by asserting rights rather than freedoms. That is why we signed up to the convention when it emerged through the Council of Europe, and why we have respected it, 832 although we may often be irritated by some of the ways in which it is applied. It has never been suggested in the House that we should resile from it by withdrawal.
I am alive to the fact that, if incorporation takes place, there will be changes, but I believe that the balance is in favour of incorporation because it will allow judicial input in the UK into the way in which the convention evolves.
There is an argument, which has often exercised me, that we should move away from the convention entirely and have our own Bill of Rights. I have felt that powerfully from time to time, but I see this Bill as a beginning. It is a beginning because I do not see that it will produce anything that is written in stone. If it does not work—I can foresee that there may be problems associated with it—we shall have to address them and, if necessary, change the legislation.
When all that has been said, I cannot disagree with the principle of incorporation, and above all the principle of allowing for the interpretation of the convention to be patriated—repatriated is not the right word. I have sufficient faith in the impartiality of our national judiciary to believe, first, that it has not the slightest intention of getting dragged into the political morass, and, secondly, that it will be capable of interpreting the convention, and interpreting it in a way that respects national conventions and traditions, in a manner that will enhance its workability.
Having made a few points in favour of incorporation, I must express some serious reservations about the way in which the Bill has been drafted. One of those I find fundamental—so much so that I could not support the Bill if it continues in its present form. I refer to the remedial clauses, to which I ask the Government to give most careful thought.
Part of the problem in the House—I know that I have not been here very long, having been elected only last May—is that insufficient time and attention are given to the way in which we act as a legislature. Governments of every colour continually fall prey to the temptation to cut corners, to prevent legislative scrutiny by the House. It does us little credit. If the new system is to work, and if it is to deliver to the citizens of this country an enhancement of their rights, Parliament will have to act in tandem with the courts.
There will be occasions when conflicts arise and those conflicts will have to be resolved by Parliament paying attention to the extent to which the wording of the convention may impinge on our need to legislate and to maintain other rights that we consider important. We cannot do that if the system in operation allows only a 90-minute debate on an affirmative resolution. To suggest that that is the proper way of going about it is to hold the House in contempt. The only way in which we can go about it is with a willingness to have proper debate, for the debate to be public, and for people to notice as part of the process of understanding and developing human rights that there are areas of conflict that are not simply brushed under the carpet, so that they can make an informed decision about whether the legislation will work in practice.
I return to the fact that the Bill's practical effect may well be at variance with the way in which people view the theory of it. What looks good on paper, and what appears to affirm rights and obligations that most of us 833 would hold to be innocuous and important and with very little down side may turn out in practice to have complex implications that will have to be reconciled by the House.
As I said in my maiden speech, I welcome the fact that the Government have introduced the Bill. I welcome the opportunity to debate it and to discuss it carefully in Committee. There are other flaws in it. To mention only one, the lack of appeal for the Government to the Court at Strasbourg raises complex issues about how parity will be maintained between our national human rights and those at European level. That is one of the reasons why, in the past, I have felt that a national human rights Bill might be better. I hope that the Government will address that matter too, as the Bill progresses.
Having said all that, I would be denying my own conscience and feelings in the matter if I did not say that I believe that incorporation is a sensible step forward. I reserve my position on the Bill at present because it has a fatal flaw in the remedial clauses that will take us in the wrong direction. If we can get the Bill into a condition that I consider will make it workable and able to offer a real opportunity to increase human rights in this country, it will have my support.
§ 8.9 pm
§ Mr. David Lock (Wyre Forest)
I am glad to be called to speak in this important debate and I congratulate my right hon. and hon. Friends who have brought this excellent Bill before the House. The proposed legislation is at the foundation of the Labour party's project to modernise our democracy.
Democracy is generally about the rights of the majority, but human rights are about the interests of a minority—even a minority of one. The Bill is not about the things that people do of which we approve; it is about the things that people do of which many of us disapprove—when individual freedom conflicts with the moral and political norms of society. Protection of that freedom is very important in a democracy—particularly in a democracy, where, until it was restrained by European legislation, Parliament could do no wrong.
The Bill is also welcome because it gives positive rights to our citizens that are justiciable in British courts for the first time. For example, Mr. Malone discovered that his telephone was being tapped, so he took action. The British courts agreed that the activity was reprehensible, but said, "There's nothing we can do about it because the people who are tapping your phone are not breaking any specific law. Therefore, as you have no positive right not to have your telephone tapped, there is nothing we can do about it." Mr. Malone took his case to Strasbourg and won. We now have legislation governing telephone tapping in this country, but Mr. Malone should have been able to have his case heard in our courts.
It seems to me that those who oppose the Bill can adopt only two logical positions: first, they can support the repeal of the convention or ask that the United Kingdom derogate from it so that the people of this country do not have convention rights; secondly, they can support incorporation and argue about the details of the repeal legislation. I pay tribute to those Opposition Members who have spoken about their concerns regarding the repeal mechanism. I do not agree with them, but I respect their position.
The Bill should be welcome on both sides of the House. Those who approve of all things European should welcome it because it incorporates a European convention 834 into English law. Those who see the channel as the only thing separating us from the unholy hordes of non-cricket-playing foreigners and their dreaded institutions should welcome it also. The idea that British judges shall decide the human rights of British people according to a convention signed by the British Government should appeal to those of the latter persuasion. However, it may be asking too much of the Conservative party to think along those lines—or even with one mind on this subject.
I raised an important question by way of intervention during the speech of the shadow Home Secretary, to which he did not respond. Why will the Opposition not trust the British judges? It goes further than the question of incorporation. Why do the Opposition not trust the British judges to interpret convention rights and the balance between rights and responsibilities when those judges are part of our society, try cases involving our society and are likely to be far better acquainted with the balance in our parliamentary democracy than judges in Strasbourg who come from a wide range of European states? I fear that there is no answer to that question. That is why I believe that there are only two logical positions to adopt: either one opposes the convention completely or one approves of its incorporation in this country.
In the limited time available to me, I want to address the question of what the convention is likely to do to assist people in this country in exercising their rights. I share the view that our institutions—such as local government, national Government, the police and some of our privatised utilities that discharge public functions—do not act habitually or intentionally in breach of conventions. There is no conspiracy to do down certain sections of the population. However, that does not mean that the system does not break down; it does not mean that people do not slip through the cracks or are not failed by policies that were introduced for one purpose but which have another devastating effect. If our institutions act in breach of people's convention rights, people will now be able to seek a remedy in our courts. I anticipate that there will be relatively few court cases asserting convention rights, but I hope that the existence of those rights will change behaviour.
The best analogy is perhaps with racist and sexist behaviour. In both cases, it is likely that the law led majority public opinion. Although many people believed that legislation was necessary in that area, the laws were not universally welcomed initially. However, the existence of those laws has changed behaviour across a wide spectrum. Much greater changes will be needed if we are to move towards a rights-based society. Changing the law so that rights may be enforced in our courts is an essential step towards changing behaviour. The positive human rights in the convention will speedily and effectively remedy the dead hand of anonymous bureaucracy that breaches our convention rights.
The White Paper that preceded the Bill suggested that human rights should be woven subtly and powerfully into our law. I hope that the Bill will go beyond that: I hope that those rights will be woven subtly and powerfully into the operations of every element of government and public institutions so that they do not breach the convention and thus do not find themselves before the courts. In that way, they will respect individuals' fundamental human rights.
835 That brings me to my last point. The success of the campaign to outlaw race and sex discrimination is partially due to the work of Government agencies that are charged with enforcing the laws and changing public attitudes. They do that through sponsoring cases, through workplace training and by educating trade union and employee leaders about their rights. That work is as valuable as the cases that have defined the law. If we are to move to a rights-based society, I believe that a human rights commission can build on the work undertaken by the Equal Opportunities Commission and others. I accept that there are difficulties and that we cannot achieve our goals overnight. However, as we move towards a rights-based society, I hope that the demands for a human rights commission, promoted by the parliamentary Committee envisaged in the White Paper, will become plain.
§ Sir Nicholas Lyell
The hon. Gentleman is making a thoughtful speech. He said that those hon. Members who argued that we should not have a fast-track remedial system had a point, although he disagreed with it. Now that he, like some of his hon. Friends, is developing the idea in support of a human rights commission—he is right to envisage a considerable extension of human rights and the development of law in this area; and no doubt there will be incompatibility from time to time—will he explain to the House in a few sentences why it is right that Parliament should have only one and a half hours in this and another place in which to deal with such a matter should it arise?
§ Mr. Lock
An automatic repeal would be the primary mechanism assumed by the courts to repeal one Act by a subsequent Act. If the courts determined that there was incompatibility, the later Act would apply and the former would be deemed to be repealed. In this case, the later Act would be the Human Rights Act if the Bill comes into force. Therefore, in the usual way, there would be no need for a repeal mechanism.
The right hon. and learned Gentleman should accept that any likely breach—which I hope will be rare—of the convention will be narrow and precise rather than an attempt to overrule primary legislation in its entirety. Accordingly, a one and a half hour debate on a narrow point may well be appropriate.
Mr. Gareth Thomas
Does my hon. Friend accept that if there is incompatibility between an Act of Parliament and the convention, there is a strong argument for putting that right as quickly as possible if we respect human rights, and that there is therefore an argument for a fast-track approach?
§ Mr. Lock
I am grateful to my hon. Friend, as that was the third point that I was going to make. We must balance the need for a proper debate on any change to primary legislation with the mechanism for repeal. I have the privilege of sitting on the Select Committee on Deregulation, where primary legislation can be—indeed, is—amended using the affirmative resolution procedure. That provides for a one and a half hour debate, which now appears to be so inadequate for the purpose of amending primary legislation. At worst, it is a model that we have 836 picked up from our predecessors. In balancing the need for speed, which is far more pertinent in the case of human rights than it is for deregulation, the Bill gets the balance about right.
That was all said in the context of a request to the Government to keep the human rights commission under review.
§ Mr. Gerald Howarth (Aldershot)
This is proving to be an interesting debate, with thoughtful speeches from hon. Members on both sides of the House. We can therefore rest assured that it will not feature in tomorrow's newspapers, that it will not be on "Yesterday in Parliament", and that it will be buried without trace because, as we know, our media—broadsheets included—are interested only in the sexy bits, not the somewhat arcane matters that we are discussing tonight.
The Bill is one of a series of measures that the Government are introducing that will have a seismic impact on the people of this country. It should not be buried in a hole in the corner; it is something of which the British public should be well aware. It is part of the bulldozing of the constitutional landscape of the United Kingdom. It is on a par with the Scotland Bill, the Government of Wales Bill and the proposals to abolish the hereditary right of peers in another place who are there through an accident of birth, and substitute them with peers who are there by accident of friendship with the Prime Minister. We are faced with a torrent of legislation on important constitutional matters. The Bill is profoundly important. I am delighted that some of my hon. Friends who are in favour of the principle of the Bill will nevertheless join me in the Lobby tonight to oppose it.
The Bill has generated real public interest only because the media feel threatened by it. They are concerned about their right to intrude into other people's private lives—so it is offensive to them. Were it not for that fact, I doubt whether they would pay such attention to it.
I do not see a great demand for the Bill. Constituents do not come to my surgery in Aldershot, saying, "Mr. Howarth, we must have a human rights Bill." The hon. Member for Birmingham, Hodge Hill (Mr. Davis), who has been present throughout the debate, made an important point when he said that this is a symbolic measure and that it sends a signal to our counterparts in Europe. That is no basis on which to legislate to overturn an established principle of the House.
I am concerned about the Bill. I do not believe that there is a need for it. The Labour party is only newly converted to the cause. As recently as 1988, Roy—now Lord—Hattersley was against it. Only when John Smith became leader of the Labour party was any interest shown in it. As Lord Cocks of Hartcliffe—a splendid patriot and a former Chief Whip, but nevertheless a great man—said, this measure emanates from the chattering classes, and Charter 88 in particular. He said that it is not coming from the roots up; it is coming from a particular and narrow corner of the electorate.
I have major reservations about the Bill, as it panders to the belief that there is a human rights deficit in the United Kingdom. I believe that to be profoundly untrue. We need look no further than the origins of the human rights convention to get some understanding of why we are debating the Bill. Oppression and the systematic 837 destruction of human rights played an important part in bringing about the horrific tragedy of the second world war; the convention was drawn up in the aftermath of the war. Those who were in positions of political influence thereafter wanted to do whatever they could to prevent it from happening again, and this was one way in which they could lay down clear tenets of human rights and liberties of the subject, which this place had taken for granted for decades, if not centuries.
This place breathes the concept of the rule of law and freedom under the rule of law. We do not need any lectures from anybody overseas to promote the cause of human rights. We are one of those nations—if not the nation—that have led the way in promoting human rights. Nobody did more than Baroness Thatcher to bring human rights to eastern European countries—whose regimes were often looked on favourably by the Labour party over a number of decades—and to ensure that they enjoy freedom under the rule of law.
I understand the Government's wishing to promote their buzz phrase about bringing rights home. I believe that the present system works. Some of my friends were concerned about the closed shop, particularly as it applied to railwaymen. They sought to take their case to the European Court of Human Rights, but I felt that the matter should be decided in this country. If the people of Britain wanted the closed shop, they should have voted for a party that supported that concept. We should not be required to go abroad to enforce rights. This is where it should happen.
I have been in favour of a Bill of Rights. The late Sir Ian Mactaggart—the father of the hon. Member for Slough (Fiona Mactaggart)—was a great friend of mine. I am sorry to disappoint the hon. Lady. He was a great man and he and I promoted a Bill of Rights in the other place, but the father of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) threw it out, having said that he was in favour of it. I have changed my view. I do not believe that a Bill of Rights is necessary. I believe that the guarantor of the people's liberties in this country is the House, which brings me to another point.
The Bill will diminish respect for Parliament. It should be for Parliament to decide some of the important issues, and some of the conflicting issues. On the right of freedom of expression, or the right of an individual to enjoy a private life, it is for this place to draw the distinguishing line. It should not be handed over to unelected judges, however good they may be. I fear that those who are concerned to change the law, whether it be on euthanasia, abortion or any other issue, will cease to come to the House to seek redress but will go first and foremost to the courts. I know that it is expensive to go to the European Court of Human Rights, but that provides some hurdle. The alternative is that the role of the House will be diminished as people seek more and more to have laws interpreted by the courts instead of being spelt out by the House.
§ Fiona Mactaggart
I shall not deal with the hon. Gentleman's reference to my father, but I wish to ask him whether he really believes that it is proper to have a barrier to access to rights that means that rich people have access while poor people do not. In effect, that is what he has said.
838 Secondly, does the hon. Gentleman believe that the House is able in individual cases to draw a line, where rights are in conflict, between the right to privacy and the right to freedom of information and public knowledge? How can the House undertake that job?
§ Mr. Howarth
To answer the hon. Lady's first question, we know that going to law is always expensive. My hon. and learned Friends are expensive people. However, there are those who will appear as advocates on behalf of those who cannot afford expensive lawyers. The case of the railwaymen, to which I have referred, is one example. The case was taken up by the Freedom Association. It espoused the railwaymen's cause and helped those concerned to have their case heard before the European Court of Human Rights.
As time is pressing—I know that some of my hon. Friends wish to speak—I shall make my third and final point in explaining why I believe the Bill is profoundly unacceptable. I believe that it risks politicising the judges. My hon. Friend the Member for Beaconsfield (Mr. Grieve), who is not in his place at the moment, said a few minutes ago that he did not believe that our judges would be drawn into what he described as the political morass.
I am sure that our judges are splendid people, but, at the same time, it seems to me that there is a great danger that they will be drawn into the political morass. If the House deserts the field of battle and hands matters to the lawyers, the lawyers will definitely take up the cudgels. If that happens, they will find themselves perforce involved in deciding matters of public political controversy.
The Bill does serious harm to the concept of the separation of powers whereby Parliament enacts the law and the courts then interpret the law as passed by Parliament. That is the job of the courts, and to have lawyers trespassing upon the rights of the House will do grave damage. They will find it difficult to reconcile conflicting priorities without incurring the wrath of one side or the other. They will certainly be trespassing on the rights of the House.
I pray in aid a Member of the other place who has not been referred to so far—my right hon. and learned Friend Lord Mayhew of Twysden, who said:I am a firm admirer of our judiciary and the limitations that our constitutional practice has placed upon its work. Those limitations have preserved the judiciary from any perceived taint of partiality, especially in controversial fields of political policy. That is important and we want to risk it only after the greatest care and consideration."—[Official Report, House of Lords, 3 November 1997; Vol. 582, c.1261.]I believe that the Bill fails to provide that necessary care and consideration.
§ Mr. Ross Cranston (Dudley, North)
I congratulate my right hon. Friend the Home Secretary on introducing the Bill. I pay tribute to the Lord Chancellor and to Lord Williams of Mostyn, who shepherded the Bill through the other place. I wish also to join the tributes paid by my right hon. Friend to the late leader of the Labour party, John Smith, and to the Liberal Democrat peer, Lord Lester of Herne Hill.
There are persuasive arguments for incorporating the European convention into our law. First, the convention has an important symbolic significance. In my view, 839 it demonstrates clearly that this country is committed to human rights. That does not mean that we have not taken human rights seriously in the past—we obviously have: since 1951, we have adhered to the European convention at treaty level—but I agree with my right hon. Friend the Home Secretary that patriation of the convention is one way of restoring confidence in our Government.
It must seem somewhat paradoxical to ordinary people, if they know about it, that basic constitutional rights have until now been negative rights. In other words, they are enjoyed as long as Parliament does not legislate to the contrary. Incorporation of the convention will ensure that basic constitutional rights will become positive rights. I think that that is a great benefit.
The second persuasive argument is that it is somewhat undesirable—several hon. Members have made the point—that if individuals want to pursue rights under the convention they must go to Strasbourg. They have to incur costs and are subject to the delays associated with pursuing rights before the Commission and ultimately the European Court.
My hon. Friend the Member for Birmingham, Hodge Hill (Mr. Davis) advanced a valid argument when he said that rights in practice are vital, and added that it is all very well to have rights on paper, but, if they are not implemented and capable of being implemented in practice, they are not worth very much. That is the effect of the current arrangements. People must be greatly disillusioned when they are told that they must exhaust their remedies in this country right up to the House of Lords, and then go further to Strasbourg. That is the second argument in favour of incorporation.
The third argument is that the United Kingdom courts, once the convention is incorporated, will be able to contribute to jurisprudence on human rights. Historically, of course, they have already done that through the development of the common law. In recent times, they have referred to the convention in decision making. Under the Bill, however, they will be able to proceed directly. They will be able to take into account the decisions of the European Court—that is provided for in the Bill; it is inconceivable that that would not be open to them.
The Bill correctly provides that our courts will not be bound by European Court jurisprudence. In my view, some of the decisions of the European Court are based on faulty reasoning. In some instances, I think that it is plain wrong. The Saunders decision falls into that category. That decision did not appreciate the problems of policing corporate misbehaviour. Nor did it appreciate properly the history of insolvency and company law in this country. If our courts had handled that case under the convention, I think that a different decision would have been reached. If our courts can consider these matters, we can contribute to the development of doctrine. In an area in which legislative provisions are so open-textured, that is all important.
There are other, ancillary, advantages to incorporation, such as the benevolent effect that it will have on our attitude to statutory interpretation. The Bill provides that the convention must be interpreted in a purposive way. I hope that that approach will insinuate itself more widely into the interpretation of legislation.
840 That leads me conveniently to several matters of controversy about incorporation of the convention. I shall touch on them briefly, given the limited time that is available to me.
The first issue is the role of the judges. As I have said, they will have an important role because they must decide on the metes and bounds of very vague provisions. Moreover, some of the convention rights can, in particular contexts, be in conflict with one another. The judges will have to reconcile those possible conflicts. That goes to the nub of the debate about where the line will be drawn in relation to the press—between article 8 on privacy and article 10 on freedom of speech.
§ Mr. Gerald Howarth
Does the hon. Gentleman believe that judges should decide? Such matters should be decided in the House. I am in favour of a privacy law, but I am not in favour of its being decided by judges. If the House wants a privacy law, let us have one, but we should not leave it to the judges because we cannot make up our minds.
§ Mr. Cranston
Judges adjudicate on disputes. These matters are decided in Strasbourg, but I believe that it is more appropriate for such decisions to be made in this country.
The Bill has got the balance right, because it takes our system of parliamentary sovereignty into account. There has been quite a discussion in constitutional circles about whether we should adopt the New Zealand or the Canadian model for a Bill of Rights and whether we should enable the courts to strike down legislation, at least legislation made after incorporation, on the ground of incompatibility. In my view, if the Canadian approach had been adopted there would have been a risk of politicisation of the judiciary, or at least the appearance of politicisation. The Bill proffers the neat solution of a declaration of incompatibility. The courts cannot directly affect the validity or continuing operation of primary legislation, but they can make a declaration that would trigger the remedial order provisions.
Some Conservative Members have expressed reservations about the remedial order procedure. I would be more convinced by their arguments if the Conservative Government had not introduced the deregulation legislation under which orders can amend primary legislation. Handled sensitively, this method could speedily overcome a problem caused when a court has declared that legislation is incompatible with convention rights.
The second area of controversy concerns standing. The Bill states who can challenge an act of a public authority that is said to be contrary to convention rights. Bodies such as Justice and Liberty would prefer a wider test than that provided in clause 7, which confines standing to victims of an act that is contrary to the convention. However, the Bill again strikes the right balance.
At this stage of our constitutional development, the open-door approach to challenges to governmental acts would be premature. Frankly, as those associated with constitutional litigation in other countries and with judicial review in this country know, it is fairly easy in practice to find a victim if someone wants to challenge a particular governmental act. At an early stage of the 841 debate, I expressed a preference for a judicial review system, under which victims can rely on convention rights only by special application and not by direct involvement in litigation.
The third area of controversy concerns the ambit of convention rights once incorporated. They are, in the main, vertical rights that can be raised only against public authorities, which are widely defined in the Bill. On the particular controversy about the press, the fear of the press in this area is ill-founded. The European Commission of Human Rights and the European Court of Human Rights have lived with the potential conflict for many years. In case law, they have made it clear that freedom of expression for the press is a paramount factor.
A country's constitution is a living thing. The incorporation of the convention is one step in this country's constitutional development. I can see a day when we will have a human rights commission, and even a Bill of Rights in a different form. It goes without saying that the Bill, when enacted, will not be the be-all and end-all of human rights. Human rights must be put in a wider context. The Government's new deal to give dignity to young people through employment is just as important as this measure.
§ Mr. John Bercow (Buckingham)
Serious objections to the Bill should cause the House to refuse to give it a Second Reading. The first objection relates to the content of the articles of the European convention on human rights, some of which are profoundly flawed and unsatisfactory. On the basis of such an assessment, there is no case for their incorporation into British law.
Article 2 refers to the right to life, yet it does not prohibit the application of the death penalty. Article 4 prohibits forced labour, yet it acceptsany work or service which forms part of normal civic obligations.I leave the House to judge precisely how that article should be interpreted.
Article 5 provides that everyone has the right to liberty, yet it allows the arrest of vagrants. In earlier, perhaps halcyon times, vagrants were known as "tramps". Many of them are stout fellows who prefer to take their chances on the open road. It is not clear to me why they should be singled out by the Bill for particular, differential and unfavourable treatment.
Article 9 provides that everyone has the right to freedom of thought, conscience, and religion, but not if constraints are necessary in a democratic society for the protection of public order, health and morals. There is a further ambiguity: if thought, conscience and religion are not to do with morals, it is difficult to imagine what they are about. If morals do not have an impact on conscience and religion, how can we know where we stand?
Although the convention is full of good intentions, it is replete with contradictions and ambiguity. I am not content to proceed on that basis.
Article 11 provides for freedom of association and assembly, from which one could reasonably deduce that the right of individuals to assemble, as they have for generations, to go hunting would be underwritten and guaranteed by the incorporation of the European convention, but I doubt whether Labour Members would agree to that.
842 There is a serious problem at the heart of the content of the articles of the convention. They have one feature in common: they concern matters that are pre-eminently for democratic debate and not for judicial resolution. None of them is exclusively, or even largely, judicial or legal in character: they all have a substantial political component. That is why the elected House of Commons should adjudicate on the merits of the principles and on the articles of the convention. It is wholly inappropriate for us to follow the continental practice, and to incorporate those high-falutin' but unsatisfactory declarations into United Kingdom law.
§ Mr. Bercow
If the right hon. Gentleman had been present for more of the debate, he would have observed that several of my right hon. and hon. Friends drew attention to circumstances in which this country—under Conservative Governments as well as others—thought it right to sign up to the convention: circumstances radically different from those that obtain today. No serious threat to rights is currently entailed, and I see no justification for incorporation.
The second objection, which has been made powerfully by a number of my right hon. and hon. Friends, is that, whatever the Bill's purpose, its effect will be to confer a dramatic extension of power upon the courts. A number of Labour Members denied that, but they did not refer to the substance. I intend to do so.
There are two respects in which there is a significant increase in power for the courts. First, there is the right of the British judiciary—a right that it has never enjoyed before—to strike down secondary legislation when the parent Act does not prevent compatibility with the European convention. The Labour party pooh-poohs that as being of minimal significance, but I believe that it is a dramatic constitutional change which Labour is trying to push through on the nod in a beguiling fashion, reassuring us that nothing of substance is at stake and that there is no danger. That is not true: it is a substantial change.
Secondly, there is the entitlement of the higher courts, in respect of primary legislation, to make a declaration of incompatibility. We have heard a good deal about that from those on all sides of the debate. I find it worrying. I believe that the courts—contributing to the evolution of jurisprudence, as the hon. Member for Dudley, North (Mr. Cranston) rightly emphasised—will often take it on themselves to fashion law, seeing that as a contribution to the debate. I see nothing in the Bill that will prevent the courts from going beyond the existing terms of the convention as part of the process of trying to reform and, in their view, improve it.
Because of the courts' understandable attachment to precedent, once a precedent is established—once the courts think that something is incompatible with the convention—the prospect of their revising that judgment is so small as to be insignificant. That is a serious problem. We are creating a collision course between the courts and the House of Commons. Creative tension is healthy, but to embody and almost to sanctify 843 a potential war of attrition between two central components of the British state is unwise. It does violence to the principle of the separation of powers. Such a move may be well intended, but it is pregnant with peril for the future.
The third objection is to the extension of the power of Ministers. The Home Secretary is a sophisticated operator. He argued, with all the passion and force at his command, that the Government were protecting parliamentary sovereignty. He sought to defend the really rather unsatisfactory and indirect way in which the Government are promoting their proposal by saying, "We will not go for direct incorporation, because that would enable the courts to strike down primary legislation and would violate parliamentary sovereignty, to the defence of which we—the Labour Government—are committed." I regard that as thoroughly unsatisfactory and unconvincing.
The truth is that the fast-track power that the Government will confer on themselves if the Bill becomes law is not—as I am sure my right hon. and hon. Friends will by now have discerned—about the protection of parliamentary sovereignty; it is about the promotion of the convenience of the Executive. That is a fundamentally different point. A much more damaging procedure is to be set in train, and I am extremely worried by the threat that is being proposed. I am not alone: the House of Lords Select Committee on Delegated Powers and Deregulation has expressed concern, saying—not so very long ago—that, without severe limitations, a power of such potential width would be unacceptable. I entirely concur with that verdict; there are real problems in what the Government propose.
I believe that the way in which we have conducted our affairs to date is entirely satisfactory, and I see no cause for change. The Government have made a poor argument in support of such change. The Home Secretary has not exactly been helped; indeed, he has been weakened at every turn by the interventions of his noble Friend the Lord Chancellor. I find the Lord Chancellor's attempts to tell us that there is no threat to the freedom of the press thoroughly unconvincing. He has—foolishly and cack-handedly—given the game away a number of times, talking about the need for prior restraint, saying that stories should not be published and insisting that the press will have to have its wings clipped in the future. It is no use the Lord Chancellor, under threat of permanent removal from the Government by No. 10 Downing street, claiming that that is not his agenda. In fact, he displays wisdom in inverse proportion to the frequency of his public utterances, and his public utterances have damaged the cause of the Bill.
This is a poor Bill, and the thesis advanced in its support is still worse. We do not need it; we would be better off without it. I invite my right hon. and hon. Friends to oppose a Second Reading for such an unnecessary and unwelcome measure.
§ Mr. Gareth Thomas (Clwyd, West)
I welcome the Bill, and congratulate the Government on introducing it so early in this Parliament.
It is an indication of how seriously the Government are pursuing their programme of constitutional reform and modernisation that time has been found to introduce this 844 important Bill. It needs to be seen in the context of the Government's intention to modernise the state and to devolve power. In my view, it is a long overdue reform. It has been variously described this evening as revolutionary and seismic, but perhaps it appears more dramatic than it is. After all, it only addresses the anomaly whereby, although the United Kingdom is internationally bound by the convention, the convention is not enforceable in this country. In that sense, the Bill repatriates the convention: it brings it back to the United Kingdom. The Bill seems more revolutionary than it is because, for 18 years, the Conservatives ruled in such an arrogant manner, producing a system of government that abused power.
The United Kingdom was among the first countries to ratify the convention in 1951, but—probably because of the number of successive Conservative Governments—it is among the last to incorporate it in domestic law.
§ Sir Nicholas Lyell
Will the hon. Gentleman remind himself that, until 1993, it was Labour party policy not to incorporate the convention?
§ Mr. Thomas
Opinion has developed since the second world war. After the war, the conventional wisdom was that it was not necessary for countries such as the United Kingdom to incorporate measures such as this. Since then, however, a succession of Governments have, either rashly or blindly, eroded individual rights in this country. That is why this reform is so long overdue.
Let me specify four points that need to be addressed. They are the reasons why it is so important to deal with the anomaly to which I have referred. First, the convention needs to be brought closer to people. It is not a matter for the chattering classes. Articles enshrined in the convention on punishment without law, the right to respect for private and family life, the right to a fair trial and the right to liberty and security concern grass-roots issues; they affect ordinary people. Access to such rights has not been easy. It has involved an arduous, expensive and long-winded process whereby litigants have had to exhaust all possible domestic avenues of redress before making the journey to Strasbourg. The Bill significantly improves the status quo in resolving such a difficulty—and not before time.
Secondly, by incorporating convention rights into UK law, the general level of public confidence in our legal system will be enhanced. No longer will it be necessary for lawyers to say, "Well, you have gone through all the possible procedures in the UK, but I am afraid that we cannot take the case any further. You have to go abroad to Strasbourg to ventilate your case and get a hearing." That problem will be resolved, and, at a far earlier stage, it will be possible for courts to intervene and determine issues concerning the applicability of the convention to prevent inconvenience and hardship.
Thirdly—this is a most important point which Conservative Members have neglected—the incorporation of the convention and its interpretation by British judges will import an important element of British jurisprudence. In a very real sense, that is a devolution of power from 845 Strasbourg to British courts. One can expect that British judges, versed in the sensitive relationship between Parliament, the Executive and the judiciary, will produce decisions that are inherently more sustainable and plausible.
Fourthly—I make specific reference to clause 19—the Bill will improve the culture and awareness of human rights in the United Kingdom. It is particularly welcome that the Bill stipulates that before any Bill is introduced, it will be necessary for the Minister in charge of that Bill to make a statement of its impact on human rights. That is a very welcome change, especially after an unfortunate period during which the state has been favoured too much over the individual. Is it not a strong indication of the Government's altruism that, armed with an overwhelming parliamentary majority, they none the less consider it necessary to lay down for the long term a system of rights to protect individuals from misuse of power by the state? The provision is a litmus test of the conviction behind the Bill.
I welcome the Bill; it is long overdue. It is an essential part of the Government's reform and modernisation of our constitution for the 21st century.
§ 9.3 pm
§ Mr. Edward Leigh (Gainsborough)
We all know where the Government are coming from. Everybody is in favour of human rights as they are traditionally understood.
§ Mr. Leigh
There is no debate about that—although my hon. Friend says that I should speak for myself. I am not sure whether he meant to say that.
We know that the convention grew from conditions in the second world war. We have been reminded of that again and again. But the scope of human rights has been greatly extended since the convention was first drawn up in 1950, the year in which I was born. In the famous case of Tyrer v. United Kingdom in 1978, the convention was held to bea living instrument—a phrase which Labour Members have bandied across the Floor—which…must be interpreted in the light of present-day conditions.When we originally signed up to the convention, we were thinking in terms of torture and slavery. I am not sure whether we were thinking in terms of caning in schools. The scope of human rights has been extended continuously, and therein lies the danger.
Having said that, the Strasbourg Court—many of my hon. Friends would not agree—has been remarkably careful to restrict itself in moral and social areas. As I said to my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), under the margin of appreciation, the Court has applied a kind of principle of subsidiarity. It has left controversial decisions concerning social and moral issues largely to national judges. I do not have the confidence of my right hon. and learned Friend the Member for Sleaford and North Hykeham and my hon. Friend the Member for 846 Beaconsfield (Mr. Grieve) in our judges not wanting to extend the areas on which they adjudicate. British judges will have to adjudicate on very sensitive areas.
Of course, judges do their best to interpret the law, but they have prejudices—as we read last week. Not all judges are perfect. Some are tardy; some, according to barristers who appear in front of them, are horrible; some do not even know who Gazza is; some are out of touch. Judges do not necessarily know more than Members of Parliament about the real world.
We have heard a great deal about the fast-track procedure and the danger of secondary legislation overtaking primary legislation. I concede the point to Labour Members that those who live by the sword of the Deregulation and Contracting Out Bill may have to die by it. Perhaps we can now see that it was dangerous to proceed down such a route. Just because a mistake is made once is not a good reason for compounding the error by repeating it. For the sake of brevity—I have been asked to speak for less than 10 minutes—I adopt the arguments of my right hon. and hon. Friends about the dangers of the 90-minute procedure. It is not a small point; it is very important.
Rights-based law does not guarantee freedom. I shall illustrate that by describing how secular courts in other countries have handled difficult social issues. Under the constitutional "right to free speech" in Canada and the United States, pornographers have made great headway in overturning legislation passed by democratic means. Only recently, a law restricting pornography on the internet, which was duly passed by an elected Congress and the President, was overturned by the Supreme Court.
We have heard much about how we should have an unwritten constitution based on rights, but the USA's rights-based constitution has profoundly influenced education. In the 1960s, the US Supreme Court struck down school prayer and reduced religious education in schools. Perversely, the Supreme Court used the separation of church and state provisions of the constitution—which were intended to protect religious freedom—so that, in the US, freedom of religion has become freedom from religion.
In 1993, the Religious Freedom Restoration Act was passed to permit individual states—if they wanted to, and by democratic means—to allow school prayer in their states. It was passed virtually unanimously by Congress, and only three senators opposed it. However, within four years of its becoming law, it was struck down by the Supreme Court as unconstitutional. I mention that example to warn well-meaning hon. Members about creating a rights-based constitution, which can have perverse anti-democratic effects.
That brings me directly to an important issue in this case, which was raised by religious leaders and a number of Law Lords in the other place. Article 9 of the convention on human rights—and Bills of Rights around the world—contains provisions to protect religious liberties. The question is how these liberties will fare in the secular courts. The experience from Holland, Canada and the United States is not encouraging, as I shall explain.
Under clause 6 of the Bill, all public authorities are required to comply with the convention. Public authorities are defined as those bodies which perform public functions. What could be clearer? However, as my right 847 hon. Friend the Member for Huntingdon (Mr. Major) said so often during the last Parliament, our civil servants have a tendency to gold-plate European legislation so that a simple four-page directive from Brussels can become a 90-page document from Whitehall. I make no criticism of our European partners for that.
The Bill is not convention-lite—a cut-down version of the convention. It is convention-plus, with the added requirement that all sorts of new bodies, such as the Churches and the Press Complaints Commission, will be required to comply with the convention. That is typical of the way in which we conduct our affairs in the UK, and that is why such Bills can have different effects from those envisaged by those who draft them. The White Paper says nothing about Churches being required to conform to the convention, but, as the Lord Chancellor has made clear, Churches and the other faiths will have to comply with the convention when they carry out public functions.
As I said to my right hon. Friend the Member for North-West Cambridgeshire (Sir B. Mawhinney), that means that Rupert Murdoch's media empire—which, arguably, has far more power than any religious organisation—will not be covered by the convention, but a lowly, impoverished local parish church that is simply trying to carry out its religious functions in the way in which it thinks best will be covered. That is paradoxical, and I cannot believe that that was intended by the framers of the Bill. The Government have given various promises, but I beg them to take these points seriously.
The Prime Minister and I share the privilege of sending our children to a Church school; people send their children to such schools because they like the ethos. If a teacher is dismissed because his or her views or actions offend the religious ethos of the school, he or she—we can be sure—will takse that Church school to court. The whole ethos of Church education in this country could be overturned or, at least, be under attack.
That may sound far-fetched, and the Government have said that it will not happen; but I shall refer to one case. An institute of theology in Holland, run by the Dutch Salvation Army, is being sued by an atheist who was refused a position on the teaching staff. That is absurd, but it is going on in Holland.
§ Mr. Leigh
Perhaps people in this country do not want everything that goes on in Holland to go on here. That is why we are right to raise these fears. If the Government seek to brush aside the views of Law Lords and religious leaders in another place, they will be doing themselves a disservice.
Our record in this country is second to none in protecting religious freedoms. Would it not be ironic if, a century after we passed emancipation legislation to buttress religious freedom, our desire to promote human rights in the Bill should, perversely, attack religious freedoms? I cannot believe that that is the intention of the Government, and I hope that they will give more than assurances. I hope they will give a commitment to accept the amendments passed in another place.
§ Mrs. Theresa May (Maidenhead)
I am grateful to my hon. Friend the Member for Gainsborough (Mr. Leigh) for keeping his remarks shorter than he would perhaps have liked, to allow me to contribute, albeit briefly, to the debate.
Several hon. Members have referred to the desirability of the convention in itself, but our debate is not about that but about the Government's decision to incorporate it into United Kingdom law and, more particularly, the means whereby they want to implement that decision.
In the debate that has developed over recent months, I have been worried by the Government's reluctance to accept, behind the soundbite of human rights, the full implications of their proposals on incorporation. Those proposals are writ large in the Bill, which has already been discussed in some detail in the other place.
The Government's reluctance has manifested itself in various aspects of the Bill. We saw it in the debate on whether the Bill would lead to a back-door privacy law. From the interchanges between the Prime Minister and the Lord Chancellor, it seemed that there was disagreement and that either the Government had not thought the matter through properly or they did not want to admit the Bill's full implications. The Home Secretary said this afternoon that the Government, having accepted that there may be more to the issue than they at first acknowledged, intend to consider it and to hold consultations, and may table amendments accordingly.
The hon. Member for Wellingborough (Mr. Stinchcombe) was very brave: it was to his credit that he pointed out to the Government that the Bill had considerable resource implications. He referred to the implementation of rights and the effect on expectations of, for example, the right to proper housing. I wonder whether the Chancellor of the Exchequer has paid any attention to such resource implications.
The Government have been reluctant to accept the Bill's implications for the sovereignty of the House. Both Government and Opposition Members have spoken about that. It is disappointing that Labour Members do not seem to be able to understand and accept the implications for the responsibility of the House of the incorporation of the convention into United Kingdom law, and the particular way in which the Government have chosen to effect it.
§ Mrs. May
I am sorry, but I have very limited time.
The implications have been rejected by Labour Members, but it is essential for the future of the House that they be considered. It is perhaps not surprising that Labour Members do not acknowledge the way in which incorporation will change the essential balance of power between Parliament and the judiciary, whereby Parliament makes the laws and the judges apply them.
That is not surprising, because this is yet another policy in a long line of Government policies that will reduce the sovereignty of Parliament and diminish the rights and responsibilities of Members of Parliament, as democratically elected representatives, to make decisions and enact laws that respect the freedoms and rights of our individual citizens. The Government constantly downgrade the role of Parliament in many different ways.
849 My right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) first mentioned the Bill's implications for the role of the Churches, and the subject came up in some other speeches, but in perhaps rather fewer than I expected. A number of Labour Members have claimed that articles 8 and 2 of the first protocol should give comfort to those who are concerned about religious freedoms. As my right hon. Friend said, those articles protect individual freedoms, not the Churches' freedoms. Some amendments were made to the Bill in the House of Lords, but, like other hon. Members, I want Churches specifically to be excluded from the definition of public authorities.
The Bill fails to specify significant freedoms that the Churches should retain, especially in educational matters. For example, it should specify the Churches' freedom to appoint head teachers to Church schools and to operate admissions policies according to their religious principles. A child's right to an education should not mean that Churches cannot choose a child who attends the local church rather than one who does not.
My time is running out and I know that the Front Benchers want to respond to the debate. I am sorry that I have been restricted in my comments, but I am grateful to have had the opportunity to raise those points, which, I trust, the Government will address. In particular, I hope that they will deal with the issue of parliamentary sovereignty, for which they seem to have been unwilling to accept that the Bill has implications.
§ Sir Nicholas Lyell (North-East Bedfordshire)
This has been an interesting debate—indeed, as has been said, it will be interesting to see how widely it is reported. Hon. Members on both sides of the House have made thoughtful speeches, demonstrating what anyone who has followed the history of the convention over its 45 years of operation knows—that there have always been widely differing views about the matter within and across parties.
The first point that I must make in opposing the Bill is to affirm the official Opposition's strong belief in human rights. It is the first point that we make in our reasoned amendment, and there will be no disagreement about it among hon. Members.
Having said that, I believe that it is essential that there is a proper balance, which is where the Bill is deeply flawed. If the European convention on human rights is ever to be satisfactorily incorporated into the United Kingdom's domestic law, the key point—which, again, we make clear in our reasoned amendment—is that there must be a proper balance between the roles of our domestic courts, the Court at Strasbourg and the United Kingdom Parliament. For that reason alone, if for no other, we would deny the Bill a Second Reading. I make it perfectly clear that the Conservative party is not convinced that the case for incorporation has been made in any event; it is certainly not made by the Bill.
Views have differed over the years on the wisdom of incorporation. I point out again that, until 1993, the Labour party—including a number of right hon. and hon. Members whom I see present—vigorously opposed incorporation; it has been on a journey to Damascus, or so it would have us believe. None the less, those who have studied this matter will realise that the convention does not fit easily into the United Kingdom's constitution 850 or our system of common law. That is in stark distinction to the way in which it can fit into the so-called monist—it is a strange word—countries, where treaty obligations automatically have binding force in domestic law. The difference is that almost all those other countries have a detailed written constitution, as does Germany for example, or in any event place a far greater emphasis on codification and black-letter law, in which the concepts of the convention are either largely reproduced or the ability of the convention to overturn them is prevented by express words.
I have great regard for the Home Secretary, but one of the sad things about the debate is that he should have repeated the constant refrain that the United Kingdom has a bad record in relation to Strasbourg. That is not true and I am afraid that it has reflections of Henry VIII and his period—when one wants to destroy or change something, one first seeks to give it a bad name, which is what happened then with the monasteries.
The convention largely reproduces concepts that are deeply embedded in our common and statute law. Our laws and practices have been upheld by Strasbourg far more often than they have been struck down. The United Kingdom gave the right of individual petition—people can take their own case to Strasbourg from the United Kingdom—as long ago as 1966. France gave that right only many years later. As my right hon. Friend the shadow Home Secretary, the Member for North-West Cambridgeshire (Sir B. Mawhinney) made clear, a balanced analysis that takes account of the size of national populations and the length of time that a member state has given a right of individual petition, shows that, far from having a bad record, the United Kingdom is among the very best. If necessary, we will ask parliamentary questions to bring that out. It is confirmed not only by past applications but by those in the pipeline. The United Kingdom has 26 current applications that are deemed admissible, which does not mean by any means that our judgments will be overturned, France has 75—I am using only sophisticated, major western European countries as a comparison—and Italy 370. So, that puts the matter into perspective.
Our first key criticism of the Bill is that the fast-track procedure is wrong. It seriously restricts people's right to effective representation in Parliament as well as the role of Parliament itself. That is ironic in relation to the convention. I see the hon. Member for Hull, North (Mr. McNamara) in his place. He regretted the fact that the preamble to the convention had not been included in the Bill. The preamble states expressly that the fundamental freedoms that it espouses arebest maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend".So, the twin pillars of the fundamental freedoms in which we all believe are human rights and an effective political democracy. The two must go hand in hand. That is why our first attack is on the fast-track procedure—such procedures are wrong in principle and unnecessary in practice.
Frankly, I was disappointed by the speech of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), who did not seem to have bothered to read our reasoned amendment. It is not all that easy to read. Tight language is required in the drafting of such 851 amendments, as Madam Speaker will know. However, for a lawyer like the right hon. Gentleman, it would be perfectly clear if he had taken the trouble to study it.
The first point, which was re-emphasised by the Home Secretary, is that primary legislation has always been rare and is likely to be so in future. Is that the Home Secretary's point, or is he saying that it is going to be very frequent? We believe that it will be unnecessary in practice and that it will be rare because primary legislation has been required on only 10 occasions in the 45 years of the convention's history.
I pause to tease the matter out a little. The hon. Members for Wellingborough (Mr. Stinchcombe) and for Wyre Forest (Mr. Lock) both made distinguished speeches—I hope that that does not embarrass them—and see a huge and developing role for the judiciary. It is possible. I think that there will be a flush of cases. I do not think that many will involve primary legislation being struck down.
§ Mr. Straw
We are trying to make predictions. I think that the best guess is that the right hon. and learned Gentleman is correct that the Judicial Committee of the House of Lords will hold only infrequently that there are incompatibilities. The speeches of many distinguished members of the senior judiciary in the other place show that the judiciary will do its best to declare Acts of Parliament consistent with the convention, as they are required to do. Although the procedure may not be used very often, which I should have thought would reassure him, I return to the practical question whether it was satisfactory that we ended up with a two-year delay in the case of Chahal. That recognised neither individual human rights nor the needs of national security.
§ Sir Nicholas Lyell
I am grateful to the right hon. Gentleman for intervening because he has made what I can respectfully describe as a bad point, which I will pick up. Such declarations of incompatibility are not wrong in principle because they will be rare but because it is important that Parliament should be able to play a full part in the development of the delicate balance of rights and obligations for which the convention calls.
The Home Secretary mentioned the Chahal case. During the debate, I looked up how much time was taken by Chahal. The Home Secretary said that it took two years. My right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) did not introduce the legislation before the general election but it took the Government only seven months to pass it. It took two hours 41 minutes of parliamentary time in the Lords and three hours 18 minutes in this House. That can hardly be regarded as excessive. More important than that—my next point will be that there must be proper parliamentary scrutiny and debate—it involved an amendment. The Minister who is to reply should remember that, because he moved it. It would not have been satisfactory for the legislation to be introduced by unamendable order. The amendment provided a right of appeal from the Special Immigration Appeals Commission to the Court of Appeal. If it had been an unamendable order, the Government would have had to take it away and start again, and the measure would have taken three hours in each House.
§ Mr. Mike O'Brien
The right hon. and learned Gentleman was not involved, but the hon. Member for 852 Hertsmere (Mr. Clappison) was, and he will recall that much of the discussion took place by way of consultation between parties. It is open for the Government to put forward a draft, consult on it, consider the views advanced by the Opposition and others and bring it before the House. All that can be done under the terms of the Bill.
§ Sir Nicholas Lyell
Having laid one order, if the Government wish to move a separate one, they must withdraw the first and start again. They cannot just amend it in Committee.
§ Mr. Mike O'Brien
The right hon. and learned Gentleman has misunderstood. The consultation takes places before the order is laid.
§ Sir Nicholas Lyell
I am afraid that the hon. Gentleman is wrong. The amendment was refused in the House of Lords and it was introduced here, and it was then agreed to by the other place.
The unsatisfactory nature of the fast track procedure is shown by the Government's initial and current muddle on the question of privacy and press freedom. We are delighted to note that they have now changed their mind about that. In other words, the very first time that there was a whiff of grapeshot and someone pointed out that there could be conflicts between two articles—in this case articles 8 and 10—and as soon as a matter became one of public interest, as press freedom and privacy have rightly become, the Government scrambled back and suggested that they are to amend the Bill. We welcome that they will do so through primary legislation, but will not similar cases arise time and again in the future?
Let us take another example other than that of Chahal, which was a quite simple thing to amend. Consider Mr. Malone—the telephone tapping case, which was mentioned by the hon. Member for Wyre Forest. Surely no one is arguing that a Home Secretary would suggest that the Interception of Communications Act 1986 could have been created by an order, after a debate of one and a half hours. He would not make such a suggestion.
The scope of the Bill is unclear. It fails to define what is a public authority, which is thoroughly unsatisfactory. The second major complaint in our reasoned amendment is that the Bill providesan additional, separate, and potentially incompatible, constitutional framework".That requires careful thought by the Government. We do not know whether they intend a new Bill of Rights in this country, but the balance between Parliament, the United Kingdom and the Strasbourg Court is wrong. Under the proposed structure, there will be no right of appeal to Strasbourg by either the Government or a public body. In other words, once a decision has reached the House of Lords or the final courts of appeal, such as a court martial, the Appeal Court, and so on, under clause 4 (5), and if the Government or a public body has lost, there will be no opportunity for any further appeal to Strasbourg. No matter how serious the matter of public interest and how far our law may have strayed from what Strasbourg may find out, the case can be taken no further. Is that really what the Government intend?
It may seem far-fetched to suggest it, because I have a great deal of respect for the wisdom of our judiciary, but, in theory, even our abortion laws could be struck 853 down under the right to life provisions of article 1. That is not a fanciful notion because the same has happened in America and Canada under their constitutions. That action would be far more drastic than that which the Strasbourg Court would ever be likely to take.
We will probe the Government's true intentions and table amendments to provide a mechanism whereby cases can proceed to Strasbourg as they would today when it is in the public interest to have them argued and decided there. Only thus can we be assured that rulings that apply to the United Kingdom will be subject to universal application within the countries of Europe. In that way, the doctrines of the margin of appreciation and subsidiarity, rightly mentioned by my hon. Friend the Member for Gainsborough (Mr. Leigh), will be given their full weight and will be properly adhered to.
I am not suggesting that our courts would ignore our own traditions. I am on record as acknowledging that one of the benefits that should come from a properly balanced structure is the beneficial input of the wisdom of the United Kingdom judiciary. But courts have no monopoly of wisdom. The overall balance must be right for the protection of our judiciary as well as the protection of democracy. A close reading of the Bill suggests that the Government are uncertain about how much of the convention they will entrust to the judiciary.
Why, for example, is article 13, which provides that:Everyone whose rights and freedoms …are violated shall have an effective remedy before a national authority",not incorporated? Why can cases be brought only in relation to alleged breaches by the Government or so-called public authorities? How far do the Government intend or expect the judiciary, following incorporation, to use the convention to develop the common law? Is the Press Complaints Commission a public authority? At one moment, the Government said it was not, but they took advice from David Pannick QC and then said it was. Is that now their position and why they are now coming forward with amendments? What about ombudsmen? There are banking ombudsmen and insurance ombudsmen and all sorts of ombudsmen—are they public authorities? There must be balance.
In conclusion, it is because of the deficiencies that I have outlined that we have tabled our reasoned amendment. I am sure that it is not in the Home Secretary's character to be arrogant on such matters, but we look forward to careful answers to important questions—to an assurance that the respective roles of Executive, judiciary and legislature will be fully respected and that the substance of our reasoned amendment will be accepted. Failing that—I fear it will be failing that—I invite my right hon. and hon. Friends to join me in pressing our points firmly home in the Lobby.
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien)
This has been a good debate on a Bill of great importance. There have been many excellent contributions from hon. Members on both sides of the House. My hon. Friend the Member for Birmingham, Hodge Hill (Mr. Davis) welcomed the Bill in his role as leader of the delegation from the United Kingdom to the Council of Europe. Many people appear to have received invitations to visit the Home Secretary 854 in his office—even the right hon. Member for Maidstone and The Weald (Miss Widdecombe) will get, no doubt, a warm welcome back to the Home Office in due course.
My hon. Friend the Member for Hull, North (Mr. McNamara), who has great knowledge of Northern Ireland, raised the important issue of human rights there. He asked us to consider allowing organisations that are not themselves victims to bring class actions and to anticipate issues. We considered doing that, but decided to follow the convention practice and enable victims of breaches to raise issues as they occur. On the question of a preamble or a purposive clause, we believe that the Bill as it stands is clear about what it is intended to achieve and that a preamble or purposive clause is unnecessary.
My hon. Friend the Member for Keighley (Mrs. Cryer), in what must have been a difficult, but courageous and moving speech, raised her personal experiences as a Member of Parliament, as the wife of a Member of Parliament and as a mother in dealing with many of the controversial issues relating to the balance that has to be struck between articles 8 and 10, which deal with the need for freedom of expression and the right to private and family life. Her point was echoed by my hon. Friend the Member for Wellingborough (Mr. Stinchcombe), who stressed that that balance had to be achieved.
The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) gave a good, but extraordinary, speech, which displayed a not inconsiderable degree of thought on the issues. He expressed his doubts about the convention, but appeared to conclude that, despite the problems, we were better off with incorporation than without it, although his doubts about remedial orders affected his support for the Bill. If I have time, I might deal with some of the issues relating to remedial orders; if not, perhaps we can deal with them in Committee.
The hon. Member for Woking (Mr. Malins) suggested that the convention was out of date and that adhering to it was the lesser of two evils. The fact is that, year on year, more British people find the convention increasingly relevant and take cases to Strasbourg—so much so that changes are having to be included in the Bill to ensure that, in future, the Strasbourg Court will sit on a more full-time basis. I suggest that the hon. Gentleman is wrong to write off in such a sweeping manner the important safeguards in the Bill.
My hon. Friends the Members for Kilmarnock and Loudoun (Mr. Browne) and for Wyre Forest (Mr. Lock) both made impressive and well-argued speeches. My hon. Friends raised an issue that was also raised by my hon. Friend the Member for Slough (Fiona Mactaggart) in her typically robust and well-informed contribution. The issue was that of the human rights commission, in which I am sure the Liberal Democrats are also interested. We have not ruled that out in future, but, during the debate on the Bill, we want to concentrate on the issue of incorporation itself. We are conscious that there are other, more detailed issues to consider—such as how a human rights commission would relate to existing bodies, such as the Commission for Racial Equality and the Equal Opportunities Commission—but those can be dealt with on another occasion.
855 My hon. Friend the Member for Slough raised also the issue of a parliamentary Committee. The Government propose to strengthen Parliament's role by supporting the creation of a new parliamentary Committee on human rights. It could be a Joint Committee of both Houses or a Committee of each House; that is a matter for the House to decide. If the House so decides, the Committee's function could be to scrutinise proposed legislation, to ensure that human rights are respected, to assess UK compliance with various human rights codes and to keep the Act—as it will eventually undoubtedly become—under constant review.
The original proposal for a Committee was made to the previous Government by Lord Lester of Herne Hill, Lord Alexander of Weedon, Lord Simon of Glaisdale and my noble Friend the Lord Chancellor. A Committee would give Parliament the ability to consider reports that examined the overall issue of human rights in the United Kingdom context, and would advise the Government and both Houses of Parliament on how rights under the convention were developing and how we should respond to those developments. I hope that that proposal will be welcomed by both sides of the House.
I hope that the proposal also reassures the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), who supported the Bill, and who drew attention to the many hon. Members and to those in another place who supported incorporation of the convention. As the right hon. Gentleman said, he himself expressed the idea of incorporation in December 1993. I pay tribute to him and to those who have kept alive for so many years the fight for incorporation. He said that the Bill was a measure in which the Government could take legitimate pride—I thank him for that, and we do.
The shadow Home Secretary made some points that I accept. He said that incorporation would not of itself guarantee human rights; I agree. However, incorporation might help to direct our minds to the rights of the individual against the state. I therefore think that it will help. He said also that it had been necessary for the previous Government to amend primary legislation 10 times to comply with the convention, and that they sought to comply with Strasbourg's decisions even if they did not agree with them. I accept that, in that respect, the previous Government's record was good.
I am concerned about the shadow Home Secretary's comments on politicising judges; I do not accept that that will happen. Lord Bingham's words have already been quoted in this debate. He said:judges already from time to time find themselves deciding cases which have political, sometimes even party-political implications. The judges strive to decide those cases on a firm basis of legal principle; and that is what they will continue to do when the convention is incorporated if the Bill becomes law."—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1246.]It appears that the shadow Home Secretary trusts Strasbourg judges—but not our own judges—to change the law. In his book "What Next in the Law?", Lord Denning said that we have to trust someone, so why not trust the judges. Does the right hon. Gentleman really say that he has no trust in our judges, and that 856 they cannot distinguish law from their own "socio-political theories"? He seemed to suggest that our judges would deliver "socio-political theories".
I almost thought—with all those socio-political theories—that I was listening to an aging Marxist decrying the establishment's conspiracy against the proletariat. However, I treat the point with seriousness because it deserves that. Judges will have to apply the law. As clause 21 makes clear, they will have to take into account judgments of the European Court of Human Rights, and decisions and opinions of other bodies. They will not, of course, be bound by those decisions when our primary legislation says otherwise. They must accept primary legislation if it differs from those decisions, although judges may make a declaration of incompatibility. Our own courts—the House of Lords, the Court of Appeal and the High Court—will soon develop their own jurisprudence, and the lower courts will be bound by that.
The shadow Home Secretary mentioned having to accept decisions of the European Court of Human Rights that are based on other countries' cases and problems. Conservative Members will recall voting for the European Communities Act 1972 and for other legislation introducing European law that not only was based on case law developed across Europe, but overruled our laws. Famously, Lord Denning warned that European law would run up the rivers and estuaries of our common law. It did, and Conservatives voted for it. The convention will not overrule our primary legislation, and the Bill will preserve parliamentary sovereignty.
The purpose of the Bill is simple: it is to bring rights home. It is to reclaim, for people in this country, the rights to which they are entitled under the convention. The purpose may be simple, but the effects will be profound. The Bill will benefit individuals, Government and the whole of society.
First and most obviously, the Bill will improve people's access to their rights, as my hon. Friends the Members for Dudley, North (Mr. Cranston) and for Clwyd, West (Mr. Thomas) said. At present, those who feel that their convention rights have been infringed cannot, save in very limited circumstances, obtain redress in this country. They must take their grievances to Strasbourg. That is not a road to be taken by the faint-hearted. It takes about five years for a case to be resolved. Only those with time, patience, considerable willpower and, sometimes, considerable money are likely to stay the course. It cannot be right to ration rights so that only the dogged few can hope to benefit from them.
Enabling our courts to take account of the convention is about more than reaching quicker decisions. It will mean that the judges of a domestic court can consider all the issues relevant to the case before them. They will no longer have to put out of their mind convention arguments that might be relevant to the case, but which they are currently debarred from considering. Therefore, the Bill will change the approach that the courts adopt to convention cases.
The present situation is wholly unsatisfactory for the courts and for individuals. It is artificial to cordon off a set of rights and make them the exclusive preserve of the Court in Strasbourg. It leads to frustration and it impedes effective justice.
857 The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) was worried about politicisation. I consider that our judges must be able to bring their knowledge of the United Kingdom's traditions and practices to bear on the cases that come before them. They will be able to interpret the convention rights in ways sensitive to the specific circumstances that will apply in this country. The rights under the convention will become interwoven with our laws.
The Strasbourg Court recognises that domestic courts have the primary role to play in protecting individuals' rights under the convention. The proper role of the Strasbourg Court is to act as a backstop, but, at present, the Strasbourg institutions are often placed in the front line, as the first bodies to consider issues arising under the convention. That serves no one's interest.
Opponents of the Bill seem to exhibit a touch of schizophrenia. Human rights are, it seems, to be supported abroad, but ignored at home. On one hand, we have an exemplary approach to fulfilling our international obligations under the convention—I have praised the previous Government's method of doing so—but, on the other, we have been almost alone in denying our people domestic access to their rights.
Half in, half out—the hokey-cokey approach will not work. It was the position of the Conservative party regarding the European Union. It had its left foot in, its right foot out—in, out, in, out and shake it all about—and that seems to be the policy that it is now adopting on the European convention. We know how ineffective the Conservatives were in their attitudes towards Brussels. Now they are wrong, too, in their attitude to the convention. We need an end to these mixed messages. Our citizens need a clear lead. The Government will give it. We are firmly committed to protecting the rights of our people, and the Bill is one demonstration of that.
Critics of the Bill seem to have adopted two main lines of attack. First, we have heard the authentic voice of empire, almost, from below the Gangway—the view that individuals in foreign countries may need the protection of rights to defend themselves from the state, but that we in the United Kingdom have no need for such protection within our country. We may have written the convention, hon. Members argue, but we did so for the other countries.
That view is flawed. We already accept the judgments of a European body in respect of the convention, and have amended our laws many times in response to its findings. Therefore, we already adapt our laws in the light of convention rights. Incorporation will mean, however, that United Kingdom courts can assist in shaping those rights in a manner sensitive to our country's ways. At present they cannot. Moreover, at a time when the United Kingdom has committed a total of 50 violations of the convention, it smacks of complacency to say that we have nothing to learn by giving effect to convention rights in our law. That does not substantiate the point made by the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) in his closing speech. The issue is whether we have something to learn. I suspect that he, more than anyone, would agree that we can all learn something from the decisions of the Court at Strasbourg.
858 The other line of attack taken by opponents of the Bill is underpinned by a sort of defeatism—the view that it is almost too difficult to bring convention rights into our legal system because of this country's unique tradition. The argument goes that providing these rights is incompatible with the doctrine of parliamentary sovereignty. Judges will be drawn into unsavoury disputes with Parliament, thereby becoming politicised. I seem to recall a time—the time of Thatcher—when Conservatives prided themselves on a can-do attitude to life—where there is a will, there is a way. Not any more, it seems. Now they think that we are too inadequate for the task and say, "Just leave us alone." They may be inadequate to the task of governing: we are not. We can do it.
§ Sir Brian Mawhinney
Perhaps the hon. Gentleman can supply us with a little can-do. Perhaps tonight he will answer the question that I asked him last week and he did not answer—the question about the definition of a public authority. Does a body that spends taxpayers' money, or fulfils a statutory function, or has Government appointees on its governing body constitute a public authority for the purposes of the Bill?
§ Mr. O'Brien
That will be a matter for the courts, but it would appear to be likely to be so. It is all set out clearly in the Bill—in clause 6. If Opposition Members read it, they will have plenty of chance to discuss it in Committee. Then, I hope, they will begin to understand precisely what a public authority is likely to mean.
I apologise to the right hon. Member for North-West Cambridgeshire because I have discovered, following inquiries, that he has not yet received the written answers to his questions. He should by now have received them—
§ Mr. O'Brien
—at least, he should do shortly. I am informed that they will be on the Notice Board. In any case, I apologise for the oversight.
§ Sir Nicholas Lyell
The hon. Gentleman makes much of our anxieties about leaving these matters to the domestic judges. In that case, why is the Home Secretary not leaving them to the judges in relation to articles 8 and 10? Why do the Government propose to amend the powers and rights of the convention before they have even incorporated it?
§ Mr. O'Brien
We have decided to reinforce the Bill in a way that has, I suspect, met with a great deal of approval. Already, Lord Wakeham, chairman of the Press Complaints Commission, has said of today's announcement of amendments by the Home Secretary:My view is that the proposals outlined today by the Home Secretary are a significant move which I anticipate will secure by means of self-regulation the convention rights both of freedom of expression and of privacy. The Government has clearly listened to our concerns.We have thus received praise from Lord Wakeham. Some difficult discussions have been concluded satisfactorily; both parties have shown good will. 859 It goes to show that when a Government are prepared to take control and talk to people, they can achieve far more than Governments who are not so prepared.
The Bill is part of the Government's modernisation of British politics. It is about giving people new rights in their dealings with the state. It is part of a comprehensive package of constitutional reforms which will increase individual rights, decentralise power, open up government and reform Parliament. We have moved to create a Scottish Parliament and a Welsh assembly. There is to be a Freedom of Information Act, a referendum on the voting system for the House of Commons, a long-overdue reform of the House of Lords, the abolition of the law-making powers of hereditary peers and, by means of the Bill, the introduction of the European convention on human rights into UK law. That will enable our people to access their rights in our domestic courts without having to go to Europe. The Bill empowers our people and I commend it to the House.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 144, Noes 335.862
|Division No. 171]||[9.59 pm|
|Ainsworth, Peter (E Surrey)||Fowler, Rt Hon Sir Norman|
|Amess, David||Fraser, Christopher|
|Ancram, Rt Hon Michael||Gale, Roger|
|Arbuthnot, James||Garnier, Edward|
|Atkinson, David (Bour'mth E)||Gibb, Nick|
|Atkinson, Peter (Hexham)||Gill, Christopher|
|Baldry, Tony||Gillan, Mrs Cheryl|
|Bercow, John||Goodlad, Rt Hon Sir Alastair|
|Beresford, Sir Paul||Gorman, Mrs Teresa|
|Blunt, Crispin||Gray, James|
|Boswell, Tim||Green, Damian|
|Bottomley, Peter (Worthing W)||Greenway, John|
|Bottomley, Rt Hon Mrs Virginia||Grieve, Dominic|
|Brady, Graham||Gummer, Rt Hon John|
|Brazier, Julian||Hague, Rt Hon William|
|Brooke, Rt Hon Peter||Hamilton, Rt Hon Sir Archie|
|Browning, Mrs Angela||Hammond, Philip|
|Bruce, Ian (S Dorset)||Hawkins, Nick|
|Burns, Simon||Hayes, John|
|Butterfill, John||Heald, Oliver|
|Cash, William||Heathcoat—Amory, Rt Hon David|
|Chapman, Sir Sydney||Hogg, Rt Hon Douglas|
|(Chipping Barnet)||Horam, John|
|Chope, Christopher||Howard, Rt Hon Michael|
|Clappison, James||Howarth, Gerald (Aldershot)|
|Clark, Rt Hon Alan (Kensington)||Jackson, Robert (Wantage)|
|Clark, Dr Michael (Rayleigh)||Jenkin, Bernard|
|Clifton-Brown, Geoffrey||Johnson Smith,|
|Collins, Tim||Rt Hon Sir Geoffrey|
|Colvin, Michael||Key, Robert|
|Curry, Rt Hon David||King, Rt Hon Tom (Bridgwater)|
|Davis, Rt Hon David (Haltemprice)||Kirkbride, Miss Julie|
|Day, Stephen||Laing, Mrs Eleanor|
|Dorrell, Rt Hon Stephen||Lait, Mrs Jacqui|
|Duncan, Alan||Lansley, Andrew|
|Duncan Smith, Iain||Leigh, Edward|
|Emery, Rt Hon Sir Peter||Letwin, Oliver|
|Evans, Nigel||Lewis, Dr Julian (New Forest E)|
|Faber, David||Lilley, Rt Hon Peter|
|Fabricant, Michael||Lloyd, Rt Hon Sir Peter (Fareham)|
|Fallon, Michael||Loughton, Tim|
|Flight, Howard||Luff, Peter|
|Forth, Rt Hon Eric||Lyell, Rt Hon Sir Nicholas|
|MacGregor, Rt Hon John||Spring, Richard|
|McIntosh, Miss Anne||Stanley, Rt Hon Sir John|
|Maclean, Rt Hon David||Steen, Anthony|
|McLoughlin, Patrick||Streeter, Gary|
|Madel, Sir David||Swayne, Desmond|
|Malins, Humfrey||Syms, Robert|
|Maples, John||Tapsell, Sir Peter|
|Maude, Rt Hon Francis||Taylor, Ian (Esher & Walton)|
|Mawhinney, Rt Hon Sir Brian||Taylor, Sir Teddy|
|May, Mrs Theresa||Townend, John|
|Moss, Malcolm||Tredinnick, David|
|Nicholls, Patrick||Trend, Michael|
|Norman, Archie||Tyrie, Andrew|
|Page, Richard||Walter, Robert|
|Paice, James||Wardle, Charles|
|Paterson, Owen||Waterson, Nigel|
|Pickles, Eric||Wells, Bowen|
|Prior, David||Whitney, Sir Raymond|
|Randall, John||Whittingdale, John|
|Redwood, Rt Hon John||Widdecombe, Rt Hon Miss Ann|
|Robathan, Andrew||Wilkinson, John|
|Robertson, Laurence (Tewk'b'ry)||Willetts, David|
|Roe, Mrs Marion (Broxbourne)||Wilshire, David|
|Rowe, Andrew (Faversham)||Winterton, Mrs Ann (Congleton)|
|Ruffley, David||Winterton, Nicholas (Macclesfield)|
|St Aubyn, Nick||Woodward, Shaun|
|Sayeed, Jonathan||Yeo, Tim|
|Shephard, Rt Hon Mrs Gillian||Young, Rt Hon Sir George|
|Soames, Nicholas||Tellers for the Ayes:|
|Spelman, Mrs Caroline||Mr. John M. Taylor and|
|Spicer, Sir Michael||Mr. James Cran.|
|Abbott, Ms Diane||Campbell, Menzies (NE Fife)|
|Ainger, Nick||Campbell, Ronnie (Blyth V)|
|Alexander, Douglas||Campbell-Savours, Dale|
|Allen, Graham||Cann, Jamie|
|Anderson, Donald (Swansea E)||Caton, Martin|
|Anderson, Janet (Rossendale)||Cawsey, Ian|
|Armstrong, Ms Hilary||Chapman, Ben (WirralS)|
|Ashton, Joe||Chisholm, Malcolm|
|Atkins, Charlotte||Clapham, Michael|
|Austin, John||Clark, Dr Lynda|
|Ballard, Mrs Jackie||(Edinburgh Pentlands)|
|Barnes, Harry||Clark, Paul (Gillingham)|
|Battle, John||Clarke, Charles (Norwich S)|
|Beard, Nigel||Clarke, Eric (Midlothian)|
|Beckett, Rt Hon Mrs Margaret||Clarke, Tony (Northampton S)|
|Beith, Rt Hon A J||Clelland, David|
|Bell, Martin (Tatton)||Clwyd, Ann|
|Benn, Rt Hon Tony||Coaker, Vernon|
|Bennett, Andrew F||Coffey, Ms Ann|
|Benton, Joe||Coleman, Iain|
|Bermingham, Gerald||Colman, Tony|
|Betts, Clive||Connarty, Michael|
|Blears, Ms Hazel||Cook, Frank (Stockton N)|
|Blizzard, Bob||Corbett, Robin|
|Boateng, Paul||Corbyn, Jeremy|
|Borrow, David||Cotter, Brian|
|Bradley, Keith (Withington)||Cousins, Jim|
|Bradley, Peter (The Wrekin)||Cox, Tom|
|Brake, Tom||Cranston, Ross|
|Breed, Colin||Cryer, Mrs Ann (Keighley)|
|Brown, Rt Hon Nick (Newcastle E)||Cryer, John (Homchurch)|
|Brown, Russell (Dumfries)||Cummings, John|
|Browne, Desmond||Cunningham, Jim (Cov'try S)|
|Buck, Ms Karen||Dalyell, Tam|
|Burden, Richard||Darling, Rt Hon Alistair|
|Burnett, John||Darvill, Keith|
|Burstow, Paul||Davey, Edward (Kingston)|
|Byers, Stephen||Davey, Valerie (Bristol W)|
|Cable, Dr Vincent||Davidson, Ian|
|Caborn, Richard||Davis, Terry (B'ham Hodge H)|
|Campbell, Alan (Tynemouth)||Dawson, Hilton|
|Campbell, Mrs Anne (C'bridge)||Dean, Mrs Janet|
|Denham, John||Jones, Barry (Alyn & Deeside)|
|Dewar, Rt Hon Donald||Jones, Mrs Fiona (Newark)|
|Dismore, Andrew||Jones, Helen (Warrington N)|
|Dobbin, Jim||Jones, Ms Jenny|
|Dobson, Rt Hon Frank||(Wolverh'ton SW)|
|Donohoe, Brian H||Jones, Dr Lynne (Selly Oak)|
|Doran, Frank||Jones, Martyn (Clwyd S)|
|Dowd, Jim||Keeble, Ms Sally|
|Drew, David||Keen, Ann (Brentford & Isleworth)|
|Drown, Ms Julia||Kemp, Fraser|
|Dunwoody, Mrs Gwyneth||Kennedy, Charles (Ross Skye)|
|Eagle, Angela (Wallasey)||Kennedy, Jane (Wavertree)|
|Eagle, Maria (L'pool Garston)||Kidney, David|
|Edwards, Huw||Kilfoyle, Peter|
|Ellman, Mrs Louise||King, Andy (Rugby & Kenilworth)|
|Ennis, Jeff||King, Ms Oona (Bethnal Green)|
|Fatchett, Derek||Kumar, Dr Ashok|
|Fearn, Ronnie||Ladyman, Dr Stephen|
|Field, Rt Hon Frank||Lawrence, Ms Jackie|
|Fisher, Mark||Lepper, David|
|Fitzsimons, Lorna||Leslie, Christopher|
|Flint, Caroline||Levitt, Tom|
|Flynn, Paul||Lewis, Ivan (Bury S)|
|Foster, Rt Hon Derek||Livingstone, Ken|
|Foster, Don (Bath)||Llwyd, Elfyn|
|Foster, Michael J (Worcester)||Lock, David|
|Foulkes, George||McAllion, John|
|Fyfe, Maria||McAvoy, Thomas|
|Gapes, Mike||McCafferty, Ms Chris|
|Gardiner, Barry||McCartney, Ian (Makerfield)|
|Gerrard, Neil||McDonagh, Siobhain|
|Gibson, Dr Ian||McDonnell, John|
|Gilroy, Mrs Linda||McFall, John|
|Godman, Norman A||McGuire, Mrs Anne|
|Godsiff, Roger||Mackinlay, Andrew|
|Goggins, Paul||Maclennan, Rt Hon Robert|
|Golding, Mrs Llin||McNamara, Kevin|
|Gordon, Mrs Eileen||McNulty, Tony|
|Gorrie, Donald||MacShane, Denis|
|Grant, Bernie||Mactaggart, Fiona|
|Griffiths, Nigel (Edinburgh S)||McWalter, Tony|
|Griffiths, Win (Bridgend)||McWilliam, John|
|Grogan, John||Mahon, Mrs Alice|
|Hain, Peter||Mallaber, Judy|
|Hall, Mike (Weaver Vale)||Mandelson, Peter|
|Hall, Patrick (Bedford)||Marsden, Gordon (Blackpool S)|
|Hamilton, Fabian (Leeds NE)||Marsden, Paul (Shrewsbury)|
|Hancock, Mike||Marshall, Jim (Leicester S)|
|Hanson, David||Marshall-Andrews, Robert|
|Harvey, Nick||Martlew, Eric|
|Heal, Mrs Sylvia||Maxton, John|
|Healey, John||Meacher, Rt Hon Michael|
|Heath, David (Somerton & Frome)||Meale, Alan|
|Henderson, Doug (Newcastle N)||Merron, Gillian|
|Hepburn, Stephen||Michael, Alun|
|Hesford, Stephen||Michie, Bill (Shef'ld Heeley)|
|Hill, Keith||Milburn, Alan|
|Hinchliffe, David||Miller, Andrew|
|Hoey, Kate||Mitchell, Austin|
|Home Robertson, John||Moffatt, Laura|
|Hoon, Geoffrey||Moore, Michael|
|Hopkins, Kelvin||Moran, Ms Margaret|
|Howarth, George (Knowsley N)||Morgan, Rhodri (Cardiff W)|
|Howells, Dr Kim||Morley, Elliot|
|Hughes, Ms Beverley (Stretford)||Morris, Ms Estelle (B'ham Yardley)|
|Hughes, Kevin (Doncaster N)||Mudie, George|
|Humble, Mrs Joan||Mullin, Chris|
|Hurst, Alan||Murphy, Denis (Wansbeck)|
|Hutton, John||Murphy, Jim (Eastwood)|
|Iddon, Dr Brian||Norris, Dan|
|Illsley, Eric||O'Brien, Bill (Normanton)|
|Jackson, Helen (Hillsborough)||O'Brien, Mike (N Warks)|
|Jenkins, Brian||O'Hara, Eddie|
|Johnson, Alan (Hull W& Hessle)||O'Neill, Martin|
|Johnson, Miss Melanie||Öpik, Lembit|
|(Welwyn Hatfield)||Palmer, Dr Nick|
|Pearson, Ian||Stevenson, George|
|Pendry, Tom||Stewart, David (Inverness E)|
|Perham, Ms Linda||Stinchcombe, Paul|
|Pickthall, Colin||Stoate, Dr Howard|
|Pike, Peter L||Stott, Roger|
|Pollard, Kerry||Strang, Rt Hon Dr Gavin|
|Pond, Chris||Straw, Rt Hon Jack|
|Pope, Greg||Stringer, Graham|
|Powell, Sir Raymond||Stuart, Ms Gisela|
|Prentice, Ms Bridget (Lewisham E)||Stunell, Andrew|
|Prentice, Gordon (Pendle)||Sutcliffe, Gerry|
|Purchase, Ken||Taylor, Rt Hon Mrs Ann|
|Quin, Ms Joyce||(Dewsbury)|
|Radice, Giles||Taylor, Ms Dari (Stockton S)|
|Rammell, Bill||Taylor, David (NW Leics)|
|Rapson, Syd||Thomas, Gareth (Clwyd W)|
|Raynsford, Nick||Thomas, Gareth R (Harrow W)|
|Reed, Andrew (Loughborough)||Timms, Stephen|
|Rendel, David||Tipping, Paddy|
|Robertson, Rt Hon George||Todd, Mark|
|(Hamilton S)||Tonge, Dr Jenny|
|Roche, Mrs Barbara||Touhig, Don|
|Rooney, Terry||Trickett, Jon|
|Ross, Ernie (Dundee W)||Turner, Dennis (Wolverh'ton SE)|
|Rowlands, Ted||Turner, Dr Desmond (Kemptown)|
|Roy Frank||Twigg, Derek (Halton)|
|Ruane, Chris||Twigg, Stephen (Enfield)|
|Ruddock, Ms Joan||Tyler, Paul|
|Russell, Bob (Colchester)||Vis, Dr Rudi|
|Russell, Ms Christine (Chester)||Walley, Ms Joan|
|Salter, Martin||Ward, Ms Claire|
|Sanders, Adrian||Wareing, Robert N|
|Savidge, Malcolm||Watts, David|
|Sawford, Phil||Webb, Steve|
|Sedgemore, Brian||White, Brian|
|Shaw, Jonathan||Whitehead, Dr Alan|
|Sheerman, Barry||Wicks, Malcolm|
|Sheldon, Rt Hon Robert||Wigley, Rt Hon Dafydd|
|Shipley, Ms Debra||Williams, Alan W (E Carmarthen)|
|Short, Rt Hon Clare||Williams, Mrs Betty (Conwy)|
|Simpson, Alan (Nottingham S)||Wills, Michael|
|Singh, Marsha||Wilson, Brian|
|Skinner, Dennis||Winnick, David|
|Smith, Rt Hon Andrew (Oxford E)||Winterton, Ms Rosie (Doncaster C)|
|Smith, Angela (Basildon)||Wise, Audrey|
|Smith, Rt Hon Chris (Islington S)||Woolas, Phil|
|Smith, Miss Geraldine||Worthington, Tony|
|(Morecambe & Lunesdale)||Wright, Anthony D (Gt Yarmouth)|
|Smith, Jacqui (Redditch)||Wright, Dr Tony (Cannock)|
|Smith, John (Glamorgan)||Wyatt, Derek|
|Spellar, John||Tellers for the Noes:|
|Squire, Ms Rachel||Mr. David Jamieson and Mr. Robert Ainsworth.|
|Starkey, Dr Phyllis|
§ Question accordingly negatived.
§ Main Question put forthwith, pursuant to Standing Order No. 62 (Amendment on Second or Third Reading):—
§ The House divided: Ayes 332, Noes 146.866
|Division No. 172]||[10.13 pm|
|Abbott, Ms Diane||Austin, John|
|Ainger, Nick||Ballard, Mrs Jackie|
|Alexander, Douglas||Barnes, Harry|
|Allen, Graham||Battle, John|
|Anderson, Donald (Swansea E)||Beard, Nigel|
|Beckett, Rt Hon Mrs Margaret|
|Anderson, Janet (Rossendale)||Beith, Rt Hon A J|
|Armstrong, Ms Hilary||Bell, Martin (Tatton)|
|Ashton, Joe||Benn, Rt Hon Tony|
|Atkins, Charlotte||Bennett, Andrew F|
|Benton, Joe||Eagle, Maria (L'pool Garston)|
|Bermingham, Gerald||Edwards, Huw|
|Betts, Clive||Ellman, Mrs Louise|
|Blears, Ms Hazel||Ennis, Jeff|
|Blizzard, Bob||Fatchett, Derek|
|Boateng, Paul||Fearn, Ronnie|
|Borrow, David||Field, Rt Hon Frank|
|Bradley, Keith (Withington)||Fisher, Mark|
|Bradley, Peter (The Wrekin)||Fitzsimons, Lorna|
|Brake, Tom||Flint, Caroline|
|Breed, Colin||Flynn, Paul|
|Brown, Rt Hon Nick (Newcastle E)||Foster, Rt Hon Derek|
|Brown, Russell (Dumfries)||Foster, Don (Bath)|
|Browne, Desmond||Foster, Michael J (Worcester)|
|Buck, Ms Karen||Foulkes, George|
|Burden, Richard||Fyfe, Maria|
|Burnett, John||Gapes, Mike|
|Burstow, Paul||Gardiner, Barry|
|Byers, Stephen||Gerrard, Neil|
|Cable, Dr Vincent||Gibson, Dr Ian|
|Caborn, Richard||Gilroy, Mrs Linda|
|Campbell, Alan (Tynemouth)||Godman, Norman A|
|Campbell, Mrs Anne (C'bridge)||Godsiff, Roger|
|Campbell, Menzies (NE Fife)||Goggins, Paul|
|Campbell, Ronnie (Blyth V)||Golding, Mrs Llin|
|Campbell—Savours, Dale||Gordon, Mrs Eileen|
|Cann, Jamie||Gorrie, Donald|
|Caton, Martin||Grant, Bernie|
|Cawsey, Ian||Griffiths, Nigel (Edinburgh S)|
|Chapman, Ben (Wirral S)||Griffiths, Win (Bridgend)|
|Chisholm, Malcolm||Grogan, John|
|Clapham, Michael||Hain, Peter|
|Clark, Dr Lynda||Hall, Mike (Weaver Vale)|
|(Edinburgh Pentlands)||Hall, Patrick (Bedford)|
|Clark, Paul (Gillingham)||Hamilton, Fabian (Leeds NE)|
|Clarke, Charles (Norwich S)||Hancock, Mike|
|Clarke, Eric (Midlothian)||Hanson, David|
|Clarke, Tony (Northampton S)||Harvey, Nick|
|Clelland, David||Heal, Mrs Sylvia|
|Clwyd, Ann||Healey, John|
|Coaker, Vernon||Heath, David (Somerton & Frome)|
|Coffey, Ms Ann||Henderson, Doug (Newcastle N)|
|Coleman, Iain||Hepburn, Stephen|
|Colman, Tony||Hesford, Stephen|
|Connarty, Michael||Hill, Keith|
|Cook, Frank (Stockton N)||Hinchliffe, David|
|Corbett, Robin||Hoey, Kate|
|Corbyn, Jeremy||Home Robertson, John|
|Cotter, Brian||Hoon, Geoffrey|
|Cousins, Jim||Hopkins, Kelvin|
|Cox, Tom||Howarth, George (Knowsley N)|
|Cranston, Ross||Howells, Dr Kim|
|Cryer, Mrs Ann (Keighley)||Hughes, Ms Beverley (Stretford)|
|Cryer, John (Hornchurch)||Hughes, Kevin (Doncaster N)|
|Cummings, John||Humble, Mrs Joan|
|Cunningham, Jim (Cov'try S)||Hurst, Alan|
|Dalyell, Tam||Hutton, John|
|Darling, Rt Hon Alistair||Iddon, Dr Brian|
|Darvill, Keith||Illsley, Eric|
|Davey, Edward (Kingston)||Jackson, Helen (Hillsborough)|
|Davey, Valerie (Bristol W)||Jenkins, Brian|
|Davidson, Ian||Johnson, Alan (Hull W& Hessle)|
|Davis, Terry (B'ham Hodge H)||Johnson, Miss Melanie|
|Dawson, Hilton||(Welwyn Hatfield)|
|Dean, Mrs Janet||Jones, Barry (Alyn & Deeside)|
|Denham, John||Jones, Mrs Fiona (Newark)|
|Dewar, Rt Hon Donald||Jones, Helen (Warrington N)|
|Dismore, Andrew||Jones, Ms Jenny|
|Dobbin, Jim||(Wolverh'ton SW)|
|Dobson, Rt Hon Frank||Jones, Martyn (Clwyd S)|
|Donohoe, Brian H||Keeble, Ms Sally|
|Doran, Frank||Keen, Ann (Brentford & Isleworth)|
|Dowd, Jim||Kemp, Fraser|
|Drew, David||Kennedy, Charles (Ross Skye)|
|Drown, Ms Julia||Kennedy, Jane (Wavertree)|
|Eagle, Angela (Wallasey)||Kidney, David|
|Kilfoyle, Peter||Radice, Giles|
|King, Andy (Rugby & Kenilworth)||Rammell, Bill|
|King, Ms Oona (Bethnal Green)||Rapson, Syd|
|Kumar, Dr Ashok||Raynsford, Nick|
|Ladyman, Dr Stephen||Reed, Andrew (Loughborough)|
|Lawrence, Ms Jackie||Rendel, David|
|Lepper, David||Robertson, Rt Hon George|
|Leslie, Christopher||(Hamilton S)|
|Levitt, Tom||Roche, Mrs Barbara|
|Lewis, Ivan (Bury S)||Rooney, Terry|
|Livingstone, Ken||Ross, Ernie (Dundee W)|
|Llwyd, Elfyn||Rowlands, Ted|
|Lock, David||Roy, Frank|
|McAllion, John||Ruane, Chris|
|McAvoy, Thomas||Ruddock, Ms Joan|
|McCafferty, Ms Chris||Russell, Bob (Colchester)|
|McCartney, Ian (Makerfield)||Russell, Ms Christine (Chester)|
|McDonagh, Siobhain||Salter, Martin|
|McDonnell, John||Sanders, Adrian|
|McFall, John||Savidge, Malcolm|
|McGuire, Mrs Anne||Sawford, Phil|
|Mackinlay, Andrew||Sedgemore, Brian|
|Maclennan, Rt Hon Robert||Shaw, Jonathan|
|McNamara, Kevin||Sheerman, Barry|
|McNulty, Tony||Shipley, Ms Debra|
|MacShane, Denis||Short, Rt Hon Clare|
|Mactaggart, Fiona||Simpson, Alan (Nottingham S)|
|McWalter, Tony||Singh, Marsha|
|McWilliam, John||Skinner, Dennis|
|Mahon, Mrs Alice||Smith, Rt Hon Andrew (Oxford E)|
|Mallaber, Judy||Smith, Angela (Basildon)|
|Mandelson, Peter||Smith, Rt Hon Chris (Islington S)|
|Marsden, Gordon (Blackpool S)||Smith, Miss Geraldine|
|Marsden, Paul (Shrewsbury)||(Morecambe & Lunesdale)|
|Marshall, Jim (Leicester S)||Smith, Jacqui (Redditch)|
|Marshall-Andrews, Robert||Smith, John (Glamorgan)|
|Martlew, Eric||Soley, Clive|
|Maxton, John||Spellar, John|
|Meacher, Rt Hon Michael||Squire, Ms Rachel|
|Meale, Alan||Starkey, Dr Phyllis|
|Merron, Gillian||Stevenson, George|
|Michael, Alun||Stewart, David (Inverness E)|
|Michie, Bill (Shef'ld Heeley)||Stinchcombe, Paul|
|Milburn, Alan||Stoate, Dr Howard|
|Miller, Andrew||Stott, Roger|
|Mitchell, Austin||Strang, Rt Hon Dr Gavin|
|Moffatt, Laura||Straw, Rt Hon Jack|
|Moore, Michael||Stringer, Graham|
|Moran, Ms Margaret||Stuart, Ms Gisela|
|Morgan, Rhodri (Cardiff W)||Stunell, Andrew|
|Morley, Elliot||Sutcliffe, Gerry|
|Morris, Ms Estelle (B'ham Yardley)||Taylor, Rt Hon Mrs Ann|
|Mullin, Chris||Taylor, Ms Dari (Stockton S)|
|Murphy, Denis (Wansbeck)||Taylor, David (NW Leics)|
|Murphy, Jim (Eastwood)||Thomas, Gareth (Clwyd W)|
|Norris, Dan||Thomas, Gareth R (Harrow W)|
|O'Brien, Bill (Normanton)||Timms, Stephen|
|O'Brien, Mike (N Warks)||Tipping, Paddy|
|O'Hara, Eddie||Todd, Mark|
|O'Neill, Martin||Tonge, Dr Jenny|
|Öpik, Lembit||Touhig, Don|
|Palmer, Dr Nick||Trickett, Jon|
|Pearson, Ian||Turner, Dennis (Wolverh'ton SE)|
|Pendry, Tom||Turner, Dr Desmond (Kemptown)|
|Perham, Ms Linda||Twigg, Derek (Halton)|
|Pickthall, Colin||Twigg, Stephen (Enfield)|
|Pike, Peter L||Tyler, Paul|
|Pollard, Kerry||Vaz, Keith|
|Pond, Chris||Vis, Dr Rudi|
|Pope, Greg||Walley, Ms Joan|
|Powell, Sir Raymond||Ward, Ms Claire|
|Prentice, Ms Bridget (Lewisham E)||Wareing, Robert N|
|Prentice, Gordon (Pendle)||Watts, David|
|Purchase, Ken||Webb, Steve|
|Quin, Ms Joyce||White, Brian|
|Whitehead, Dr Alan||Wise, Audrey|
|Wicks, Malcolm||Woolas, Phil|
|Wigley, Rt Hon Dafydd||Worthington, Tony|
|Williams, Alan W (E Carmarthen)||Wright, Anthony D (Gt Yarmouth)|
|Wright, Dr Tony (Cannock)|
|Williams, Mrs Betty (Conwy)||Wyatt, Derek|
|Wilson, Brian||Tellers for the Ayes:|
|Winnick, David||Mr. David Jamieson and Mr. Robert Ainsworth.|
|Winterton, Ms Rosie (Doncaster C)|
|Ainsworth, Peter (E Surrey)||Hogg, Rt Hon Douglas|
|Amess, David||Horam, John|
|Ancram, Rt Hon Michael||Howard, Rt Hon Michael|
|Arbuthnot, James||Howarth, Gerald (Aldershot)|
|Atkinson, David (Bour'mth E)||Jackson, Robert (Wantage)|
|Atkinson, Peter (Hexham)||Jenkin, Bernard|
|Baldry, Tony||Johnson Smith,|
|Bercow, John||Rt Hon Sir Geoffrey|
|Beresford, Sir Paul||Key, Robert|
|Blunt, Crispin||King, Rt Hon Tom (Bridgwater)|
|Boswell, Tim||Kirkbride, Miss Julie|
|Bottomley, Peter (Worthing W)||Laing, Mrs Eleanor|
|Bottomley, Rt Hon Mrs Virginia||Lait, Mrs Jacqui|
|Brady, Graham||Lansley, Andrew|
|Brazier, Julian||Leigh, Edward|
|Brooke, Rt Hon Peter||Letwin, Oliver|
|Browning, Mrs Angela||Lewis, Dr Julian (New Forest E)|
|Bruce, Ian (S Dorset)||Lilley, Rt Hon Peter|
|Burns, Simon||Lloyd, Rt Hon Sir Peter (Fareham)|
|Butterfill, John||Loughton, Tim|
|Cash, William||Luff, Peter|
|Chapman, Sir Sydney||Lyell, Rt Hon Sir Nicholas|
|(Chipping Barnet)||MacGregor, Rt Hon John|
|Chope, Christopher||McIntosh, Miss Anne|
|Clappison, James||MacKay, Andrew|
|Clark, Rt Hon Alan (Kensington)||Maclean, Rt Hon David|
|Clark, Dr Michael (Rayleigh)||McLoughlin, Patrick|
|Clifton-Brown, Geoffrey||Madel, Sir David|
|Collins, Tim||Malins, Humfrey|
|Colvin, Michael||Maples, John|
|Curry, Rt Hon David||Maude, Rt Hon Francis|
|Davis, Rt Hon David (Haltemprice)||Mawhinney, Rt Hon Sir Brian|
|Day, Stephen||May, Mrs Theresa|
|Dorrell, Rt Hon Stephen||Moss, Malcolm|
|Duncan, Alan||Nicholls, Patrick|
|Duncan Smith, Iain||Norman, Archie|
|Emery, Rt Hon Sir Peter||Page, Richard|
|Evans, Nigel||Paice, James|
|Faber, David||Paterson, Owen|
|Fabricant, Michael||Pickles, Eric|
|Fallon, Michael||Prior, David|
|Flight, Howard||Randall, John|
|Forth, Rt Hon Eric||Redwood, Rt Hon John|
|Fowler, Rt Hon Sir Norman||Robathan, Andrew|
|Fraser, Christopher||Robertson, Laurence (Tewk'b'ry)|
|Gale, Roger||Roe, Mrs Marion (Broxbourne)|
|Garnier, Edward||Rowe, Andrew (Faversham)|
|Gibb, Nick||Ruffley, David|
|Gill, Christopher||St Aubyn, Nick|
|Gillan, Mrs Cheryl||Sayeed, Jonathan|
|Goodlad, Rt Hon Sir Alastair||Shephard, Rt Hon Mrs Gillian|
|Gorman, Mrs Teresa||Shepherd, Richard|
|Gray, James||Simpson, Keith (Mid-Norfolk)|
|Green, Damian||Soames, Nicholas|
|Greenway, John||Spelman, Mrs Caroline|
|Grieve, Dominic||Spicer, Sir Michael|
|Gummer, Rt Hon John||Spring, Richard|
|Hague, Rt Hon William||Stanley, Rt Hon Sir John|
|Hamilton, Rt Hon Sir Archie||Steen, Anthony|
|Hammond, Philip||Streeter, Gary|
|Hawkins, Nick||Swayne, Desmond|
|Hayes, John||Syms, Robert|
|Heald, Oliver||Tapsell, Sir Peter|
|Heathcoat-Amory, Rt Hon David||Taylor, Ian (Esher & Walton)|
|Taylor, Sir Teddy||Wilkinson, John|
|Townend, John||Willetts, David|
|Tredinnick, David||Wilshire, David|
|Trend, Michael||Winterton, Mrs Ann (Congleton)|
|Tyrie, Andrew||Winterton, Nicholas (Macclesfield)|
|Walter, Robert||Woodward, Shaun|
|Wardle, Charles||Yeo, Tim|
|Waterson, Nigel||Young, Rt Hon Sir George|
|Whitney, Sir Raymond||Tellers for the Noes:|
|Whittingdale, John||Mr. John M. Taylor and Mr. James Cran.|
|Widdecombe, Rt Hon Miss Ann|
§ Question accordingly agreed to.
§ Bill read a Second time.
Motion made, and Question put forthwith, pursuant to Standing Order No. 63 (Committal of Bills),
That the Bill be committed to a Committee of the whole House.—[Mr. Mike O'Brien.]
§ Question agreed to.
§ Committee tomorrow.