§ Mr. GarnierI beg to move amendment No. 15, in page 3, line 7, at end insert
`setting out the nature and extent thereof in so far as arises from the nature of the case before the court'.
§ The Chairman of Ways and Means (Sir Alan Haselhurst)With this, it will be convenient to discuss the following amendments: No. 103, in page 3, line 7, at end insert—
'(2A) A court may not make a declaration of incompatibility unless it is necessary for the purpose of determining the matter before it.'.No. 16, in page 3, line 16, at end insert'setting out the nature and extent thereof in so far as arises from the nature of the case before the court'.
§ Mr. GarnierWe believe that clause 4 represents a collision point in the constitution. It does not merely represent a meeting between the supervisory code on human rights that we gain from the convention and the doctrine of parliamentary sovereignty; it represents a meeting between the powers of the courts and this place to instigate a parliamentary process of statutory change. Clause 4 empowers the courts—as defined in subsection (5)—to declare that primary legislation is incompatible with a convention right.
438 Clause 4 should be read in conjunction with clause 21, which defines primary legislation. According to that clause, "primary legislation" means any
public general Act…local and personal Act…private Act…Measure of the Church Assembly … Measure of the General Synod of the Church of England…Order in Council made under…the Northern Ireland Constitution Act 1973…Order in Council made in exercise of Her Majesty's Royal Prerogative…and includes an order or other instrument made under primary legislation to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation".Subordinate legislation is also defined in clause 21, and was referred to in an earlier debate.
§ Mr. Gerald HowarthMy hon. and learned Friend has listed the measures that would be caught by the description "primary legislation". Will he tell us whether the matter has been debated by the General Synod, whether its views have been sought and whether they have been referred to the House? Surely that is a material issue, as the new law will apply to the whole body of law passed by the General Synod of the established Church.
§ Mr. GarnierMy hon. Friend is right: that is a material question. Sadly, I do not know the answer, but other hon. Members who are past or present members of the General Synod may be able to help us.
§ Mr. John Gummer (Suffolk, Coastal)Will my hon. and learned Friend take this a stage further? Normally, matters pertaining to the Church of England that are to be debated in the House of Commons are brought before the Ecclesiastical Committee, for two reasons. First, the Committee is a joint Committee of both Houses; secondly, unlike the Synod, it contains not just members of the Church of England but members of other Churches, because it scrutinises legislation to see how it will affect other subjects of Her Majesty. Clearly, the Bill will have an effect on the Synod.
I am a member of the Ecclesiastical Committee, but I have not received a note about the matter. Perhaps my hon. and learned Friend can find out whether the Committee has been able to debate it, and to decide whether it is content with the implications for the Church of England.
§ Mr. GarnierI am grateful for my right hon. Friend's intervention. He has immense experience of the affairs of the Church of England, and I was interested to hear that, although he no longer belongs to that Church, he continues to take a close interest in it. I suspect that my right hon. Friend will know better than I whether, in one or other of its various forums, the Church has been able to express a view on clause 4. The Minister, too, may have better information than I.
We must consider clause 4 in conjunction not just with clause 21, which defines primary legislation, but with clause 5, which gives the Crown—and, subject to amendments that we may or may not debate later in Committee stage, others—the right to intervene in court proceedings. If those amendments are accepted—strictly speaking, they are not germane to this debate-and if other interveners are given rights under clause 5, the Church of England and other affected bodies, as well as the Crown, may well be entitled to take an interest in a clause 4 question. 439 When considering the effect of clause 4 we must also consider clauses 10, 11 and 12, especially clause 12 (3)(a) and (3)(b), because they deal with remedial action—broadly, what Parliament will do in the event of a declaration of incompatibility under clause 4. Clause 12(3) states:
A remedial order (or draft) laid before Parliament must be accompanied by a statement containing—The person making it would be the Minister. Paragraphs (a) and (b) are especially relevant when considering our amendments that deal with the beginning of the process—the making of a declaration by one of the courts that are listed in clause 4(5) in relation to primary legislation. We debated secondary legislation earlier, but we are now dealing with primary legislation.
- (a) an explanation of the incompatibility which the order seeks to remove, including particulars of the relevant declaration, finding or order; and
- (b) a statement of the reasons why the person making it (or proposing to make it) considers an order in those terms appropriate."
I spoke deliberately about a collision point on the constitution because the Strasbourg system is invasive. From time to time, the European Court of Human Rights determines that some aspect of national law or practice is incompatible with a provision in the convention. The way in which human rights are protected in a country that adheres to the convention is no longer exclusively a matter of national sovereignty. In addition, the convention system has not stood still, and has constantly been adapted to bring it into line with contemporary notions of human rights protection—for example, through the introduction of new protocols.
In some Strasbourg court judgments it has been said that the convention represents
the public order of Europethat it imposes objective obligations on the convention states for the protection of human rights in Europe and that the convention is evolving as Europe's constitutional Bill of Rights. Those are the words of the European Court judges, and they may ring alarm bells loudly for my right hon. and hon. Friends, and possibly in the massed ranks of Labour Members.The convention is no longer seen as an international treaty that creates reciprocal arrangements between contracting states. It is increasingly being interpreted in line with the object and purpose rule—I am sure that the Committee knows all about that—in the Vienna convention on the law of treaties which was entered into in 1969 as Europe's constitutional Bill of Rights.
As I said in an intervention, the jurisprudence of the European Court of Human Rights over the past 30 to 50 years has been entirely candid in seeing the convention as a growing Bill of Rights for Europe. In the corporal punishment case affecting this country, Tyrer v. the United Kingdom, in 1978, the court said that the convention was a living instrument and that it had to consider the standards of behaviour, morality and ethics that are accepted in contemporary European society, and not those that were applicable when the convention came into being in the early 1950s.
The line between judicial interpretation and judicial legislation may be increasingly breached. The amendments are intended to guard against that and to 440 prevent United Kingdom courts from going further than is warranted under our constitution. In view of the parliamentary arithmetic—a phrase which was used not long ago—there can be no doubt that the Bill will become an Act and that the convention, or at least those parts of it that are specified in the Bill, will be incorporated into British law. The amendments seek to limit the damage that we think may be done to our constitution if clause 4 is unamended. It has been said that the Bill would wreck our constitution, but I would not go that far.
In the debate on the Queen's Speech after the election, I said that I had no religious or principled objection to the introduction of the European convention on human rights into domestic British law. However, I remain worried that the procedures that we are adopting could damage the constitution, perhaps unintentionally. That underlines my argument on the amendments. I do not accuse the Government, at least on this occasion, of deliberately setting out to destroy the constitution, but we could make that charge stick on other occasions and we shall have an opportunity to do that.
As the Bill, amended or unamended, will become law, we must do all we can to ensure that the doctrine of the separation of powers, which underscores our constitution, is not put at risk. Our amendments are designed to protect the constitution and to prevent unwanted and perhaps unintended contests between Parliament and the courts. Why is that matter important and why are we determined to prevent the dangers that we expect would arise from an unamended clause?
The Minister does not always give me prizes for original thinking on political philosophy, and I do not think that he will give me a prize for suggesting that elected, accountable Members of Parliament, assembled in Parliament, are the proper persons to make the law, but that unelected, disinterested, unaccountable judges should interpret it. That is our system, and, under our constitution, the courts have no power to declare that an Act of Parliament is invalid.
The United States has an entirely different system. Under its system of judicial review, which is not to be confused with ours, federal judges—the constitutional judges in the Supreme Court—can strike down Acts of Congress if they believe that they contravene the United States constitution. We do not have that, and long may that position remain.
In an earlier debate, we briefly discussed secondary legislation. Because of the development of such legislation and the increasing use of regulation-making powers that are given to Ministers by statute—a matter which greatly concerns my hon. Friend the Member for Beaconsfield (Mr. Grieve)—the courts have felt able to develop the scope of judicial review of administrative action. In some cases, that has led to political criticism of the judiciary when it pronounced on matters of social or political controversy.
Sadly—or perhaps not sadly—hon. Members and the editorials of newspapers are not slow to criticise judges when they make pronouncements with which we disagree. That is what we are entitled to do. We touched on that matter in a debate on the Scotland Bill two or three weeks ago, when we discussed the appointment or removal of Scottish judges and sheriffs under the new Scottish parliamentary system.
441 One of the points that the hon. and learned Member for North-East Fife (Mr. Campbell) brought out was that a judge could be criticised, for example, for overly lenient sentencing and hounded by a group of politicians for doing so. One does not have to go very far back in English political history to know that there have been criticisms of our judges by members of the Labour party and of the trade union movement, who were concerned that English judges were producing laws that were contrary to those members' interests.
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You, Sir Alan, may remember the cries of, "Tory judges are doing the Government's work," in the 1980s. Although that was no doubt a sincere and well-intended criticism—or perhaps an ill-intended criticism—it was wrong-headed because they were not Tory judges, but wholly disinterested politically. None of their judgments was based on their political opinions; they were based on an interpretation of the law, which happened to have been enacted under a Tory Government. The confusion is between Tory laws passed by a Tory Government with a majority in the House of Commons and the interpretation of those Tory laws by disinterested judges.
Mr. Humfrey Matins (Woking)Does my hon. and learned Friend agree that the great strength of our constitution is the fact that the judges have been and remain politically disinterested and separate? That is why people have so much confidence in the judges, despite what one occasionally hears from the Labour Benches. They are politically disinterested, and they realise that their job is to administer the law, not to make it.
§ Mr. GarnierMy hon. Friend is entirely right. That is why our amendments are so important. They will remove any doubt that may rest in the minds of those who know less about it than they should that the judges who make the declarations of incompatibility are motivated by anything other than a desire properly to interpret the statute law that is in front of them.
This is not a new problem. The tension between the two lives that I lead—one in the law and one in Parliament—is often referred to. It has been referred to by far more eminent lawyers than are here tonight, and I include myself in that. Trade union legislation in the early 1980s caused such alarm among the Labour party. You may remember, Sir Alan, the steel strike of the early 1980s, which led to all sorts of industrial action and then secondary industrial action. Laws were passed by the Conservative Government that made secondary action unlawful. It resulted in the case of Duport Steels v. Sirs.
When that case arrived at the Judicial Committee of the House of Lords, Lord Diplock said this. I always like referring to cases in which Lord Diplock has contributed a judgment. He was a very intellectually rigorous man, but he was not without a sense of humour, as I am sure the Minister will appreciate. Lord Diplock was a keen follower of the foxhounds and had a horse called Circuit. When he was at the Bar and his clients rang up and asked, "Is Mr. Diplock available?" his clerk could legitimately say, "No. I'm afraid he is away on Circuit." I digress and I apologise for doing so.
442 I want to read just a small section of Lord Diplock's judgment in the Duport Steels case, because he well illustrates the points that inform my amendments:
at a time when more and more cases involving the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interpret them. When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution, it is Parliament's opinion on these matters that is paramount.Those words are as true today as they were when they were uttered.
§ Mr. LeighI think that my hon. and learned Friend can add to his point and make it even more powerful. As he knows, in that case, the House of Lords was striking down a judgment by Lord Denning in the Court of Appeal. Just as my hon. and learned Friend admires Lord Diplock, I admired Lord Denning. From my political viewpoint, I particularly admired a remark that he made in the Court of Appeal judgment in that case. He was dealing with that trade union dispute and said that it could have a
disastrous effect on the economy and well-being of the country".As much as Conservative Members may admire what he said in those circumstances, the House of Lords acted properly. It struck down Lord Denning. He should not have been making a political point of that nature. That is the powerful point that Lord Diplock was making in that case.
§ Mr. GarnierThat is exactly right. That is why the Court of Appeal was overturned in that case. Both the point that my hon. Friend makes and the point that I am developing in support of our amendments show that, where one is dealing with the introduction of convention rights into domestic law, and where one is introducing something into our system of law, which traditionally has been concerned more with remedies and duties than rights, the courts are sometimes tempted to introduce the sort of language that the Court of Appeal heard from Lord Denning, which is impermissible under our constitution.
Parliament—this House and the other place—should have the first word and the last. I am positive that A. V. Dicey put it more elegantly than I have, but where we are putting the broad brush—I think that, as I am dealing with European matters, I am allowed to descend into purple prose—of the European convention across the canvas of our constitution, we should endeavour to paint a coherent picture.
I hope that the Minister enjoyed that because I want to remind him of something that Lord Kingsland, the shadow Lord Chancellor, said in the other place on Second Reading of the Bill last November. It was a model speech, 443 if I may say so. It completely stripped bare the Lord Chancellor's arguments in favour of the Bill, and presented a thoroughly unmatched set of arguments. My noble Friend said that, if the Bill, became law—I paraphrase at the moment—it would be a defining moment in the life of our constitution, and as important in the history of our constitution as, for example, the Parliament Acts of 1911 and 1949. He said that all those matters
lie at the heart of the doctrine of the separation of the powers in our constitution, which has been the hallmark of our liberties throughout the centuries.We should not scoff at the protection of our liberties under the constitution. Lord Kingsland suggested that the Lord Chancellor had gone for a hybrid of the New Zealand and Canadian models and thathe is not striking down the previous statute but is giving judges the power to make a declaration of incompatibility. He then gives Parliament the option to legislate not by full primary statute but by order in council.I believe that that solution is constitutionally unacceptable for two reasons which I shall try to explain … In the Bill the courts of this country are not bound by the decisions of the court in Strasbourg.He said that it is to havepersuasive but not obligatory effect. When a court in this country makes a declaration of incompatibility, it might be making a declaration which is not an accurate photograph of the law of the convention. Indeed, that option is expressly incorporated in the Bill. To the extent that a declaration of incompatibility does not reflect the true construction of the jurisprudence of the convention, the judges will be making a declaration about the making of new law, judge-made law. Indeed, they will be doing more than that. They will be initiating a legislative procedure in Parliament.If that is what the clause proposes, it will introduce something that we should be well aware of, and we should do something about it. Clause 4(2) says:If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.Amendment No. 15 proposes to add these words immediately afterwards:setting out the nature and extent thereof in so far as arises from the nature of the case before the courtso that, when the declaration of incompatibility is made by the court, the Government—who will have to introduce a remedial order—will know precisely why the court has found that the Act is incompatible with the convention rights.
§ Mr. GummerMy hon. and learned Friend says that it is important that the Government know that. May I suggest that it is more important that the people should know? This is an unusual mechanism—like him, I do not have too extreme a view of it—and some Labour Members appear to agree with my hon. and learned Friend about the change in the constitution. There are a lot of people outside who will be at least suspicious about the matter. Therefore, the Committee should accept nothing less if we want those people to accept the system.
§ Mr. GarnierMy right hon. Friend is right to pull me up. Of course it is the people who have the right to know. I was thinking, naively, that the Government actually took account of the interests of the people. I was mistaken, and I apologise for being such a silly billy. This Government 444 were described as "unusually tyrannical" in the other place by Lord Simon of Glaisdale—not a man given to hyperbole.
My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) was right to pull me up. We purport to represent the people in this place—I do not know what the Government think they are doing. They seem to pay precious little attention to what the people care about. [Interruption.] I will not be diverted by grumblings from the hon. Member for Slough (Fiona Mactaggart), who is not a noted constitutional lawyer as far as I am aware.
§ Fiona Mactaggart (Slough)rose—
§ The ChairmanOrder. The hon. Lady must not assume that she has the Floor until it has been conceded to her by the Member she is seeking to interrupt.
§ Fiona MactaggartI apologise, Sir Alan, for misreading the body language of the hon. and learned Member for Harborough (Mr. Garnier). The point that was being made before I attempted to intervene was about representing the people. I have never suggested to anyone that I am an eminent lawyer; I have never sought to play such a role. However—like the Labour party—I have listened to and represent the people of Slough, which is why we are implementing such a substantial and important change in the Bill.
§ Mr. GarnierI think that I may have been mistaken not to conceal my body language. After that intervention, I shall keep my body language to myself.
My noble Friend Lord Kingsland identified the constitutional danger posed by clause 4, which would allow judges to introduce a legislative initiative. I think that amendment No. 15 goes some way in dealing with the concerns expressed by my noble Friend, which are also felt by very many people in the United Kingdom.
When introducing a convention conferring rights—the interpretation of which has been subject to argument and debate in Strasbourg and in the domestic courts of nations that are amenable to the convention, and still no exactitude has been provided—into a system of law that has until now been concerned more with remedies and duties, it is vital that Parliament should tell, the courts what we expect of them.
On 3 November 1997, the Lord Chancellor said in the debate on the Bill's Second Reading:
the Bill is carefully drafted and designed to respect our traditional understanding of the separation of powers.That is undoubtedly a worthy sentiment. However, as the Lord Chancellor has also said that his legal aid reforms are designed to "increase access to justice", we should be very careful of sentiment emanating from that noble mouth.The Lord Chancellor said:
The design of the Bill is to give the courts as much space as possible to protect human rights, short of a power to set aside or ignore Acts of Parliament."—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1228.]We have tabled this group of amendments to restrict the space within which Parliament allows the courts to operate, not to inhibit the courts from protecting human 445 rights. We fear that, without the amendments, the courts will increasingly push at the boundaries between the judiciary and Parliament, which would so upset the pertaining balance.Under the Bill, the courts will take on a new role. Hon. Members must be careful before ceding our powers to initiate legislation to the courts. If we are to have clause 4 declarations, they must be explicit, capable of withstanding scrutiny and public explanation, and in such a form that they can sensibly inform the process that the Bill envisages in clause 12(3).
If we are to have remedial orders, they must work in concert with the final judicial wording of the declarations of incompatibility. To do otherwise would merely add to the tension that will come to exist between this place and the courts. Although it is important that there is a creative tension between them, it is vital that the Bill should not allow a destructive tension to build up.
I suggest that passing the amendments would relieve the constitution of a potential danger—one which would act to the detriment of our constituents.
§ Mr. GummerI shall not detain the Committee long, but I believe that the amendment is of considerable importance because of the need to explain to the public as a whole the effects of this new situation.
I am unhappy about the concept of rights; I happen to believe that we have obligations, and that in our obligations lie other people's rights—as a matter of fact, I do not think, philosophically, that created beings can have rights. It is a pity that we have not understood the distinction, which we have never before had in our laws. We have always seen that there is a matter of duties and obligations, and that has been the key to our handling of the sort of issues with which the European convention is concerned. However, because it is a European convention, it is heavily influenced by the works of Tom Paine and the French revolution, and papal reinterpretation of that in the latter part of the 19th century. One clearly sees that stretch of attitude in the way in which the convention is framed.
§ Mr. MaclennanWould it not be historically more accurate to acknowledge the debt owed to the works of Jesuit priests and writers such as Hugo Grotius, Vitoria and others in the long Catholic European tradition, going right back to the laws of nature, which recognised rights?
§ Mr. GummerIt would be possible to acknowledge that, but it would be contrary to the truth. I am sure that the right hon. Gentleman will acknowledge the fact that, until the end of the 19th century, the Catholic position was quite clear: rights were not possible for a created being; a created being had obligations, and those obligations conferred rights on others, because others were able to depend on his carrying out those obligations and to expect that he would do so.
The matter is not merely semantic, because the problem arises that the attitude towards rights that is so marked a result of the changes in the 19th century has affected Britain rather differently from the rest of Europe. As an enthusiastic supporter of our close connection with the rest of Europe, I believe that we can offer others some things where we are different and where our long history gives us a certain amount of experience that they do not 446 have. One of those aspects of our history is the long stability that we have enjoyed in this country, but that has not been the experience of many of our neighbours.
Part of that stability arises from the division of powers. Therefore, if we are going to, at the very least, narrow that division, it is important that, on the occasions when that happens, the reason is clear to the public. The public have respect for judges, but do not expect judges to make the law; they have no respect for Members of Parliament, but do expect Members of Parliament to make the law. That distinction is important. On this occasion, we are allowing judges to come closer to making the law than they do in any other circumstance. That is the crucial issue.
Having read the debates in another place, I should have thought that the Government would want to make sure that their promise there would be carried through. They said there that they wished to make this new excursion as compatible as possible with our historic separation of powers.
I hope that the Government will not feel that that there is any way an unpleasantness about the amendment or that it should be overruled merely because the Government have a majority. I should have thought that the Government would not find an amendment that asks that courts give a clear statement of why they find a measure incompatible with the European Convention on Human Rights one on which to divide the Committee. It seems to me that everyone could agree on the matter—not just so that the Minister would find it easier to frame amending legislation, but so that the public should be easier in their minds that the judges have acted properly and constitutionally within the framework laid down by Parliament. I hope that the Government will accept the amendment as a result of that first point.
Secondly—although less importantly, as the public are most at risk of feeling that the change is not one of which they are assured—I hope that the Government will see the amendment as their defence. As things happen to be, it is likely that this Government will be in power on the first occasion—probably within the next three or four years—on which the provision operates. If it takes place after that, this Government will not have to make a decision. Ministers will surely want to know, not least on that first occasion, precisely what this is all about; what the judges are getting at; how narrowly amending legislation can be drawn.
Let us imagine circumstances in which the Government managed to pass a measure that had been hard fought against as it went through the House. Let us imagine that the Opposition had tabled amendments pointing to the incompatibility of some measure that the Government were proposing. Let us think that, in a heated moment, the Government had said very clearly that the Opposition were wrong and that the measure was not contrary to the effects of the European Convention on Human Rights. Let us think that the debate continued along that line and that, in the end, the majority ruled and the Government got their way. In those circumstances, the Government would want to be quite sure that, if the judges struck down the measure, they had the best ground for being able to eat their words. They would like to be able to say to the Opposition, "Well, what you said was not generally true, although it appears that, in a particular case, there was some truth in it."
447 I do not want the Government to feel that they must overcompensate for what has been mistaken. In other words, if the courts struck down, or appeared to strike down, some decision of the House, the Government would want to make as small an alteration as is compatible. How could they do that unless they knew precisely why the courts had struck down the matter? I do not know why I am busy defending the Government—except that we shall inherit the matter thereafter. However, the Government need to be defended from a position in which they will have to make the remedy but will not know how widely that remedy will have to run.
That brings me to the third point. I want to defend not only the Government but all other hon. Members. The Minister is a very honourable Member, and will no doubt seek, if the task falls to him, to bring in as narrow a change as absolutely necessary. However, others will be less scrupulous, and will say to themselves, "We do not want to get mixed up with those courts any more, so let us go as far as it could be thought that the courts might expect us to, and get out of the problem in future." Unless we insist upon the detailed amendment, the Government could propose to amend the legislation far beyond what would be necessary if there were a more particular statement of what the courts were concerned about.
There are therefore three reasons why I believe it necessary for us to carry the amendment into law—the defence of the people so that they know where they are, the defence of the Government so that they know where they are, and the defence of the House, to ensure that its will is not gainsaid by one iota or scintilla more than is absolutely necessary to meet the obligations that the convention lays upon it.
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Those should be views commonly held on both sides of the Committee. I see nothing in them that could possibly be thought party political. However, my last point is party political. One of the problems with judges is that they share the human frailty of seeking always to move as far as their powers allow. We all tend that way. All assemblies move to become Parliaments; all Parliaments seek greater power; courts are rarely satisfied with the restrictions laid upon them. I believe it is necessary to ensure that our courts do not gain an appetite for what my hon. and learned Friend the Member for Harborough (Mr. Garnier) described as the attitudes of the European Courts of Human Rights and of Justice and of other courts in individual nations in the European Union and beyond.
That is why the amendment is necessary for the good of the courts, as well as for the good of the Government, the good of the people and the good of the House. I believe that the courts' natural appetite for the extension of their powers should be restrained, and the only one body that can so restrain them is the House. That is the nature of the separation of powers.
Therefore, the Committee owes it to the courts to be clear in the way that it legislates today and throughout the further stages of the Bill. We must be clear, and we can do that only if we insist that the courts be clear, for in their clarity will be their restriction. Because they have to say in detail what they find incompatible, they will not be 448 able to stretch their powers beyond the degree to which we—of necessity, if the Bill is passed—will have to increase them.
That is why I hope that the Committee will accept that the amendment is reasonable and would be for the good of many of Her Majesty's subjects.
§ Mr. MaclennanI am sorry to have to say that I did not find the speech by the right hon. Member for Suffolk, Coastal (Mr. Gummer) compelling in its history, its philosophy, its politics or its law. It finished with a rather curious, although not entirely frontal, attack on the judiciary, suggesting that they were institutionally engaged in self-aggrandisement.
That is a caricature of how our judiciary perform. It is evident that our judges are extremely careful not to trespass on the role of Parliament. Indeed, they made it plain before the Bill was introduced that, although they broadly favour the incorporation of the European Convention on Human Rights, they would prefer at this stage in the development of our constitutional thinking not to be given a power to strike down in a simple and straightforward way legislation that they consider incompatible.
The Bill represents a novel approach to the incorporation of a Bill of Rights, and its construction owes a great deal to the judicial restraint of the highest judges in the country—including Lord Bingham and many others—who publicly spoke in favour of incorporation and advised that they should not be empowered like the Supreme Court in the United States simply to strike down incompatible legislation. The attack on the judiciary by the right hon. Member for Suffolk, Coastal was very wide of the mark.
I do not see how the language of the amendments would do anything to achieve what they seem to be intended to achieve. They are not lapidary in their clarity; indeed, they could create a source of great argument and confusion. It would have been one thing if the amendments had stated simply that the declaration of incompatibility should be accompanied by reasons—one might then have been able to understand what was in the minds of those Conservative Members who tabled them—but they are couched in rather serpentine language.
Amendment No. 15 would insert the words
setting out the nature and extent thereof in so far as arises from the nature of the case before the court".Almost every phrase of that could give rise to argument—barrack-room lawyers would argue about whether the judges, in making a declaration of incompatibility, had conformed precisely with the terms suggested by amendments Nos. 15 and 16.It is clearly the case that a declaration of incompatibility would be a constitutionally solemn decision, which the courts would not take lightly or ill advisedly. I believe that the courts would take such a decision very rarely as, like Parliament, judges have, in developing common law, broadly assumed that it was the will of the British people that our obligations under the terms of the European Convention on Human Rights should be observed. It is a natural construction—an a priori view—that Parliament has not legislated inadvertently to breach the convention's provisions, so I believe that a declaration of incompatibility would be prayed in aid only rarely. To suggest that there is any 449 automaticity in the provision—that there is an automatic triggering of legislation as a result of the declaration of incompatibility—is to misrepresent the contents of the Bill.
§ Mr. LeighAs the right hon. Gentleman said, of course Parliament does not legislate knowingly to be incompatible with the convention, but the convention and the European Court move on and what might have been compatible in the past is no longer compatible. That is why there might be rather more cases coming before the European Court than he might imagine.
§ Mr. MaclennanWe shall see, but I doubt it. I do not doubt that cases will be brought before the European Court praying in aid the convention rights, but they will stem not from defective legislation or parliamentary activity, but more from the executive actions of public authorities.
The right hon. Member for Suffolk, Coastal implied that a declaration of incompatibility bordered on a legislative provision. That is a distortion of language. First, it is quite plain that the Bill provides a permissive power to make a declaration of incompatibility. The court is not required to make such a declaration. Clause 4(2) allows the court to make such a declaration. Secondly, such a declaration does not require the Government to introduce legislation under clause 10. That also is permissive. So to suggest that the Bill contains a trigger mechanism that could be fired and in some way diminish the role of the executive arm of government and the scrutiny of Parliament is to fail to appreciate the checks and balances that have been carefully written into a remarkable Bill.
The Bill is remarkable because it fulfils the need to provide a remedy quickly in order to avoid the injustices that would flow from a court finding an incompatibility with the European convention and the remedy depending on Strasbourg because of the difficulty of finding legislative time to introduce primary legislation to overturn the incompatible measure. The Bill has neatly tackled that problem, and in so doing has safeguarded the justice of our system without trespassing on parliamentary sovereignty.
§ Mr. GummerHas not the right hon. Gentleman now disproved his previous contention? He suggests that the reason for the particular arrangements under the Bill is to enable the remedy to be applied very quickly if a court declares a measure to be incompatible. Obviously, he expects that, if a court declares a Bill to be incompatible, there will be a speedy remedy. I suggested not that that gave the courts the ability to rule, but that it was adjacent to ruling, because it is likely that Parliament would find it almost impossible not to apply that remedy. Therefore, has not the right hon. Gentleman proved that what I said was strictly accurate?
§ Mr. MaclennanNo. The right hon. Gentleman has not made his case very effectively. It is quite plain that, if a court makes a formal declaration of incompatibility, it will do so advisedly because it considers the matter to be sufficiently important to trigger the mechanism if the executive arm of government and Parliament consider that it is appropriate to respond to it. It would make such a 450 declaration only if there were an issue of some importance that required remedy. Otherwise, it is not obliged to make a declaration—
§ Mr. GarnierI think that the right hon. Gentleman's body language suggested that I was being invited to intervene, and I am grateful to him for that.
The difficulty that the Bill presents is that the procedure begins in clause 19. That is where the Minister makes a statement of compatibility. A litigant might take a matter to court, and if the court agreed with him, it would then make a declaration under clause 4. Even before that, there is the potential for dispute between the Executive—whether within Parliament or without—and the court. The right hon. Gentleman has addressed many points, but not that one.
§ Mr. MaclennanThe hon. and learned Gentleman understood my body language and I understood his, but I confess that I did not understand the point that he was making. I am a little nonplussed by it and I apologise for my failure to comprehend.
I believe that the amendments were devised to make a political point—a constitutional point, which in itself is quite important. Those who want to amend the Bill do not want the right of Parliament to deliberate, in the manner to which we are accustomed, curtailed or changed by an act of the judiciary. That is an important issue that should be discussed. However, the language in the amendment can cause nothing but confusion. Therefore, I hope that it will be resisted.
§ Miss Anne McIntosh (Vale of York)I intend to do my level best to encourage my hon. and learned Friend the Member for Harborough (Mr. Garnier) to make an even more robust rejection of the proposal to incorporate the convention into UK law.
I am sure that the Minister will agree that we share some confusion—having both been active in another place—about the European Court of Human Rights and the European Court of Justice in Luxembourg. Even greater confusion is caused by the fact that, for part of the year, the European Court of Human Rights meets in the same place as the European Parliament. The public are greatly confused by that.
I vigorously support amendment No. 15. I am concerned about the impact that the convention, and particularly clause 4, will have on primary legislation. In view of the Bowman judgment, it is clear that, if the convention had already been incorporated into UK law, the courts would be seeking to repeal part of the Representation of the People Act. That is one of the questions that we should consider.
I regret the intrusiveness and invasiveness of clause 4, and the impact—particularly following the Bowman judgment—that the convention will have when we adopt it into our political, electoral and judicial systems. The Strasbourg system is definitely invasive, and new legislation will have to be deemed Strasbourg-proof before we can adopt it, or we will have a plethora of court 451 cases. Will the Government tell us what mechanism they envisage using to prepare future legislation in a Strasbourg-proof way?
§ Mr. HoonI can deal with that point now. The previous Government ensured for eight years or so that draft legislation was consistent with the terms of the convention. Clause 6 is also absolutely clear. Procedures are already in place, and they will be strengthened by the Bill's passage.
§ Miss McIntoshI am not sure that I am convinced by that answer, but I am grateful to the Minister.
What concerns me most about clause 4 is that courts will be able to determine in future that some aspects of national law are incompatible with the convention. I am sure that the Government—the listening Government, the people's Government, they tell us—will appreciate that that could occur in politically sensitive areas, such as prisons, immigration and administrative matters, including judicial review. They may regret their proposal to incorporate the convention in United Kingdom law in toto.
The amendment should be welcomed, because it would ensure that judges would say specifically why they believed any primary legislation to be incompatible with the European convention on human rights. The amendment would also give judges a clear indication that declarations of incompatibility should not be issued unless required to resolve a particular case before the court. I hope that the judge—I mean the Minister; I did not mean to elevate him to another Bench—will comment on that when he winds up.
I do not mean to denigrate the judiciary in any way, but a substantial period will be needed if it is to adapt to its new responsibilities under clause 4. Similar problems were experienced in 1973 when the treaty of Rome was introduced to the UK. Courts and practitioners applying European law for the first time needed a substantial period to be educated—for want of a better word—on the impact of the treaty on the interpretation of legislation.
I am delighted to say, Mr. Martin, that Scotland led the way in that regard, particularly through Professor J. D. B. Mitchell, of whom I had the great honour to be a student. We led the way because constitutional law courses in Scotland implemented a vigorous education for budding practitioners at an early stage. Present practitioners do not have that experience.
§ Miss McIntoshIt might be more appropriate to comment on that on some other occasion, as we have more pressing matters to discuss this evening. Perhaps the Minister would like to discuss it with me at greater length in one of the parliamentary bars, so that we do not take up the Committee's time.
I commend the amendment to the Committee, and hope that the Government might be minded to support it.
§ Mr. MalinsFirst, I declare an interest. I am a recorder of the Crown court and, for some years, I have been an 452 acting metropolitan stipendiary magistrate, so I have a great deal of judicial experience behind me. That has enabled me to realise that, when I sit judicially, it is my job to apply the law, whereas in this House it is our job to make the law. It is terribly important to understand and to maintain those differences.
When I spoke on Second Reading, I was vehement in my opposition to the principle of the Bill. I said that the danger was that it would effectively give the judges of this country powers to make law, whereas their job is to interpret it.
The right hon.Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) was a little unkind to my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) when he accused him of launching an attack on the judiciary. My right hon. Friend did no such thing. He was rightly pointing to the different roles of the judiciary and Parliament, and saying that he feared that we might move towards a stage when the judiciary began to overlap into the fields that belong principally to Members of this House. He went no further—indeed, he was generous in his remarks about the judiciary.
Clause 4 is the cutting edge of the Bill. It is the point where the convention will bite in particular litigation to enable the litigant to invite the judge to come to a conclusion different from that which he would have reached but for the convention. Thus the amendments, and the clause generally, are extremely important. I urge the Government to accept the amendments. I see hon. Members who I know have reasonable attitudes. I shall not name them, but a number are known to be sensible thinkers about these matters. If they listen to our arguments carefully, as I can see they are doing, they will inevitably take them on board, and are likely to support us later tonight.
The past is in the past, and I must accept that my opposition to the Bill on Second Reading was not enough to carry the House on that occasion—not enough hon. Members took the same view. I said then, and I repeat tonight, that the roles of the judiciary and the legislature are, and should remain, entirely different. We must deal with the method by which the Government seek to give practical effect to the convention in English law. Having accepted the will of the House, it is important for me carefully to examine the problem, and to argue my corner about how best to give practical effect to the convention in our law.
Surely we can all agree on the need for clarity rather than obscurity and confusion when choosing the method of giving effect to the convention. The Bill's method is to enable the judge to make a declaration of incompatibility between a provision of existing domestic law and a convention provision. There is no reason in principle why that provision of domestic law should be a statutory provision or a provision of delegated legislation; it could well refer to common law. I add that a declaration of incompatibility may occur between a provision of existing domestic law and a convention provision as already interpreted by the European Court of Human Rights.
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The amendments, particularly amendment No. 15, ask the court properly to particularise the incompatibility. I hope to show why that is not only desirable but 453 absolutely essential. Let us take a simple law case. It may arise under existing landlord and tenant or employment legislation—it matters not.
Let us say that landlord and tenant legislation provides that a three-week period is reasonable notice for a change in the relationship between the parties. Suppose the court, on hearing argument, finds that the three-week period fails adequately to safeguard one or more convention rights. It would be unhelpful—indeed, arguably, faintly ludicrous—for the judge simply to say that and go no further. The judge should perhaps say what period would be a sufficient safeguard.
One can think of Revenue cases, particularly those concerning penalty time limits, in which such a point might be highly relevant. In my hypothetical case, it is no good the judge simply issuing a declaration of incompatibility and saying that three weeks is not long enough: he must go further.
§ Mr. MaclennanIs not the hon. Gentleman, in making that suggestion, inviting the judge to usurp the legislative function and say what should be done? That is very much a matter for the House.
§ Mr. MalinsAs I continued to explore that argument, I asked myself that very question. Was I in fact suggesting that the judge should move into the legislative sphere? However, that is not my point. My point is that the judge should not simply issue the declaration of incompatibility but give much more explanation, so that the House and others know what the judge considers the problem to be.
In my example of the three-week period in the relationship under landlord and tenant law on which the judge issues a declaration of incompatibility, such a statement is not enough. For example, what would the House do when faced with such a simple declaration of incompatibility? Would it remedy the point by substituting four, five or six weeks, only to have the same or a different judge saying later that that was not long enough?
The law should not be a game of ping-pong between the courts and the elected House of Commons. There is a danger that that will happen unless the amendments are accepted.
Here is an example of the problem as it currently exists. Under the Unfair Contract Terms Act 1977, a limitation clause in a contract may limit damages to £100,000, and the judge may strike it down as unreasonable. It could be argued that the unjustness in that case arises because we gave no power or duty to the judge to substitute a reasonable figure. Once the limit is judged unreasonable, the contract contains no limit: there is unlimited liability.
There is no obligation on the judge in such a case to tell the parties what would be a reasonable provision, and thus enable them to plan their future affairs properly. We cannot allow such a situation to exist. The amendments are right, and the judge must be required to state what aspect of the provision is incompatible and to what degree. The judge should produce a fully particularised judgment, so that people know why he or she has come to such a conclusion. The parties—the people of this country if it is a common law point, and the House of 454 Commons if it is a statutory point—should know exactly how to alter their respective affairs or the law so as to comply with the convention.
§ Mr. HoonI have listened carefully to the hon. Gentleman's arguments, but some of them are a little far-fetched. Can he contemplate a decision by any of the courts listed in clause 4(5) that does not give carefully particularised reasons for the finding of incompatibility?
§ Mr. MalinsIf the Bill had stated that, the Opposition would not have tabled the amendment. The clause provides that the court
may make a declaration of that incompatibility.We want to add the wordssetting out the nature and extent thereof in so far as arises from the nature of the case before the court".The Minister asked whether I. could imagine a case in which the court would not fully particularise the matter in such detail and with such observations.
§ Mr. LeighThe Minister has at least done the House a service. Under Pepper v. Hart, a Minister's words—especially such a distinguished Minister as the hon. Gentleman—can be used by the courts to interpret the intentions of Parliament. Although the Minister will instruct his minions to vote down this sensible amendment, he has just said, in effect, that the courts should do precisely what the amendment would require them to do.
Mr. MatinsMy hon. Friend has hit the nail on the head. It is all very well the Minister sitting there smiling, but this is a serious point, because people outside the House will take note of what is said in this debate. The Minister asked me whether I could envisage a case in which the court did not issue a fully particularised and detailed view on the matter. That requirement is not in the Bill, and the Minister's words may come back to haunt him. He seems to have accepted the substance of the amendment.
§ Mr. GrieveI can think of a number of judgments of superior courts, including the House of Lords, which, while dealing with a precise point that had arisen before them, provided no guidelines on how the law might be complied with. That is precisely the point that the amendment is designed to address.
§ Mr. MalinsMy hon. Friend, who, like my hon. Friend the Member for Gainsborough (Mr. Leigh), has a distinguished career in the law, again makes a valid point. Conservative Members are afeared that the Bill means what it says. The Minister may correct me if I am wrong, but it says that a declaration of incompatibility will be issued.
I have been asked whether I could imagine a situation in which such a declaration would not be full, covering all the points of the amendment. If the Minister is saying that he is absolutely certain that its spirit and wording would be observed in practice, we should be happy to hear it, but that is not in the Bill, which is why we are advancing these arguments.
I must make a few concluding remarks, because the thrust of my arguments has, I hope, become clear. It has certainly become clear to me. Our amendments would 455 help to prevent, or certainly discourage, judges from pushing for changes in our law that were not strictly necessary. My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) referred to that danger, and it lies ahead. The amendments would also discourage judges from getting involved in the political arena too much, and pressure groups from pushing too hard to open up a whole field in any particular case.
It must be clear to Labour Members that the Minister has, by his words tonight, effectively accepted our amendment. Therefore, I am sure that, having heard the arguments, he will accept it and bring his colleagues with him into the Lobby with us. if he does, and if he recognises our concerns, we shall be satisfied.
§ Mr. Gerald HowarthThe clause goes to the heart of the Bill. My hon. and learned Friend the Member for Harborough (Mr. Garnier) was absolutely right to say that it is a collision point; I regard it as a recipe for permanent conflict between Parliament and our courts. I agree with my hon. and learned Friend's assertion and encourage him to go further in attacking the Government. He said that he acquitted them of seeking to destroy the constitution through the Bill. He is a reasonable man, which is a reason why he advanced that case. I am not of such charitable disposition.
As I have said previously in the House, I believe that the Bill is one of a series of measures—on Scotland, the Welsh Assembly and the proposals for the European Parliament—that strike at the constitution. A constitutional arrangement that has served the people of Britain well is being systematically destroyed. That owes much to the vanity of the Prime Minister. He has no great economic issue to fight, because that was done by the Conservatives over 18 glorious years; therefore, he has turned his attention to wrecking the constitution.
My hon. Friend the Member for Woking (Mr. Malins) said that people outside the Chamber would listen to the debate with great interest. I am afraid that he was joking, because our debates on the great constitutional issues, which affect the people of this country, are not being reported. We need only look to see the number of journalists taking careful note of what is said.
My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) was right to say that the people have an interest in constitutional measures, but those issues are not being brought to their attention. As the Minister knows, people are much more interested in the Lord Chancellor's wallpaper. As the hon. Member for Sherwood (Mr. Tipping) knows, I played a small part—I should be the first to acknowledge that that is an important issue, but it is not half as important as the issues that we are debating.
Consider the relative coverage that constitutional issues have been given by the media: Gazza, and Ginger Spice leaving the Spice Girls have commanded acres of coverage. One day, the people of Britain will wake up, and will see that all these changes are being made to our constitution.
§ The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)Order. I must ask the hon. Gentleman to confine himself to the amendment. The matters to which he is referring have nothing to do with it.
§ Mr. HowarthYou are very kind, Mr. Martin, but I am trying to draw attention to the importance of the issue. I think that what I am saying is pertinent to the amendment, which requires the courts, if they seek to strike down legislation on the ground that it is incompatible with a convention right, to give reasons for doing so. I think that such questions should be aired to a much wider public than they are now.
The Bill strikes at the heart of the concept of the separation of powers. I do not share the benign, indeed complacent, view of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). He does not think it possible that judges would seek to challenge Parliament—but, as my right hon. Friend the Member for Suffolk, Coastal pointed out, judges are human beings like the rest of us. As I think my right hon. Friend said, they have a natural appetite for the extension of their powers, and that should be constrained.
In this place, we should anticipate what might come to pass. There are enough eminent lawyers around—I single out just two, George Carman and Geoffrey Robertson—who quite enjoy the limelight. I cast no aspersions on them, of course—not tonight, anyway—but I think that, if the Bill becomes law, we could well be faced with a new breed of judge, who would seek—
The First Deputy ChairmanOrder. The hon. Gentleman cannot get away with this. He is trying to engage in a Second Reading debate, but, as he must know, there are amendments before the Committee, and he must zero in on them.
§ Mr. HowarthI am grateful for your guidance, Mr. Martin.
We have been discussing the separation of powers, and how the amendments relate to it. My point is that there is a grave danger that the courts will seek to exercise new powers that the Bill confers on them. The amendments merely require them to explain why they seek to strike down laws enacted by this sovereign Parliament.
§ Mr. GummerMay I return my hon. Friend to the subject of the amendment? Its purpose, surely, is specifically to constrain the human condition. I am sorry that the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) took it so personally; I merely said that we were all heir to the same danger—the danger of wanting greater rather than lesser powers. That seems manifestly true to me, and the amendment would enable us to restrain such powers in an elegant but important way.
§ Mr. HowarthMy right hon. Friend has made his case eloquently, and he is entirely right. I hope that the complacency of the right hon. Member for Caithness, Sutherland and Easter Ross will be noted, because I think it extremely dangerous. It should be made clear that, unless the amendment is accepted, the courts may seek to overthrow the rights of our Parliament.
In October last year, in an interesting article in The Times, Sir Brian Cubbon—formerly Permanent Under-Secretary of State at the Home Office—wrote:
The redress of grievances has been a traditional role of the House of Commons. The Bill would shift that responsibility to the courts over the whole field of what are called human rights in the European 457 Convention. This goes far beyond the present scope of judicial review … Rights under the convention cover many of the grievances which MPs receive from their constituents about public authorities.My hon. Friend the Member for Woking said that pressure groups, having failed to impress their case on Parliament, might seek to come not to this place but to the courts, where they will argue their case in the hope that they will enable the judges to strike down laws that were enacted by Parliament.My hon. Friend the Member for Beaconsfield (Mr. Grieve) wishes to participate in the debate, so I shall conclude by saying that Mr. Francis Bennion, an eminent constitutional lawyer, has said that the Bill is neither a mirror image of the Strasbourg convention nor free standing, and could enable the courts not to reflect the Strasbourg convention but to interpret it in their own way. Will judges be required to interpret the laws of the land as being consistent with the European convention on human rights or will they be free to develop their own law? It is important to establish that.
The amendment is modest, and the Minister has acknowledged the case for it. If he agrees with its thrust, accepting it will do him no harm, and will clearly show the public exactly what we are trying to achieve.
§ Mr. GrieveI do not wish it to be thought that the only speeches supporting the amendments came from those who, on broad principle, were against the Bill. As I think the Minister knows, I support incorporation, although there are some matters that I wish to scrutinise and criticise during the passage of the legislation. I appreciate the point, which I am sure the Minister will make, that one would normally expect a court, when pronouncing on a question of incompatibility, to set out the nature and the extent of that incompatibility as it arises from the nature of the case that is before the court. In principle, that is what one would expect, but, in my experience, courts occasionally do not do that. It is an indispensable prerequisite to Parliament being able to make an objective and correct judgment on incompatibility and on how it wishes to proceed for that decision to be made here.
One of the anxieties that has been expressed at length during consideration of the Bill and with which I broadly disagree, although I understand its nature, is that the courts will start to substitute themselves for Parliament in ensuring the freedoms of the people. As I have said, this legislation will work and will go down in history as being great if it is subsequently perceived that Parliament and the courts are working in tandem to achieve good human rights in accordance with the convention and its incorporation in our national law. It follows that, if primary legislation is considered to be incompatible with the terms of the Bill and the incorporated convention—an event which, I hope, will rarely occur—we should be clear about what the court has said is the problem, and there should be public consideration of the matter.
As I said on Second Reading, the Bill is not written in stone. On occasions, Parliament, having considered the matter carefully, might decide that, notwithstanding what has been said, it wishes to derogate from the court's decision, for sound public policy reasons. I hope that it would not have to do that, but it might. It seems that little would be lost by including amendments Nos. 15 and 16, which relate to subordinate legislation, and that something might be gained, although I would understand the 458 Minister saying, "Normally, I would expect this to be dealt with without any specific reference to it being made." Nevertheless, if no harm would result from including the amendment—I do not see what harm would result—it could properly be put in the Bill.
The matter is somewhat different in respect of amendment No. 103. It requests that a court should not make a declaration of incompatibility
unless it is necessary for the purpose of determining the matter before it.I had some hesitation about that when I first considered it, because what the courts may say in obiter parts of their judgment is important for lawyers in respect of similar cases, but it would still be open to a court to reveal in the course of a judgment its anxiety over some passage relating to a case not before it, without making a declaration of incompatibility that did not relate to the matter before it.I do not think that the amendment will fetter a court's ability to make obiter pronouncements suggesting that, in some other respect, something that it is considering may not be compatible with the convention. I therefore ask the Minister to consider that amendment as well, although I would be not be as worried about it not being made as I would be about the other two amendments not being accepted.
§ Mr. HoonI agree with Opposition Members to this extent. Clause 4 is central to the careful compromise that the Government propose in the Bill—a compromise between parliamentary sovereignty and the need to give proper effect to the European convention. However, the Government will resist the Opposition amendments because they will unnecessarily disturb the careful balance that the Government have sought to establish.
Amendments Nos. 15 and 16 would require a court making a declaration of incompatibility to set out the nature and extent of the incompatibility in so far as that arose from the nature of the case before the court. It is important to remind the Committee of what the court will do when it makes a declaration of incompatibility by virtue of clause 4.
By virtue of clause 3, the court will have done everything possible to find an interpretation of the relevant legislation that is compatible with the convention rights. If one of the courts that is specified in clause 4 is satisfied that it is simply not possible to find a compatible interpretation, it will be able to say so formally by means of a declaration of incompatibility. That is most likely to have followed the procedure that is set out in clause 5 giving the Crown the right to intervene.
With great respect to the hon. Member for Woking (Mr. Malins), I believe that his description of courts suggested that they would pronounce on incompatibility almost at the drop of a hat. There will be a vigorous contest before a court, and both sides of the argument will be extensively debated and discussed before that court reaches a decision. As I have said in an intervention, it will be obvious that the matter has been explored in considerable detail and, clearly, one of the higher courts that are set out in clauses 4 and 5 will be required to explain in some detail the reasons for issuing the declaration.
A declaration of incompatibility will be a statement that, in the court's view, there is a problem with a piece of legislation in terms of its compatibility with the 459 convention, and it is not open to the court itself to rectify or to make good the legislation. That may happen because a Government may have deliberately provided in a Bill that it is not to be open to the court to strike down primary legislation. That course of action could have been considered by the Government when making our proposals. As we heard from the hon. and learned Member for Harborough (Mr. Garnier), that approach is adopted in some countries when dealing with such measures. Nevertheless, the Government decided that, in the interests of maintaining parliamentary sovereignty, that would not be the course we would commend to Parliament.
Interestingly, great stress was placed on parliamentary sovereignty in our earlier discussions, but there has been a curious absence of it in this debate. We have placed parliamentary sovereignty at the centre of the proposals and we have not allowed the courts to strike down legislation. By enabling the courts to make a declaration of incompatibility, the situation can be brought to the notice of Parliament and the deficiency subsequently rectified by Parliament, whether by primary legislation or by approving a remedial order. That allows Parliament precisely the opportunity for which Opposition Members have been arguing. I am sorry that they have not accepted that during my comments.
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Perhaps I should turn in more detail to the formulation offered in amendments Nos. 15 and 16. I doubt whether a requirement on the court to explain the "nature and extent" of the incompatibility would add anything to the Bill, from anyone's point of view. As the Bill stands, I would expect a court, when making a declaration, to explain what the difficulty was and why it had been impossible to overcome it by constructive interpretation of clause 3. How the declaration arose would be apparent from the judgment as a whole.
A legislative provision will be either compatible or incompatible. The idea that it is possible for a court to certify the extent of the incompatibility is patent nonsense—forgive me for putting it so brutally. It is not possible to certify the extent of an incompatibility. There is either a breach of the convention or there is not. That part of the amendments is patently absurd. There will not be degrees of incompatibility, or any difference between one kind of incompatibility and another.
I am not sure what is meant by the "nature" of the case before the court. Does that refer to distinctions between civil and criminal cases, between cases involving juveniles and cases involving adults, between long and short cases, or between cases with a jury and cases without a jury? Not one Opposition Member has troubled to try to explain that aspect.
Even if we accepted such wording, why is the nature of the case relevant to whether legislation can or cannot be interpreted compatibly with the convention? The implication is that legislation could mean one thing in one case and another in another case. That hardly strikes me as a sound basis for judicial interpretation. Having thought more carefully about the amendment, I hope that Opposition Members will accept that they are not arguing for anything terribly sensible.
460 That applies equally to amendment No. 103. The purpose of a declaration is to draw attention to a legislative incompatibility with the convention and to act as a trigger for a remedial order under clauses 10 to 12. A declaration of incompatibility has no effect on the case before the court. Clause 4(6) expressly provides that a declaration does not affect the validity, continuing operation or enforcement of the relevant legislative provision. This is because we think that any decision to change primary legislation should be reserved for the consideration of Parliament. Again, the Government are upholding the sovereignty of Parliament and are not in any way breaching that principle.
Amendment No. 103 would prevent a declaration from being made unless that were specifically necessary to determine the case in question, yet the kinds of cases where the issues are likely to arise will almost inevitably be complex and involve different issues, each of which will have to be resolved by the court. Under this amendment, it is highly unlikely that a declaration of incompatibility would ever be made. That may be the real intention of the Opposition. [Interruption.]
The First Deputy ChairmanOrder. There are so many conversations going on that I cannot hear the Minister.
§ Mr. HoonOpposition Members have been anxiously awaiting these observations. I am sorry that they appear to find them less than exciting.
It is important that we deal properly with incompatibility and the declaration that might follow. Amendment No. 103 simply does not deal with it, and has no place in the scheme that we have established in clause 4.
The Government believe that this group of amendments is fundamentally misconceived. I do not believe that the amendments have been read carefully by Opposition Members. I therefore invite the hon. and learned Member for Harborough to seek leave to withdraw amendment No. 15.
§ Mr. GarnierI am grateful for this brief opportunity to respond to some of the points made in this debate, particularly those made by my right hon. and hon. Friends.
In a considered and cogent speech, my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) produced four reasons why this group of amendments should be supported: in defence of the people; in defence of the Government; in defence of the House; and in defence of the courts. Nothing that has fallen from the Minister's lips has done anything to persuade either me or my right hon. and hon. Friends that the arguments in favour of the amendments have been in any way defeated.
The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) hides within his gentle exterior a waspish tongue. I am not in the least bit surprised that his nickname across the county that he represents is "Tiger". Despite his waspish tongue, he did not say anything to knock our arguments on the head one jot. The substance of his complaint was that the language of amendment No. 15 was confusing. That is a matter for him, but it seems pretty clear to us.
461 My hon. Friends the Members for Vale of York (Miss McIntosh) and for Woking (Mr. Malins) spoke with experience of membership of the House and, in the case of my hon. Friend the Member for Vale of York, as a Member of the European Parliament and Scottish law graduate, and, in the case of my hon. Friend the Member for Woking, as a recorder and stipendiary magistrate, with practical experience of the judicial function. Both realise the dangers of breaking down the barriers separating two of the three limbs of our constitution. My hon. Friend the Member for Woking also very carefully suggested that the incompatibility which is to be declared under clause 4 must be properly particularised. Nothing has been said by the Minister to dissuade me from the rightness of that argument.
I am happy to say that my hon. Friend the Member for Aldershot (Mr. Howarth) gave a characteristically robust performance. He was certainly not put off his stride by some of the interventions with which he dealt so expertly.
My hon. Friend the Member for Beaconsfield (Mr. Grieve) has become a noted star of our debates on both the Human Rights Bill and the other constitutional issues with which he has had to deal. He supported amendment No. 15 from the interesting position of someone who supports incorporation. He deserves to be listened to with particular attention. It is perhaps worth reminding the Minister of a point that he mentioned—the European Court of Human Rights does not distinguish between obiter dicta and the ratio of a judgment.
The Minister promised much, but delivered nothing. He is complacent. He is always complacent—on this subject and on others—about the prospect of a constitutional collision about which we have warned. He displayed a touching faith in his own rhetoric, without understanding what has been going on in this debate. Not a single argument that he advanced has persuaded me or my hon. Friends that the matter should be left to lie. I invite my hon. Friends to join me in the Lobby in supporting the amendment.
§ Question put, That the amendment be made:—
§ The Committee divided: Ayes 128, Noes 320.
464| Division No. 292] | [10.8 pm |
| AYES | |
| Ainsworth, Peter (E Surrey) | Cormack, Sir Patrick |
| Amess, D avid | Cran, James |
| Ancram, Rt Hon Michael | Curry, Rt Hon David |
| Atkinson, David (Bour'mth E) | Davies, Quentin (Grantham) |
| Atkinson, Peter (Hexham) | Davis, Rt Hon David (Haltemprice) |
| Beggs, Roy | Day, Stephen |
| Bercow, John | Dorrell, Rt Hon Stephen |
| Beresford, Sir Paul | Duncan, Alan |
| Blunt, Crispin | Duncan Smith, Iain |
| Body, Sir Richard | Evans, Nigel |
| Boswell, Tim | Faber, David |
| Bottomley, Peter (Worthing W) | Fabricant, Michael |
| Bottomley, Rt Hon Mrs Virginia | Fallon, Michael |
| Brady, Graham | Flight, Howard |
| Brooke, Rt Hon Peter | Forsythe, Clifford |
| Browning, Mrs Angela | Forth, Rt Hon Eric |
| Bruce, Ian (S Dorset) | Fox, Dr Liam |
| Butterfill, John | Fraser, Christopher |
| Chapman, Sir Sydney (Chipping Barnet) | Gale, Roger |
| Garnier, Edward | |
| Chope, Christopher | Gibb, Nick |
| Clappison, James | Gillan, Mrs Cheryl |
| Clifton-Brown, Geoffrey | Gray, James |
| Colvin, Michael | Greenway, John |
| Grieve, Dominic | Prior, David |
| Gummer, Rt Hon John | Randall, John |
| Hague, Rt Hon William | Robathan, Andrew |
| Hamilton, Rt Hon Sir Archie | Robertson, Laurence (Tewk'b'ry) |
| Hammond, Philip | Roe, Mrs Marion (Broxbourne) |
| Heald, Oliver | Ross, William (E Lond'y) |
| Hogg, Rt Hon Douglas | Ruffley, David |
| Horam, John | St Aubyn, Nick |
| Howard, Rt Hon Michael | Sayeed, Jonathan |
| Howarth, Gerald (Aldershot) | Shephard, Rt Hon Mrs Gillian |
| Hunter, Andrew | Simpson, Keith (Mid-Norfolk) |
| Jack, Rt Hon Michael | Smyth, Rev Martin (Belfast S) |
| Jackson, Robert (Wantage) | Spelman, Mrs Caroline |
| Jenkin, Bernard | Spicer, Sir Michael |
| Johnson Smith, Rt Hon Sir Geoffrey | Spring, Richard |
| Stanley, Rt Hon Sir John | |
| Laing, Mrs Eleanor | Steen, Anthony |
| Lait, Mrs Jacqui | Swayne, Desmond |
| Lansley, Andrew | Syms, Robert |
| Leigh, Edward | Tapsell, Sir Peter |
| Letwin, Oliver | Taylor, Ian (Esher & Walton) |
| Lewis, Dr Julian (New Forest E) | Taylor, John M (Solihull) |
| Lidington, David | Taylor, Sir Teddy |
| Lilley, Rt Hon Peter | Townend, John |
| Lloyd, Rt Hon Sir Peter (Fareham) | Tredinnick, David |
| Loughton, Tim | Trend, Michael |
| MacGregor, Rt Hon John | Tyrie, Andrew |
| McIntosh, Miss Anne | Viggers, Peter |
| Maclean, Rt Hon David | Walter, Robert |
| McLoughlin, Patrick | Wardle, Charles |
| Major, Rt Hon John | Waterson, Nigel |
| Malins, Humfrey | Whittingdale, John |
| Maples, John | Widdecombe, Rt Hon Miss Ann |
| Mates, Michael | Wilkinson, John |
| Maude, Rt Hon Francis | Willetts, David |
| Mawhinney, Rt Hon Sir Brian | Winterton, Mrs Ann (Congleton) |
| May, Mrs Theresa | Woodward, Shaun |
| Moss, Malcolm | Yeo, Tim |
| Nicholls, Patrick | Young, Rt Hon Sir George |
| Norman, Archie | |
| Paice, James | Tellers for the Ayes: |
| Paterson, Owen | Sir David Madel and Mr. Tim Collins. |
| Pickles, Eric | |
| NOES | |
| Adams, Mrs Irene (Paisley N) | Brand, Dr Peter |
| Ainger, Nick | Breed, Colin |
| Allan, Richard | Brinton, Mrs Helen |
| Allen, Graham | Brown, Rt Hon Nick (Newcastle E) |
| Anderson, Donald (Swansea E) | Brown, Russell (Dumfries) |
| Anderson, Janet (Rossendale) | Browne, Desmond |
| Armstrong, Ms Hilary | Buck, Ms Karen |
| Ashton, Joe | Burden, Richard |
| Austin, John | Burgon, Colin |
| Ballard, Jackie | Burnett, John |
| Barnes, Harry | Burstow, Paul |
| Barron, Kevin | Butler, Mrs Christine |
| Battle, John | Byers, Stephen |
| Bayley, Hugh | Caborn, Richard |
| Beard, Nigel | Campbell, Alan (Tynemouth) |
| Beckett, Rt Hon Mrs Margaret | Campbell, Mrs Anne (C'bridge) |
| Begg, Miss Anne | Campbell-Savours, Dale |
| Bennett, Andrew F | Cann, Jamie |
| Benton, Joe | Casale, Roger |
| Bermingham, Gerald | Chapman, Ben (Wirral S) |
| Berry, Roger | Chaytor, David |
| Best, Harold | Chisholm, Malcolm |
| Betts, Clive | Clapham, Michael |
| Blackman, Liz | Clark, Dr Lynda (Edinburgh Pentlands) |
| Blears, Ms Hazel | |
| Blizzard, Bob | Clark, Paul (Gillingham) |
| Boateng, Paul | Clarke, Tony (Northampton S) |
| Bradley, Keith (Withington) | Clelland, David |
| Bradley, Peter (The Wrekin) | Clwyd, Ann |
| Bradshaw, Ben | Coaker, Vernon |
| Brake, Tom | Coffey, Ms Ann |
| Coleman, Iain | Hopkins, Kelvin |
| Colman, Tony | Howarth, Alan (Newport E) |
| Connarty, Michael | Howarth, George (Knowsley N) |
| Cooper, Yvette | Hoyle, Lindsay |
| Corston, Ms Jean | Hughes, Ms Beverley (Stretford) |
| Cotter, Brian | Hughes, Kevin (Doncaster N) |
| Cousins, Jim | Hughes, Simon (Southwark N) |
| Cranston, Ross | Humble, Mrs Joan |
| Crausby, David | Hutton, John |
| Cryer, Mrs Ann (Keighley) | Iddon, Dr Brian |
| Cummings, John | Illsley, Eric |
| Cunningham, Jim (Cov'try S) | Jackson, Helen (Hillsborough) |
| Dalyell, Tam | Jamieson, David |
| Darling, Rt Hon Alistair | Jenkins, Brian |
| Davey, Edward (Kingston) | Johnson, Alan (Hull W & Hessle) |
| Davey, Valerie (Bristol W) | Johnson, Miss Melanie (Welwyn Hatfield) |
| Davidson, Ian | |
| Davies, Rt Hon Denzil (Llanelli) | Jones, Barry (Alyn & Deeside) |
| Davies, Geraint (Croydon C) | Jones, Ms Jenny (Wolverh'ton SW) |
| Davies, Rt Hon Ron (Caerphilly) | |
| Davis, Terry (B'ham Hodge H) | Jones, Jon Owen (Cardiff C) |
| Dean, Mrs Janet | Jones, Dr Lynne (Selly Oak) |
| Denham, John | Jones, Martyn (Clwyd S) |
| Dismore, Andrew | Jowell, Ms Tessa |
| Dobbin, Jim | Kaufman, Rt Hon Gerald |
| Donohoe, Brian H | Keeble, Ms Sally |
| Doran, Frank | Keen, Alan (Feltham & Heston) |
| Drew, David | Keen, Ann (Brentford & Isleworth) |
| Dunwoody, Mrs Gwyneth | Keetch, Paul |
| Eagle, Angela (Wallasey) | Kennedy, Jane (Wavertree) |
| Eagle, Maria (L'pool Garston) | Khabra, Piara S |
| Edwards, Huw | Kidney, David |
| Efford, Clive | King, Andy (Rugby & Kenilworth) |
| Ellman, Mrs Louise | Kingham, Ms Tess |
| Ennis, Jeff | Ladyman, Dr Stephen |
| Fatchett, Derek | Lepper, David |
| Field, Rt Hon Frank | Leslie, Christopher |
| Fisher, Mark | Levitt, Tom |
| Fitzsimons, Lorna | Lewis, Ivan (Bury S) |
| Flint, Caroline | Liddell, Mrs Helen |
| Flynn, Paul | Linton, Martin |
| Foster, Rt Hon Derek | Livingstone, Ken |
| Foster, Don (Bath) | Livsey, Richard |
| Foster, Michael Jabez (Hastings) | Llwyd, Elfyn |
| Foster, Michael J (Worcester) | Lock, David |
| Foulkes, George | Love, Andrew |
| Fyfe, Maria | McAllion, John |
| Galbraith, Sam | McAvoy, Thomas |
| Gapes, Mike | McCabe, Steve |
| Gardiner, Barry | McCafferty, Ms Chris |
| Gerrard, Neil | Macdonald, Calum |
| Gilroy, Mrs Linda | McDonnell, John |
| Godman, Dr Norman A | McFall, John |
| Goggins, Paul | McGuire, Mrs Anne |
| Gorrie, Donald | Mackinlay, Andrew |
| Griffiths, Jane (Reading E) | Maclennan, Rt Hon Robert |
| Griffiths, Nigel (Edinburgh S) | McNamara, Kevin |
| Griffiths, Win (Bridgend) | McNulty, Tony |
| Grocott, Bruce | Mactaggart, Fiona |
| Grogan, John | McWalter, Tony |
| Gunnell, John | McWilliam, John |
| Hall, Patrick (Bedford) | Mahon, Mrs Alice |
| Hamilton, Fabian (Leeds NE) | Mallaber, Judy |
| Hancock, Mike | Marsden, Gordon (Blackpool S) |
| Hanson, David | Marshall, David (Shettleston) |
| Heal, Mrs Sylvia | Marshall-Andrews, Robert |
| Henderson, Ivan (Harwich) | Martlew, Eric |
| Hepburn, Stephen | Maxton, John |
| Heppell, John | Meacher, Rt Hon Michael |
| Hewitt, Ms Patricia | Meale, Alan |
| Hill, Keith | Merron, Gillian |
| Hinchliffe, David | Michael, Alun |
| Hoey, Kate | Milburn, Alan |
| Home Robertson, John | Miller, Andrew |
| Hoon, Geoffrey | Mitchell, Austin |
| Hope, Phil | Moffatt, Laura |
| Moonie, Dr Lewis | Smith, Miss Geraldine (Morecambe & Lunesdale) |
| Moore, Michael | |
| Moran, Ms Margaret | Smith, Llew (Blaenau Gwent) |
| Morgan, Ms Julie (Cardiff N) | Smith, Sir Robert (W Ab'd'ns) |
| Morgan, Rhodri (Cardiff W) | Soley, Clive |
| Morley, Elliot | Southworth, Ms Helen |
| Morris, Ms Estelle (B'ham Yardley) | Spellar, John |
| Mudie, George | Squire, Ms Rachel |
| Mullin, Chris | Starkey, Dr Phyllis |
| Murphy, Jim (Eastwood) | Steinberg, Gerry |
| Murphy, Paul (Torfaen) | Stevenson, George |
| Norris, Dan | Stewart, David (Inverness E) |
| Oaten, Mark | Stewart, Ian (Eccles) |
| O'Brien, Bill (Normanton) | Stinchcombe, Paul |
| Olner, Bill | Stoate, Dr Howard |
| O'Neill, Martin | Stott, Roger |
| Osborne, Ms Sandra | Straw, Rt Hon Jack |
| Palmer, Dr Nick | Stringer, Graham |
| Pearson, Ian | Stuart, Ms Gisela |
| Pickthall, Colin | Stunell, Andrew |
| Pike, Peter L | Sutcliffe, Gerry |
| Plaskitt, James | Taylor, Rt Hon Mrs Ann (Dewsbury) |
| Pollard, Kerry | |
| Pond, Chris | Taylor, Ms Dari (Stockton S) |
| Pope, Greg | Taylor, David (NW Leics) |
| Pound, Stephen | Taylor, Matthew (Truro) |
| Powell, Sir Raymond | Thomas, Gareth (Clwyd W) |
| Prentice, Ms Bridget (Lewisham E) | Timms, Stephen |
| Prentice, Gordon (Pendle) | Tipping, Paddy |
| Prescott, Rt Hon John | Touhig, Don |
| Primarolo, Dawn | Trickett, Jon |
| Purchase, Ken | Truswell, Paul |
| Quin, Ms Joyce | Twigg, Derek (Halton) |
| Quinn, Lawrie | Vaz, Keith |
| Radice, Giles | Vis, Dr Rudi |
| Rammell, Bill | Walley, Ms Joan |
| Rapson, Syd | Ward, Ms Claire |
| Raynsford, Nick | Wareing, Robert N |
| Reed, Andrew (Loughborough) | Watts, David |
| Rendel, David | White, Brian |
| Roche, Mrs Barbara | Wicks, Malcolm |
| Rooker, Jeff | Wigley, Rt Hon Dafydd |
| Ross, Ernie (Dundee W) | Williams, Rt Hon Alan (Swansea W) |
| Rowlands, Ted | |
| Roy, Frank | Williams, Alan W (E Carmarthen) |
| Ruddock, Ms Joan | Willis, Phil |
| Russell, Bob (Colchester) | Wills, Michael |
| Russell, Ms Christine (Chester) | Winnick, David |
| Ryan, Ms Joan | Winterton, Ms Rosie (Doncaster C) |
| Salter, Martin | Wood, Mike |
| Sawford, Phil | Woolas, Phil |
| Sedgemore, Brian | Worthington, Tony |
| Shaw, Jonathan | Wright, Anthony D (Gt Yarmouth) |
| Sheldon, Rt Hon Robert | Wright, Dr Tony (Cannock) |
| Simpson, Alan (Nottingham S) | |
| Singh, Marsha | Tellers for the Noes: |
| Skinner, Dennis | Mr. Robert Ainsworth and Mr. Jim Dowd. |
| Smith, Angela (Basildon) |
§ Question accordingly negatived.
§ Mr. Austin Mitchell (Great Grimsby)I beg to move amendment No. 107, in page 3, line 24, at end insert—
- '(f) in Jersey, the Royal Court or the Court of Appeal;
- (g) in Guernsey, the Royal Court or the Court of Appeal;
- (h) in the Isle of Man, the High Court'.
The First Deputy ChairmanWith this, it will be convenient to discuss the following amendments: No. 108, in clause 5, page 3, line 40, after 'Scotland', insert
`, the Channel Islands or the Isle of Man'.465 No. 109, in clause 21, page 13, line 34, at end insert—`() law passed by the legislature of any of the Channel Islands or of the Isle of Man'.No. 110, in clause 22, page 14, line 22, at end insert—'(6A) This Act extends to the Channel Islands and the Isle of Man, and shall have effect as if each of them were part of the United Kingdom.'.
§ Mr. MitchellThe amendments would extend incorporation of the European convention to the Isle of Man and the Channel Islands. I suppose that the only phrase to describe them is "semi-independent statelets", but they have a unique status as dependencies of the Crown, too. They are Britain's offshore anomalies, because, although they are responsible for their own domestic law, financial affairs and tax regimes, the United Kingdom has the overall responsibility for good government in the islands.
The United Kingdom can legislate for the islands; it has the paramount power to do so. However, in practice, it does not do so except on matters involving international treaties and international agreements—such as the incorporation of the European convention on human rights, which we signed on their behalf at the outset.
Paragraph 1472 of the Kilbrandon commission's report on the constitution, dated 1973, said
Parliament does have power to legislate for the Islands without their consent on any matter in order to give effect to an international agreement"—such as the European convention on human rights. The power was used in relation to the Extradition Act 1989, which was extended to the Channel Islands as if they were part of the United Kingdom, and also in connection with the Marine, etc., Broadcasting (Offences) Act 1967, which was effectively imposed on the Isle of Man.The British Government's power to legislate is appropriate, as they have the responsibility to ensure that rights are maintained in the islands. Moreover, the British Government have to answer cases brought to Strasbourg about infringements of rights on the islands—we signed the convention on the islands' behalf. Indeed, in the birching case, the European Court ruled that convention rights applied to the Isle of Man.
My argument is that the convention should be incorporated not only into British law but into the law of the islands. Rights should be protected in these small democracies and dependencies, which are intimate and closed—they are, in many respects, living loopholes from the 20th century. There is no real party democracy that could make the legislature accountable, no open government and no base for dissent. The islands have their own tax regimes, which must cost our Exchequer billions of pounds in lost revenues. They do not have clear, powerful, effective financial regulations—they have become little offshore entrepots for the manipulation of money.
Powers are not separated: in Jersey, for example, the Bailiff—the Lord Chancellor—is also the Speaker of the States, the Attorney-General and the Solicitor-General sit in the States and there is no independent Director of Public Prosecutions. Women have no employment or benefits rights.
The islands have all the intimacies and pressures of any small community—they are like Salem without the witches. In Jersey, which is the richest of them, power is, in effect, controlled by the wealthy island elite—the island 466 establishment—which has a vested interest in providing services to finance. Many members of the elite are business men or maintainers of name plates for incoming companies; many are involved with Jersey banks and the offshoots of other banks in Jersey that manipulate money. The elite controls power through the parliamentary institutions. It also controls the media—Senator Walker owns the Jersey Evening Post, which is, therefore, hardly likely to be a vibrant source of dissent.
The islands have been humorously described—by me—as one-party states run by the freemasons. There are no parties and no opposition, so the regimes are cloying and potentially corrupt, because, in Jersey in particular, the governing elite does so well out of the provision of facilities for financial services, which give such a rich living—£200 billion is handled in the Jersey banks and financial institutions, and financial services provide more than 50 per cent. of the gross domestic product of Jersey.
If the people who control political power are also involved in the financial system, that system will be run for their interests and for those of the offshore capitalism that washes through, but leaves little residue for the people of the islands—there is no great trickle-down effect for the mass of the people. It is also possible that they will use their power to control legislation to further their own interests. In other words, legislation could be effectively up for sale. They resent any interference by the British Government or any attempt to control what is going on or to demand stricter regulation or a more effective tax regime.
Two years ago, however, they were perfectly prepared to intervene in the financial affairs of the United Kingdom in respect of limited liability partnerships. Big accountancy firms, terrified of lawsuits resulting from bad audits, were lobbying the British Government, who were then of another party, to give them limited liability status. Rather than becoming joint stock companies as they were given the power to do under the Companies Act 1989—
The First Deputy ChairmanOrder. I am very interested in what the hon. Gentleman has to say, but it does not fall within the scope of the amendments. He is talking about the status of the islands rather than the courts. The hon. Gentleman knows better than I do how to handle the amendments.
§ Mr. MitchellAmendment No. 107 would extend the incorporation of the convention into the islands' legislation. Rights are threatened by the dominance of the financial interests. Those rights can best be protected by the incorporation of the convention.
A row that resulted in a real threat to rights in Jersey was caused by the attempt two years ago to interfere in the United Kingdom financial system in respect of limited liability partnerships in Jersey. Effectively, two accountancy houses bought legislation in Jersey to limit liability. The legislation was drawn up by a London barrister at a cost of £1 million, and was promised a fast-track passage into law by the Jersey States. They sought to interfere here, as the idea was that they would force the British Government to follow suit. The protest against the rapid passage of that legislation resulted in a threat to the rights of Senator Syvaret, whose case is an illustration of the need to incorporate the convention into the legislation of the islands.
467 Any threat to intervene there is bitterly resented. The establishment in Jersey tries to maintain good relations with the Minister—usually a peer at the Home Office—who is richly and lavishly entertained. One establishment talks rhubarb to another establishment. Not satisfied with that, it employs extensive public relations advice, which is appropriate to the modern world of spin doctors and public relations.
The Max Clifford of Jersey is the Shandwick public affairs consultancy, which was paid £225,000 until the row over limited liability partnerships, when its fee was upped by another £200,000, so nearly £500,000 was paid out of the taxes of the people of Jersey to defend the interests of the elite. That involved all sorts of activities, which I shall not go into as they would divert me from the incorporation of the convention on human rights into the laws of Jersey.
However, I should mention in passing that part of the £500,000 that was spent on public relations as a result of the row over limited liability partnerships was paid in writing letters to me. Shandwick reported to the Jersey States about my article, saying:
I have ensured that Labour party key people have been briefed on the Jersey linewhich was against me. It continued:Mr. Mitchell is regarded as being a liability by the Labour party".I am sure that my right hon. Friend will want to assure the people of Jersey that that is not the case, and that I am indeed regarded as an asset by the Labour party.
§ Mr. MitchellI am most grateful to my right hon. Friend. That stage-managed intervention gives me a great deal of pleasure.
In contrast to what was said about me, it was said about my hon. Friend the Member for North Durham (Mr. Radice):
He is not likely to be made a member of the Government but I think he is worth targeting because of his level of knowledge and because he is still listened to by those in senior positions.That is picking and choosing in the Labour party, but it is part of public relations—[Interruption.] I am leaving the topic.I want to deal with the abridgement of rights that resulted from the attempt to limit liability for partnerships of accountancy houses, which was passed, under the fast-track procedure, by the Jersey States. The problem is that, when the elite feels threatened—when there is a threat to its vested financial interests and the provision of services—whether it be by the British Government or by critics in this country, it is prepared to use all the power and resources at its disposal to beat off that threat, whether it is internal or external. That often produces abridgements of rights, which are endemic in a system where there is no separation of powers; where the Executive is also the legislature; where there is no meaningful opposition; and where there is no protection of rights.
I have already referred to the lack of protection of the rights of women. I was told in a telephone conversation today that a man in Sark still has the right to beat his 468 wife, provided that the stick is thinner than his thumb and he does not draw blood. I do not want to provoke a rush of public school Conservatives wanting to settle in the island as a result of that revelation, but it is a sign of the feudal nature of the regime in Sark and the abuses of rights that it produces. The newspapers cite numerous instances of that.
In Guernsey, not long ago, there was the case of three men being locked up over a bank holiday without trial. The case did not come to court until five months later, and they were acquitted. A construction worker on the island of Brecqhou who was arrested in a drugs case was taken from Guernsey to Sark and charged, probably in the wrong jurisdiction, subjected to a trial in French—a language that he did not speak—and then told by a lawyer on the telephone, "You might as well plead guilty and get it over with." His rights were abridged.
There is the case of the Barclay brothers, the owners of The Scotsman. It involved an abridgement of rights. David Barclay wrote to me saying:
I have discovered by bitter experience over the past three or four years, and to my immense cost, the lack of natural justice and democratic rights in the Bailiwick of Guernsey and the island of Sark".He said that, on Sark:The Seigneur is the head of the Chief Pleas, Sark's Parliament, which is made up of 40 unelected members and he collects a thirteenth of the price of every property purchased on the island. This money is for his own personal benefit"—it is a marvellous racket—and serves no economic benefit whatsoever to the community. He appoints the Seneschal; he appoints the Prevot (Sheriff); he appoints the Greffier; he appoints the Treasurer and he approves the Constable.What defence of rights is there in such a situation?David Barclay continued:
The previous owner of Brecqhou"—which the Barclay brothers now own—was forced into a legal dispute to establish rightful ownership of the island under the feudal laws of primogeniture.There was a long dispute over which court applied—Sark or Guernsey. The case was referred to Guernsey, but after six years it remained unresolved. The owner was told that the court case could go on for another six years. Justice denied is a loss of rights. There is no appeal; there is no check on that sort of excess, which is now affecting the Barclay brothers. That is an appalling situation. The Barclay brothers are wealthy enough to take care of themselves, but it is difficult to do so when there is no protection for rights.The case of Senator Syvaret arose from limited liability partnerships. When a Bill was rushed through the Jersey States, he drew attention to a conflict of interest by pointing out that Senator Reg Jeune was part of Mourant, du Feu and Jeune, which was acting for Price Waterhouse and Ernst and Young in trying to pass the Bill. There is a fascinating precedent in that Bill, which we could observe. The introduction expresses Jersey's indebtedness to Ernst and Young and Price Waterhouse for writing the Bill. Perhaps we could have sponsored legislation, too. It is a marvellous system.
Thus the Bill was being handled by Mourant, du Feu and Jeune, while Senator Jeune was urging its speedy passage. When Senator Syvaret drew attention to that 469 conflict of interest, he was suspended indefinitely, unless he withdrew his remarks and apologised. He was deprived of his rights as a legislator, and his constituents were deprived of representation. Basic rights were denied, and there was no appeal.
Appeals to the Home Office Minister then responsible produced no result. I tabled an early-day motion that was well supported, and which produced a change of heart in Jersey. Senator Syvaret was allowed back without making an apology. They huddled him in by the back door. He is involved in a legal action over the deprivation of his rights, so that the case can go to Strasbourg, but that will remain a long, difficult road unless we incorporate the convention into the laws of all the islands, as my amendments would do.
We have the power to do that, and we have a moral obligation to do it. If we do not, in my view, and in the view of lawyers whom I have read, we shall be in breach of article 14 of the convention, if it is read alongside article 6. We are responsible for the islands, and when Senator Syvaret's case reaches Strasbourg, it will be titled Syvaret v. the United Kingdom. What formidable odds the senator from little Jersey faces as he takes on the entire United Kingdom. We are responsible for derelictions of rights in the islands, and we have a right to act under the external agreement. The royal commission on the constitution of 1973 made that explicit.
My right hon. Friend the Home Secretary is a canny man. Perhaps he is doing a nice guy, nasty guy routine, and he might portray me as a mean, moody monster who threatens the independence and integrity of the islands. My right hon. Friend knows that that is not my nature; I am warm and cuddly, and I have a vacuous smile for all, as any new Labour politician must. To portray me as some kind of brute or monster, trampling on the freedom of the islands, would be wrong.
I know—I have read it in the papers, and I have been handed letters that confirm it—that the fact that the amendments were tabled encouraged the Under-Secretary, Lord Williams of Mostyn, to go to Guernsey. He did not get to Jersey, because there was a strike, so the Jersey elite paddled over in rowing boats to consult him. They agreed to pass the legislation, but I want to know why it should be done that way. Would it not be better to do it for ourselves? Then there would be no backsliding, and it would be done without delay. The legislative processes in the islands are very slow—unless they are financed by Price Waterhouse or Ernst and Young. It can take three years, and rights would still be abused in that period.
I notice from the newspapers that Senator Pierre Horsfall of Jersey said that the Bailiff told Lord Williams that, when Sir Philip Bailhache was previously Attorney-General—he is now the Bailiff—
Jersey was on the verge of adopting the convention but was asked not to do so by the Home Office as the UK Government did not want to be seen to be following a dependency in adopting the provisions of the Human Rights Convention.That cannot possibly be true. I should like my right hon. Friend to comment on it.10.45 pm
An editorial in the Guernsey Evening Press says, more or less, that I should mind my own business. It states:
We would rather see the Labour MP turn his attention to real problems in the UK, such as the growing hospital waiting lists, prison overcrowding and drugs".470 That comes from an island where there is a shortage of nurses and prison staff because they are not paid enough and there is a growing drugs problem. The island cannot afford the latest medical technology, and urgent and serious cases are sent to Southampton for treatment. The British health service and all British social services are being drained of billions of pounds through the taxes and fiddles that are going on in the independent financial regime there.We shall not ratify the fourth protocol at present, for reasons that were explained to me by the Home Office Minister. I wish to put a further question to my right hon. Friend about the fourth protocol, which has been put to me from Jersey. Is it possible to include the fourth protocol in any Jersey Bill if it is not included in the British Bill—and if not, why not? Is there any reason why Jersey or Guernsey could not introduce the fourth protocol in local Bills, even if the UK does not?
I am afraid that I have spoken for too long, so I shall bring my remarks to a conclusion. Many other hon. Members want to participate in the debate and give their views on offshore havens—those curious offshore anomalies. I know that my right hon. Friend is interested in and concerned about the issue. He has demonstrated his concern by initiating an inquiry into the regulatory regime. I hope that he will rush to accept my amendment, so that we can get the matter over with without delay or backsliding from the islands. If not, I hope that he has bankable assurances from the islands that they will legislate for themselves if he is anxious to maintain the convention. In my view, it is not necessary to do so because I want the rights of the masses of ordinary people in the islands—not those of the elite, who can take care of themselves—to be protected, so that we can make the islands fit for people, not just for money.
§ Mr. MaclennanThe hon. Member for Great Grimsby (Mr. Mitchell) has raised a valuable issue. In another place, my noble Friend Lord Lester of Herne Hill gave my party's view, which is broadly sympathetic to the hon. Gentleman's objectives, and we support the principle of incorporation for the offshore dependencies. It is not necessary to go into all the circumstances that he has adduced in support of his argument, or even to adopt his reasoning. However, there is no doubt about our ability to do what he suggests.
§ Mr. MitchellI omitted to express my indebtedness to Lord Lester, who wrote the amendments and provided me with helpful support and advice. I am grateful to him. I thank the right hon. Gentleman for giving me the opportunity to say that.
§ Mr. MaclennanIn turn, I am grateful to the hon. Member for Great Grimsby, as my noble Friend will be.
This country's obligation to take the rights of those living in those dependencies seriously is undoubted. How that is done—whether in the Bill or by the legislatures of the islands themselves—is of secondary importance. What is crucial is that it be done. The hon. Member for Great Grimsby has said that it is likely that it will be done within the islands, or at least that such an intention has been expressed, and I am advised that it is at least probable. That would not necessarily have happened if the issue had not been pressed, as it has been by the hon. Gentleman, and if the House had not expressed strong concern about regularising the position.
471 I do not doubt that one point that surprises many other countries about our adherence to the convention is that we did not long ago provide domestic remedies designed to give effect to the convention rights. Equivalent legislation was certainly passed in all the other signatory countries. It would be highly anomalous if the islands were to remain outwith the convention scheme under which domestic remedies are made available to give effect to the rights. I hope that that view will have been heard in all the islands and that we shall have no more Manx birching cases being contested in Strasbourg, because they can be handled in Douglas.
§ Mr. StrawI am grateful to my hon. Friend the Member for Great Grimsby (Mr. Mitchell) for tabling the amendments and raising this important issue, just as the Government were grateful in the other place for the way in which Lord Lester raised the matter there.
As we have heard, the amendments would apply the Bill's provisions in various ways to the Channel Islands and the Isle of Man. My hon. Friend has pointed out that the United Kingdom is obliged to ensure that the islands comply with the convention and that there is a right of individual petition to the convention institutions in Strasbourg in respect of the islands, but that the convention does not at present have effect in their domestic law. I am happy to tell the Committee that the island authorities have made it clear that they want to bring rights home to the islands, just as we are doing in the United Kingdom.
Before I move on to the detail of that, it may assist the Committee if I say something about the constitutional relationship between the United Kingdom and the islands. That was set out in detail in the report of the royal commission on the constitution in 1973—the Kilbrandon report. My hon. Friend referred in particular to paragraph 1494 and the conclusions in paragraph 1513.
Briefly, the conclusion of the Kilbrandon report is that the United Kingdom Government are responsible for the defence and international relations of the islands, and the Crown is ultimately responsible for their good government. It falls to the Home Secretary to advise the Crown on the exercise of those duties and responsibilities. The United Kingdom Parliament has the power to legislate for the islands, but it would exercise that power without their agreement in relation to domestic matters only in the most exceptional circumstances.
A domestic circumstance that also affected all the countries that make up the United Kingdom—and, to some extent, had international effects—which was cited at length in the Kilbrandon report, was the issue, which those of us of a certain age remember only too well, of the so-called pirate radio stations that were set up off the shore of the Isle of Man in the early 1960s. Some of us still remember the catch tune of Radio Caroline. Much of the noise harassment that some of us now suffer could be said to have flowed from that experiment. Those were exceptional circumstances: legislation on domestic matters usually takes the form of laws enacted by the island legislatures, although they are subject to endorsement by me as Secretary of State for the Home Department and by the Privy Council.
United Kingdom laws are sometimes extended to the islands with their agreement. We consulted the island authorities about the extension of the Bill to them. All 472 three said that they did not wish it to be so extended, and, as we want to maintain satisfactory relations with the islands, we paid careful attention to their views, as always.
The Committee will be glad to know that my noble Friend Lord Williams, the Minister with responsibility for the Channel Islands and the Isle of Man, has undertaken a series of visits to find out from the island authorities what plans they have in the human rights field. I am pleased to say that their responses have all been positive. Each of the island authorities has made clear its intentions with respect to the Bill and the incorporation in its domestic law of the European convention. I have placed copies of their public statements and letters in the Library and have made them available to the official Opposition, to the Liberal Democrats and to my hon. Friend the Member for Great Grimsby.
It is worth pointing out that Jersey has fairly said that, six years ago, under the previous Administration, a proposal that the island should enact legislation to incorporate the European convention was raised with Home Office officials and was discussed informally with the Secretary-General of the Commission in Strasbourg. The island's Attorney-General was informed at that time by officials that the Home Office did not favour the island acting in advance of the United Kingdom, so the matter was shelved. Consultation goes both ways, and the previous Government, for reasons that I understand, but do not agree with, decided that they did not want incorporation of the convention in the United Kingdom of Great Britain and Northern Ireland, and asked the island authorities to follow suit.
The Bailiff of Jersey has now made it clear that the insular authorities
wish to confirm their previously declared intention to progress the matter of legislation to incorporate the European Convention on Human Rights into Jersey law, having regard to the particular circumstances of the Island, once the United Kingdom Bill has completed its progress through Parliament in Westminster.The Bailiffs letter goes on:The Insular Authorities confidently expect to have a draft law with the Home Office for pre audit in the normal way by the end of this year.The States of Guernsey issued a public statement on 22 May. The President of the Advisory and Finance Committee said:The States Advisory and Finance Committee intends to recommend to the States of Guernsey that legislation be enactedto incorporate the convention—having regard to the particular circumstances of the Island".He said that, once the Bill has become law, recommendations will be laid before the States of Guernsey. He added:The Committee is confident that it will be possible to submit a draft law to the Home Office for pre-audit before the end of this year.In December 1997, the Isle of Man made it clear that it intended to introduce legislation to give effect in Manx law to the convention on human rights. It says:Before any Government Bill is introduced in the House of Keys, a draft is always sent to the Home Office for their comments, if necessary after consultation with other United Kingdom Departments, and appropriate measures are taken to consult local interests.In the light of those statements, I hope that the Committee will recognise that the Governments of each of the three islands are committed to introducing 473 legislation fully to incorporate the European convention into their own law and to consult me, my officials and the Government more widely on the precise terms of that incorporation.I believe that that is a satisfactory outcome.
§ Mr. Jim Cousins (Newcastle upon Tyne, Central)Will my right hon. Friend give way?
§ 11 pm
§ Mr. StrawOf course, in a moment.
I hope that, in the light of those clear undertakings, my hon. Friend the Member for Great Grimsby will see fit to withdraw the amendment.
My hon. Friend asked whether any of the island authorities could incorporate into their domestic law the fourth protocol of the convention, even though it is not being incorporated into the Bill. The answer is that they cannot incorporate any part of the convention that the United Kingdom and the Crown, as high contracting party to the convention, have not accepted. That important part of our relationship with the islands gives the Crown and the United Kingdom Parliament ultimate authority over them we, and not they, enter into all international obligations, which are then binding on the islands.
That said, it would none the less be open to each of the island authorities and Parliaments, should they want to, to write the terms of the fourth protocol, or of any other protocol not incorporated into the Bill, into their domestic law.
§ Mr. CousinsMy right hon. Friend's remarks have been extremely helpful—indeed, fascinating—but may I draw his attention to the fact that the third protocol of the treaty of accession to the treaty of Rome, which was passed by the United Kingdom Parliament, specifically exempts the Crown dependencies from participating in the European Union for the purposes of people, finance and capital? They participate in the EU solely for the purpose of movement of goods for trading. Is he satisfied that the rather anomalous position of the Crown dependencies within the EU provides the right constitutional foundation for fully satisfying the terms of the Bill?
§ Mr. StrawMy hon. Friend raises an interesting point. I shall not detain the Committee, because we are due to finish this business in 10 minutes, except to say that, as part of the somewhat onerous duties of the presidency of the European Union, I spent two and a half days in Brussels last week as President of the Justice and Home Affairs Council. A lot of time was devoted to the extent to which the islands were subject to various treaties under the treaty of Rome. We are dealing with a convention arising not under the treaty of Rome and the European Communities treaties, but under the Council of Europe, of which we have been a member for many more years than we have been a member of the European Communities.
The position in respect of the European Union and the islands is complicated, not only because of what the islands desire, but because of difficulties for Gibraltar and other places—not dependencies of the United Kingdom—over how such territories should be dealt with in those treaties. Similar problems arise in respect of Spanish dependencies, for example, but in the Justice and Home 474 Affairs Council last week, we agreed that a convention on a European judicial network should apply to the islands. That will not directly impose obligations on them, but will give them some discretion.
As we had been unable to consult, I did not accept a proposal from other member states that the islands should, without consultation, be made subject to the Eurodac convention on the fingerprinting of asylum seekers and illegal immigrants, and to the convention on driving disqualifications.
Sark has been referred to. I had to point out to some colleagues in the Justice and Home Affairs Council that, whatever else one may worry about on Sark, driving disqualifications should not keep us up all night. As I think the Committee famously knows, there is only one vehicle on Sark, which I understand is a Daimler.
In the light of what I have said, and the clear undertakings given by the island authorities, I hope that my hon. Friend will seek leave to withdraw his amendment.
§ Mr. Michael Fabricant (Lichfield)I speak, as a good Tory grammar school boy—not, as the hon. Member for Great Grimsby (Mr. Mitchell) suggested, a Tory public school boy—to support the Home Secretary in his opposition to the amendments. I thought it particularly sad that the hon. Member cited the Marine, etc., Broadcasting (Offences) Act 1967 as a reason why Parliament should impose legislation on the states of Jersey and Guernsey and the House of Keys. The 1967 Act had a direct impact on me, although I was very young at the time. I remember who introduced the legislation: the notorious John Stonehouse, the then Postmaster General.
One of the reasons for my opposition to the implementation of the legislation on the islands is the fact of their independence. I felt that, in some ways, the hon. Member for Great Grimsby was rather xenophobic in his remarks about Jersey, Guernsey and the Isle of Man—although, of course, xenophobia is not the right word in this context, because it means a fear of foreigners. Those islanders are not foreigners at all; they regard themselves very much as part of the British isles, although not of the British isles.
I am not even convinced that whether those islanders choose to adopt the convention will make much difference. Two years ago, a constituent of mine, Stan Allsop, a truck driver, was arrested and held in France, which is a signatory to the convention. He was held in solitary confinement for 11 weeks. For five weeks, his wife, children and grandchildren were not even informed of his whereabouts. As my former right hon. Friend Malcolm Rifkind said to me at the time, France provided a marvellous example of habeas without the corpus. The convention clearly gave Mr. Allsop no protection.
I do not believe that the Bill will have any impact on the United Kingdom, which will accept it; nor do I believe that we should impose it on the islands of Jersey and Guernsey and the Isle of Man. To do so would not set a precedent, because such legislation was imposed on those islands when the 1967 Act was implemented, but I think that, in the new generation that has grown up over the past 10 years, the Bill creates a dangerous precedent. The islands have secured independence; we have chosen not to involve them in our law, and I think that to do so now would be wrong.
475 We should also remember the islands' special place in the European Union. They are not part of the EU as such; they have independence in the sense that they are not part of the customs union, and we respect that. I think we should say that they should either be incorporated totally in the EU, or not at all. To do it piecemeal would be completely wrong. Whether the Home Secretary is right to induce them to absorb the convention is for the House of Keys and the Jersey and Guernsey Parliaments to decide, but I feel that it should be their decision and not that of the Committee. For that reason, I oppose the amendments.
The long catalogue of personal objections raised by the hon. Member for Great Grimsby about why Jersey, Guernsey and the Isle of Man should have the legislation imposed on them seemed to be more related to personal slight by agencies or spin doctors than to any legal reasons. I therefore oppose the amendments.
§ Mr. MitchellI am grateful to the hon. Member for Lichfield (Mr. Fabricant) for sharply stating his objections. I am also grateful to my right hon. Friend the Home Secretary for his good reply, and I commend him for the efforts that have been put into persuading the islands to pass the legislation in their own way. I would prefer it to be done our way because that avoids delays, which will occur, and any backsliding, which might occur. I trust the Home Secretary more than I trust some legislators. Guernsey had to be pushed into this fairly rapidly.
The image of the islands might be "Bergerac", but the reality is lax financial and tax regulation which gives rise to scandals such as money laundering and BCCI. Some day, we shall have to grasp the nettle of this so-called independence. I am grateful to the Home Secretary, and I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 ordered to stand part of the Bill.
§ To report progress and ask leave to sit again.—[Mr. Kevin Hughes.]
§ Committee report progress; to sit again tomorrow.