INTERPRETATION OF CONVENTION RIGHTS

HC Deb 03 June 1998 vol 313 cc388-415 4.42 pm

Mr. James Clappison (Hertsmere)

I beg to move amendment No. 4, in page 2, line 2, leave out 'must' and insert 'may'.

The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)

With this, it will be convenient to discuss the following amendments: No. 5, in page 2, line 2, leave out 'take into account' and insert 'have regard to'.

No. 6, in page 2, leave out lines 5 to 10.

No. 7, in page 2, line 11, leave out 'whenever made or given'.

Mr. Clappison

The amendments raise important issues concerning the relationship between the jurisprudence of the European Court and the way in which United Kingdom courts will apply the convention after incorporation. Clause 2 deals with the way in which UK courts determine questions relating to convention rights and take account of the relevant jurisprudence from the commission, the European Court of Human Rights and the Committee of Ministers.

Under clause 2, a United Kingdom court or tribunal, in determining a question that has arisen in connection with a right under the European convention, must take into account"— I use the words of the Bill, as it is important to be precise— any …judgment, decision, declaration or advisory opinion of the European Court as well as opinions and decisions of the commission and the Committee of Ministers. To be absolutely clear, I should say that when I refer to the commission, I mean not the Commission of the European Union, but the European Commission of Human Rights, which is the body that individuals alleging a breach of convention rights first approach. The commission plays an important role in the operation of the convention and is a quite separate body from the Commission of the European Union.

We wish to explore, through the amendments, the use of the phrase "must take into account". In particular, we wonder whether it is best suited to the purpose of defining the way in which United Kingdom courts should approach the jurisprudence emanating from the European Court of Human Rights and the commission. We are also concerned that the course that the Government are taking has the potential to cause problems in future.

Talking about potential problems is no reflection of our confidence in our United Kingdom courts; we have great faith in the quality of our United Kingdom judiciary, and we do not want to make life any more difficult than it need be. We feel that the phrase "may have regard to" in amendment Nos. 4 and 5 is more suited to the circumstances in guiding the relationship between United Kingdom and European law. To put it in broad terms, it more appropriately fits the bill.

In earlier debates on the Bill, we were rightly warned about the dangers of attempting to dance on the head of a pin. I shall not undertake to do that today. Let me spell out the difference between our amendment and the Bill as drafted. It is more than the width of the head of a pin, and we believe that, potentially, it could make the difference between putting our courts in an unnecessary straitjacket and giving them the flexibility to do what is right in the circumstances in which the convention is to be applied in the United Kingdom, if it is incorporated.

We believe that the phrase "may have regard to" would be better than what is in the clause—"must take into account". It is a matter of what is better suited to the circumstances. I must make it clear that, in tabling the amendments and making these comments, we are not seeking to rebel against the European Court, to cast ourselves adrift from its jurisprudence or, still less, to raise other matters to do with the European Court or any other European issues—far from it.

I should like to refer back to what the shadow Attorney-General, my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell), said in an earlier debate, when he identified three important points of principle. He said that we do not want the United Kingdom judiciary creating a separate body of law for the United Kingdom, which might go further than would the commission or the European Court at Strasbourg. We want our approach to be within the general framework of the jurisprudence of the European Court, but not to be too tightly bound by it. That is what our amendment seeks to achieve.

Against that background, let me make two further points. First, the European Court has adopted the margin of appreciation that has been for some time an established part of its jurisprudence and thinking. We acknowledge the importance of that feature, and we believe that it has played a valuable part in decision making by the European Court in the past. Implicit within the doctrine of the margin of appreciation is the proposition that the decisions of national authorities should be treated with a certain respect. National authorities are considered by the court to be in the best position to look at the requirements of public interest within their nations. Therefore, the court is prepared to give national authorities a certain amount of latitude in their national affairs. Of course the court must look objectively at the convention rights from state to state, but it does so against the background of some latitude for individual states in their own affairs.

The margin of appreciation is an established doctrine, but we shall hear more about it if the convention is incorporated, which is the will of the Government. We want the spirit of the doctrine of the margin of appreciation to be in evidence in United Kingdom courts. In the past, the European Court of Human Rights has shown some caution and conservatism. It has not always got it right, and I know that my hon. Friends and, perhaps, other hon. Members could easily think of decisions on some high-profile cases with which they disagree. That is bound to be the case, given the nature of the matters with which the court has to deal. However, it has always been right to approach matters with some caution. That general frame of reference is appropriate.

If the convention is to be incorporated, a degree of prudence and caution, together with respect for national values, will not be inappropriate for the UK courts when they apply the convention to the circumstances of our own country. No doubt our courts will, in the fulness of time, arrive at that view. We want the UK courts to follow the general approach of the European Court in those important respects. However, we want the European Court's decisions on the judgments of UK courts to be persuasive rather than prescriptive.

Clause 2 requires any … judgment, decision, declaration or advisory opinion of the European Court of Human Rights … whenever made or given to be taken into account.

As the Minister knows, we have tabled an amendment relating to the words "whenever made or given". We presume that the Government intend that to include judgments, decisions, declarations or opinions of the European Court in which the United Kingdom was not a party. We note the use of the word "any", so we make the straightforward assumption that the Government intend that all that jurisprudence should be taken into account in the way required in the Bill. I look to the Minister for confirmation of that, as he was looking slightly puzzled a moment ago. We believe it to be a straightforward assumption to make from the wording in the Bill.

That being so, it means that, in any cases involving any of the 40 countries across the length and breadth of Europe that are party to the convention, the judgments, decisions, declarations or opinions of the European Court or the commission would have to be taken into account by UK courts. It must follow from that that cases involving other parties to the European convention will not reflect a margin of appreciation for the United Kingdom. They may reflect a margin of appreciation for the country concerned, but not for us. The Bill says that our courts must take those decisions into account, so we must ask whether that is entirely appropriate. What may be right for other countries may not necessarily be right for the United Kingdom.

The Parliamentary Secretary, Lord Chancellor's Department (Mr. Geoffrey Hoon)

Such cases form part of the jurisprudence of the European convention, as the hon. Gentleman will know. I remind him that, when these matters were debated in another place, the Opposition argued that the Strasbourg jurisprudence should be binding on United Kingdom courts. Have the Opposition changed their view?

Mr. Clappison

The Minister makes a mistake by taking too partisan an approach to these matters. We are seeking to explore the margin of appreciation. I hope that he paid close attention when I made it clear that we commended the generally cautious, conservative approach of the European Court, and he will know that that has been widely recognised by commentators. We do not seek to rebel against that, but we need to explore how the Bill will require the margin of appreciation that may be taken into account in decisions by the European Court on other countries to be dealt with in our courts when they consider the decisions and judgments of the European Court. That is an entirely legitimate concern, and we were right to explore it in the other place and here.

I shall come shortly to some important remarks made by the Lord Chancellor. The Minister is the Lord Chancellor's spokesman, and may be able to intervene on those. We are trying to explore important arguments for being within the reach of the European Court, but not being bound too tightly by its decisions. As the Minister has fallen into the habit of drawing on what was said in the other place, let me tell him what his noble Friend said. Having given him a sneak preview of my intention to mention those remarks, let me give him a slight surprise: I rather agree with the Lord Chancellor's sentiments, although not perhaps with his oft-expressed enthusiasm for the terms in which the Bill is drafted and in which he has taken some pride.

Perhaps the Lord Chancellor's spokesman would like to pay close attention to the Lord Chancellor's words. He said: There may also be occasions when it would be right for the United Kingdom courts to depart from Strasbourg decisions. We must remember that the interpretation of the convention rights develops over the years. Circumstances may therefore arise in which a judgment given by the European Court of Human Rights decades ago contains pronouncements which it would not be appropriate to apply to the letter in the circumstances of today in a particular set of circumstances affecting this country…The United Kingdom is not, of course, bound in international law to follow the court's judgments in cases to which it has not been a party and it would be strange to require courts in the United Kingdom to be bound by such decisions."—[Official Report, House of Lords, 19 January 1998; Vol. 584, c. 1271.] We agree with those sentiments, but must question how well the drafting of the Bill reflects them. Juxtaposed with those sentiments, the drafting of the Bill, which we seek legitimately to explore, looks a little rum.

First, we need to explore what our courts are intended to understand by the phrase "must take into account". It was said in another place that those words would permit UK courts to depart from existing Strasbourg decisions and that, on occasion, it might be appropriate to do so and the courts might give a successful lead to Strasbourg. Those words were spoken by another Minister in the other place. We are happy with that. Indeed, it may be recalled that, in our earlier debates, my right hon. and learned Friend the shadow Attorney-General made it clear that, whatever other reservations we might have, one of the benefits of incorporation is that British judges would have an opportunity to have an input into the fashioning of convention law. That is all well and good, but the Government have not yet been sufficiently clear on what they intend by the phrase "must take into account".

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If those words are not binding—we take it that they are not—the Government must spell out more clearly the nature and extent of the circumstances in which United Kingdom courts may choose not to follow Strasbourg decisions. The Government apparently contemplate that UK courts would be permitted to depart from Strasbourg decisions when there had been no precise ruling on the matter in question. Such an example was given by the Lord Chancellor in the debate on this clause in the other place. What about cases in which there has been a precise ruling by Strasbourg? Do the words "must take into account" mean that UK courts must follow to the letter rulings in cases in which the court or the commission has made a judgment, decision, declaration or opinion in the relevant circumstances? Do our courts have to follow them at all?

Will the Minister say whether UK courts may depart from such decisions when there has been a precise ruling by Strasbourg? The matter was left unclear when it was debated in another place. It is important for the future and for our courts that we know the Government's position. It is all very well to say that our courts can feel free to go their own way when there is no precise ruling from Strasbourg, but what about cases when there is?

Mr. Hoon

The hon. Gentleman knows the answer to his question. The answer is clear: it is for the independent judgment of a court to resolve the issue before it. Nothing that can be said here will affect that independence. I am surprised to hear him pursue that argument, because, by doing so, he seeks to fetter that independence. If a court arrives at an apparently incorrect decision, there is the prospect of an appeal, which ultimately could end up in the court in Strasbourg. Those matters are routinely resolved before the courts every day of the year. The hon. Gentleman seeks to go into a logical cul de sac from which there is no exit.

Mr. Clappison

The Minister is making too much of the matter. I simply wish to explore what was left unclear in another place. I hope that he will give a more considered response later in view of the way in which the matter was left in the House of Lords, because it will not do as it stands. The Minister must deal with the question: what is the effect on United Kingdom courts if there is a precise ruling from Strasbourg on a matter that a UK court seeks to determine in this country?

The Minister must give a better answer than he has given so far. It is no use trying to remit the issue to the courts in a general way, by saying that we shall leave it to the courts' good judgment. The Government have already gone so far as to say that our courts need not feel bound when there is no precise ruling from Strasbourg—they went that far in another place, in a more considered response than the Minister has just given—but what about cases when there is a precise ruling? What do the words "must take into account" import in those circumstances?

I realise that the Minister is impatient to get on with the Bill, but he must give the matter a little more consideration. It is an important issue for the future. We want to guide our courts appropriately, as much as we can.

I hope that the Minister will not take my remarks as an implied attack on the European Court. As I have made clear, we welcome the cautious approach that it has often taken. However, we note a word of warning given in another place by the noble Law Lord, Lord Browne-Wilkinson, who, while praising the record to date of the European Court, said: a major change is taking place. We are now seeing a wider range of judges adjudicating such matters, a number of them drawn from jurisdictions 10 years ago not famous for their observance of human rights. It might be dangerous to tie ourselves to that".—[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 513.] As that warning comes from such a source, we should be wise to take it on board.

I move on now to amendment No. 6. Clause 2 requires United Kingdom courts in certain circumstances to take into account decisions of the commission and the Committee of Ministers. I want to explore two points. First, is it the Government's intention to require the courts to give the same weight to decisions of those bodies as to those of the European Court? Again, I make it clear that I mean no disrespect to the commission, which I appreciate is of a high calibre and carries out valuable work. However, we need to consider whether it is right in effect to give the commission parity of esteem with the European Court, as the Bill apparently does. Clause 2 puts the commission on the same footing as the court. Is that the signal that the Government mean to send out?

My second point concerns the potential problem when the European Court arrives at a different view from the commission. Under article 31, which is mentioned in clause 2(1)(b), the commission will, in a matter where it has been unable to bring the parties to a friendly settlement, draw up a report and give its opinion as to whether there has been a breach. That, of course, is standard procedure. I apprehend that subsection (1)(b) requires a United Kingdom court to take into account such an opinion even though the European Court has yet to give a view. No doubt the Minister will correct me if I am wrong.

On that basis, what will happen if the United Kingdom court takes the commission's opinion into account and the European Court, also having taken into account that opinion, comes to a different conclusion, which is not altogether unknown? That would appear to be a possibility. I assume that the Government have thought that through. Will the Minister tell us what will happen in those circumstances?

There are a number of potential dangers, and our amendments reflect our concerns. We seek a constructive and considered response from the Government. They know that the courts will in future consider carefully what is said about the Bill, and the Government owe it to the courts to get it right. If the convention is to be incorporated, we want a genuine partnership between Parliament and the courts. I shall say more about that later. If we are to do our job right by the courts, we must not leave them in a difficult and uncertain position on the relationship between European jurisprudence and the decisions that our courts must make in considering cases involving breaches of convention rights. Those are serious issues, and we look to the Government for a considered response.

Mrs. Theresa May (Maidenhead)

Unlike, I suspect, the majority of hon. Members present, I am no lawyer, so terms such as "margin of appreciation" and legal terms will not trip easily off my tongue.

As my hon. Friend the Member for Hertsmere (Mr. Clappison) made clear, this is an important issue, concerning the relationship between the jurisprudence of the court in Strasbourg and the position of the courts in the UK, and the extent to which our courts have flexibility in interpreting that jurisprudence in applying decisions in the UK. That is obviously relevant to us all.

I suspect that the Minister, in his response, will refer to the fact that we have approached the matter from two different angles in the debate in the other place and in this debate. Our approach is entirely reasonable, because we are trying to tease out from the Government the degree of flexibility that they intend UK courts to have. In response to the amendment moved by the shadow Lord Chancellor in the other place, the Lord Chancellor made statements about the Government's intentions. His remarks suggest that the Government's position is perhaps closer to our amendments than the Minister's intervention implied. It will be interesting to see whether the Government are willing to accept these amendments, because they put into effect the intention of the Lord Chancellor's words.

The Lord Chancellor said in the debate in the other place: There may also be occasions when it would be right for the United Kingdom courts to depart from Strasbourg decisions. We must remember that the interpretation of the convention rights develops over the years. Circumstances may therefore arise in which a judgment given by the European Court of Human Rights decades ago contains pronouncements which it would not be appropriate to apply to the letter in the circumstances of today in a particular set of circumstances affecting this country … The United Kingdom is not, of course, bound in international law to follow the court's judgments in cases to which it has not been a party and it would be strange to require courts in the United Kingdom to be bound by such decisions."—[Official Report, House of Lords, 19 January 1998; Vol. 584, c. 1271.] Those remarks reflect the comments made by my hon. Friend the Member for Hertsmere and suggest that the Government intend to provide the flexibility proposed in amendments Nos. 4, 5, 6 and 7.

Amendment No. 7 is particularly relevant, because it deals with clause 2, which provides that the courts must take into account any judgment or decision "whenever made or given". The Lord Chancellor's remarks make it clear that it would be inappropriate to suggest that decisions taken a considerable time ago are of relevance today. Amendment No. 7, which would remove the phrase "whenever made or given", would put his remarks into effect so that courts would not have to take account of past decisions regardless of their relevance.

Mr. Hoon

Is not that precisely what the straightforward English expression "take into account" means?

Mrs. May

We have tabled these amendments to find out what the Government mean by the phrase "take into account". By providing that these issues should be taken into account, the Government are placing a greater emphasis on the courts following those rules and judgments than they intend. I seek from the Minister a clearer definition of "take into account".

We should consider amendment No. 7, especially in the light of the Lord Chancellor's comments. It would give his remarks and the Government's intentions immediate effect. If the Government accept any of the amendments, I hope that they will accept amendment No. 7.

Other provisions of clause 2(1) are also of concern. Amendment No. 6 deals with the opinions and decisions of the commission and the Committee of Ministers. If there is to be flexibility, the courts should not be required to take into account or to have regard to opinions. They are merely opinions of the commission and have not yet become judgments or decisions. Our amendments are about the extent of the flexibility and independence of courts in this country to be able to interpret the convention. The courts should not be required to take into account matters that have not yet been decided.

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My hon. Friend the Member for Hertsmere dealt most ably with amendments No. 4 and 5. We look forward to hearing the Government's interpretation of those issues. Notwithstanding the Lord Chancellor's comments, the requirement that these matters "must" be taken into account rather than "may" be taken into account, regardless of whether a decision has been made or whether an opinion has become a decision, implies a degree of inflexibility. The Government's pronouncements on the issue suggest that that is not their intention.

I hope that the Minister will consider our amendments as sympathetic to the Government's stated intentions. They try to improve the wording of the Bill, to give greater effect to the Government's intentions. The purpose of these important amendments is to tease from the Government clarification of their intentions with regard to the flexibility of the courts. I support the amendments, because they would provide the flexibility that the Government intend.

Mr. Douglas Hogg (Sleaford and North Hykeham)

I support the amendments. It is entirely right that the courts should have flexibility when taking into account or having regard to the judgments and opinions described in clause 2. It is important that we should make it plain that the courts are not bound—that is to say, not obliged—to implement decisions made in other jurisdictions, previous decisions of the court or the opinions of the commission. I believe that it is the Minister's intention that clause 2 should not impose on the courts of the United Kingdom an obligation to be bound by such judgment, decision or opinion. It would be extremely helpful if he would make that wholly plain. The purpose of the amendments ably moved by my hon. Friend the Member for Hertsmere (Mr. Clappison) is to give the Minister an opportunity to do that.

I have no objection to the word "must", but I do not particularly wish to see the word "may" incorporated in the legislation. In this context, it is right that the courts of the United Kingdom should take into account the stated decisions and opinions, although it is for the courts to determine their relevance and appropriate weight.

I dissent from the Government's proposal to give equality of weight to the judgment of the European Court and the opinion or decision of the commission and the decision of the Committee of Ministers. A difference of weight should be given to the judgment of the European Court on the one hand and to the opinions and decisions of the commission and the Committee of Ministers on the other. The problem with the drafting is that no distinction is made in the Bill, and I regret that. The Bill gives all decisions equal weight, and I fancy that that is a mistake.

This has been a useful probing debate, because the Government can make wholly plain what I believe to be their intention: that the courts are not bound by the decisions and opinions referred to in the Bill. I hope that the Minister will say just that.

Mr. Dominic Grieve (Beaconsfield)

I am happy to participate, I hope reasonably briefly, in the debate.

Having read clause 2 a number of times reasonably carefully, I have little to disagree with. The difficulty, and the reason why my hon. Friend the Member for Hertsmere (Mr. Clappison) has properly proposed probing amendments, is that there is bound to be anxiety about the way in which the courts will operate in practice.

My understanding of what is intended—the Minister will doubtless disagree with me if I have got it wrong—is that the wording in clause 2 is designed to give a court or a tribunal discretion in applying the various areas of the decision making—the jurisprudence—of the European Court of Human Rights, or of other bodies similar to that of an English court applying the decision making of other common law jurisdictions. That is how I interpret it. Therefore, there would be wide discretion, and, I would also infer, the operation of the margin of appreciation as to whether such decisions are relevant to the particular circumstances, which the European Court has to determine in so far as they relate to the United Kingdom.

Clearly, the anxiety is whether the wording is correct and will provide that measure of discretion. I share the view of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) that the use of the word "must" as opposed to the word "may" is perfectly appropriate in particular circumstances to enable the court to do that.

I have further anxiety about two points. I do not want to exaggerate their effects, but I shall probe the Minister about the intention behind the inclusion of two specific references. First, the words "whenever made or given" appear in clause 2(1)(d). I infer that that is surplusage: the words are unnecessary because, by their very nature, decisions by bodies referred to in clause 2(1)(a), (b), (c) and (d) will be relevant, irrespective of when they were made or given, but the Minister may be able to persuade me otherwise.

Applying sensible English common law principles, less weight will be attached to a decision that is old, pertains to matters that have been passed by the march of events and has been doubted somewhere else than to a more recent decision. Will the Minister clarify why those words were specifically included? There may have been a desire that people should not think that only decisions made subsequent to the passage of the Bill would be affected. That may be the answer, and I should be interested to hear from him on that point.

The other issue that puzzles me a little is the way in which different decision-making bodies are lumped together in clause 2(1)(a), (b), (c) and (d). The oddest is subsection (1)(d), which states: decision of the Committee of Ministers taken under Article 46 of the Convention". As I understand it, article 46 provides a mechanism by which extra structures can be added to the convention. It states: Any of the High Contracting Parties may at any time declare that it recognises as compulsory ipso facto and without special agreement, the jurisdiction of the Court in all matters concerning the interpretation and application of the present Convention. The declarations referred to above may be made unconditionally or on condition of reciprocity". That does not have much to do with the development of jurisprudence. Has it not rather more to do with the extent to which the international obligations of the parties may be extended? Therefore, I find it odd that that should appear amid what otherwise appear to be matters of jurisprudence. The Minister may be able to answer that point.

Having thought about the different weight being given to a judgment or an opinion or a decision of the commission, I am not as concerned as some of my hon. Friends. The key issue in clause 2 is the meaning of the words "must take into account". The clause revolves around that. It has been suggested that the words "have regard to" might be better, and, as a term of art bandied around in the courts, they would trip off the tongues of lawyers rather more easily than "taking into account". Having thought about it carefully, I consider that there is no difference between them.

It is worth bearing in mind, however, that Law Lords continually say that they or the court should "have regard to" something, so a wise draftsman might have regard to those words. I simply invite the Minister to say whether that point has been considered. Save for that, clause 2 should enable the courts to have the necessary discretion to apply the convention while not being fettered slavishly by it. I hope that he will confirm the generality of what I have said. Provided that that can be achieved, clause 2 as drafted, or even if the amendments were accepted, would still do the same job.

Mr. Edward Leigh (Gainsborough)

At first sight, the debate may seem to involve lawyers dancing on the head of a pin and talking about whether we "may" or "must" take account of the jurisprudence of the European Court of Human Rights or whether we should be bound by it. Anyone listening to our debate would wonder what on earth we are going on about and why it is so important. Before the Minister nods too vigorously, I shall explain why the debate is important.

We had a lengthy debate a couple of weeks ago on the impact of the Bill on religious liberties, Church schools and the rest. The constant refrain of the Secretary of State for Scotland, who summed up for the Government and replied to the points made by me and other hon. Members, was, "I don't know what hon. Members are going on about. The convention has been around since 1951, and if it was such a threat to religious liberties or to Church schools, and if people were going to take organisations to court, that would have happened a long time ago." The problem is that the jurisprudence of the European Court is limited. I have the figures: of the 45 applications to Strasbourg on article 9, only five have been allowed to proceed to the European Court. The article 9 point is important, because the Government have constantly argued that it will protect conventions. The point that I have made all along is that the jurisprudence is weak.

The Minister has had a bit of fun today, because he has obviously read the debate in the other place, as I have. He maintains that Conservatives there argued that we should be bound by the jurisprudence of the Strasbourg court, while we are saying the opposite. Leaving aside the fact that we are perfectly entitled to probe the Government, the reason for that is that many of us are fundamentally unhappy about incorporating the convention and are unhappy about the Bill. We believe that it is virtually impossible for the Government to resolve the dilemma.

Let us assume that we go down the route advocated by my noble Friend Lord Kingsland, the shadow Lord Chancellor. He made the sensible point, with which I agree, that, if we are to protect our religious liberties, we should give more cognisance and more authority to the jurisprudence of the European Court, because it has been conservative in moral, social and religious matters.

I think that Lord Kingsland's argument was entirely justifiable. The Lord Chancellor disagreed, and said that our judges would be bound too closely. However, Lord Kingsland's argument—and my argument—is that we are in danger of not simply incorporating the convention in our law, but going much further. What we are creating is an entirely new Bill of Rights. We are giving our judges—who, under clause 2, must "take into account" the matters specified—considerable flexibility in how they interpret the convention.

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My hon. Friends and I have referred to religious liberties, and the threat that the convention might pose to Church schools and other religious charities. The European Court has been very conservative, and, for that reason, the jurisprudence is very limited. The European Court has constantly applied the margin of appreciation, telling people that the cases that they have brought to it are really matters for the national courts.

Our judges, however, will not be bound by the European jurisprudence, and we anticipate a rash of cases of the kind that we were discussing a couple of weeks ago. An example is a Catholic school being taken to court because it has dismissed a head teacher following her divorce. We feel that our judges, rather than being in the conservative mould of the European judges, might go much further, and that there could be a real threat to religious freedoms.

That is why I consider Lord Kingsland's argument perfectly logical. The problem is that anyone wishing to advance such an argument must be pretty pro-Europe. The Lord Chancellor teased his shadow, accusing him of being "Janus-like". Another Law Lord who has already been mentioned—I think it was Lord Browne-Wilkinson—disagreed with the amendments that we were pressing in the other place. His point, which I think has already been referred to, was that the European Court had been much expanded, and now contained judges not just from western Europe but from central and eastern Europe. Some of those countries do not have our long traditions of freedom.

Mr. Edward Garnier (Harborough)

I think Lord Kingsland's point was one that he made on Second Reading last November. He feared that the jurisprudence of the European convention, and of the Court in Strasbourg, would not be exactly replicated in the decision making of British judges. I think he said that it would not be "an exact photograph".

Mr. Leigh

I am grateful to my hon. and learned Friend. The visual image conveyed by the phrase "an exact photograph" is very powerful.

Mr. Hogg

I have listened to my hon. Friend with great interest and some surprise. As I understand it, he is saying that he feels safer with the interpretation of the convention by the European Court than with the prospect of its interpretation's being at the discretion of our judges. That is a most unusual position for my hon. Friend to adopt, and I am anxious to confirm that I have not misunderstood him.

Mr. Leigh

My right hon. and learned Friend, with his piercing intellect and acute mind, has gone to the heart of the difficulty that I face. He is, of course, absolutely right. I am afraid that there is no easy way out of the dilemma, except to reject the Bill entirely, which we are not going to do—or, rather, the House of Commons is not going to do. We must try to argue our way out of the problem.

As my right hon. and learned Friend implied, given the track record of the European Court's jurisprudence over the past 50 years, I have more confidence in it than in the jurisprudence that may develop in our own courts.

Mr. Hoon

Perhaps I can help the hon. Gentleman. Does he believe that the Conservative party should reject incorporation?

Mr. Leigh

My personal view, which I have argued all along, is that we should reject it. Along with those of my hon. Friends who, like me, have a particular interest in religious liberties, I have said that we are going down a very dangerous route.

Mr. John Bercow (Buckingham)

I hope that my hon. Friend will not be self-effacing about his opposition to incorporation. It is extremely robust, very articulate and widely shared.

Mr. Leigh

My hon. Friend is typically generous. I claim no particular virtue in opposing incorporation, except to make a general point. I believe that, over many centuries, our country has developed a rigid demarcation between the role of judges, which is to interpret the law, and the role of Parliament, which is to make the law. Those of us who oppose incorporation do so because we believe that judges will be given a new, expanded role that will eventually politicise them in the way in which they have been politicised in the United States.

Mr. Hogg

As this is a Committee stage, I hope that I shall be forgiven for intervening again—and, no doubt, again and again.

I know the background from which my hon. Friend comes, and I know that he is concerned about the religious issues raised by the convention. May I suggest, however, that while his conclusion that he is safer with the European judges' interpretation of the convention may be justified in the context of religious freedoms, it is not justified in the wider context?

I am sure my hon. Friend will agree that the judges of the European Court have extended the convention well beyond what the founding fathers originally contemplated, in, for instance, the sphere of unusual punishments. I suggest that, because of his concern about one particular point—religious freedoms, and what has been done in the European Court to safeguard them—my hon. Friend has reached the general conclusion that he is safer in the hands of the European Court than in those of the courts of England and Wales.

Mr. Leigh

My right hon. and learned Friend may be making a valid point. I hope that he will not mind if I see my role in this short debate as that of spokesman for religious organisations. As he will know, there is a great deal of concern, especially in the religious press and among religious organisations such as the Roman Catholic and Anglican Churches. Those bodies need to be reassured, and I therefore thought it important to mention them today, as I did a couple of weeks ago.

Mr. Clappison

My hon. Friend has moved on to important terrain. Religious organisations will be looking for protection from the European Court, within the conservative frame of reference that we have been discussing. As they will no longer have an absolute defence, as the Lords Committee voted to take it out of the Bill, will they not now look for a certain amount of judicial self-restraint from judges in this country and in the European Court to protect them from the vexatious litigants that many fear will follow decisions that we have already made?

Mr. Leigh

My hon. Friend makes an important point, and I hope that the Minister will make a similar point. There are vexatious litigants waiting out there—people with an anti-Church agenda. I assume that the Bill will be passed as it is now drafted, given the parliamentary arithmetic. Our judges will therefore not feel bound by the conservative jurisprudence that has developed in Europe over the past 40 or 50 years. They will have to apply many self-denying ordinances to ensure that they do not go down a dangerous route. I can see no way out of the dilemma. If the Bill is enacted, our judges may be bound by European jurisprudence. I do not want that, because I have great confidence in our judges.

Mr. Oliver Heald (North-East Hertfordshire)

I do not accept that there is an argument for the incorporation of the convention rights into English law, but if there were, incorporation would allow our judges to make decisions in the English context based on their interpretation of the convention. The argument continues that, if the matter proceeds to the European Court of Human Rights, at least the input of our judges will have been taken into account.

Does my hon. Friend agree that it would be extraordinary if our judges were bound by previous decisions of the European Court, the opinions and decisions of the commission and decisions by the Committee of Ministers, because one of the strongest arguments for incorporation is precisely that our judges can interpret the convention afresh?

Mr. Leigh

I presume that, if the Lord Chancellor were taking part in the debate, he would make a similar point. He would say that I do not have sufficient confidence in our judges and in the precedents that have developed over hundreds of years.

Our system is unique because our judges base their judgments on precedent, but there is no precedent in this case. We are opening a whole new area into which judges can walk—I shall not say wander, because that would be pejorative—and make new judge-made law. Under the fast-track procedure, an Order in Council may be used or the Government may decide that Parliament should accept such judgments and our constitution could be radically changed. That is why those of us who oppose incorporation are worried by the Bill.

Mr. Desmond Swayne (New Forest, West)

My hon. Friend brings us back to the dilemma. Our choice is between allowing European jurisprudence to continue or, as the Government have said, bringing it home to our judges. My hon. Friend expressed a preference for the more conservative jurisprudence of Europe, but is he confident that that will continue? Does he accept that many of us are reluctant to accept incorporation into English law because we believe that we would be better off renouncing our accession to the convention in its entirety?

Mr. Leigh

I do not know how European jurisprudence will develop. However, judging by recent history, it has taken the view, under margin of appreciation, that these matters are best dealt with by national courts. I understand that vexatious litigants who attack Churches and other religious organisations, charities and Church schools have had the door of the European Court shut in their face. That is why I have said that of the 45 applications to Strasbourg under article 9 only five have been allowed to proceed to the court.

My original point is important. The Secretary of State for Scotland made a fundamental error when he said, "Don't worry. The convention has been around for ages, and if there had been a problem dozens of schools would have been taken to court." However the European Court is international, and such courts have always locked their doors and said that such matters are best decided by national courts. We are moving into a new and dangerous area in which we will no longer have that protection. Judges will not be bound by the traditional, conservative jurisprudence of the Strasbourg court. There will be no other court to which they can refer such matters, and they will not be able to turn away vexatious litigants. They will be unable to say, "We cannot hear your case, and it would be better dealt with by another court." They will have to hear it.

By their nature, Church organisations are not rich. People put a few pennies on the collection plate, and they do not do so to fund expensive cases at the lower court, the Court of Appeal and the House of Lords. However, some vexatious litigants are well funded; that is why we are worried.

Mr. Garnier

I take it that my hon. Friend uses the expression "vexatious litigant" in the non-legal sense. Anyone who is deemed to be such a litigant would be shut out. I presume that he means a tiresome person.

Mr. Leigh

Perhaps I should not use that term. I should have referred to organisations that have particular agendas, are well funded and contrary to the Secretary of State for Scotland's assurances, will be able to take organisations to court. I hope that, in his winding-up speech, the Minister will deal with the worries of Church organisations.

5.45 pm

Mr. Hoon

I congratulate the hon. Member for Hertsmere (Mr. Clappison) on wringing every last nuance of alleged ambiguity out of the Bill's plain, straightforward English words. He was keen on the word "flexibility". As the hon. Member for Gainsborough (Mr. Leigh) said, I sought to expose the flexibility of the Opposition in the context of their attitude here and their attitude in the other place. I need not have troubled, because much flexibility was on display in Committee.

I am not sure whether any Opposition Member agreed with the hon. Member for Hertsmere, but I may be unkindly wrong. If I am, I apologise to the hon. Gentleman.

I shall deal with the matters that have been raised, but if any hon. Member feels that I have not done so thoroughly, I shall return to them. Clause 2(1) provides that a court or tribunal that is determining a question in connection with a convention right must take account of the relevant jurisprudence of the European Commission, the European Court of Human Rights and the Committee of Ministers whenever it was made or given. The purpose of the provision is to point our courts towards an interpretation of convention rights that is consistent with the interpretation in Strasbourg. In other words, we are bringing home the jurisprudence of the convention rights as well as the rights themselves. Amendment No. 4 would make taking those matters into account discretionary rather than mandatory.

Mr. Heald

Does the Minister agree that there are alternatives? One is to have uniform jurisprudence in this area throughout Europe, in which case the Bill as framed may suit. The other is that the United Kingdom courts can, in the circumstances of this country, make their own judgment and interpretation of the convention. Lord Browne-Wilkinson spoke about that distinction and said that uniform jurisprudence may not be in this country's best interests.

Mr. Hoon

With respect, the hon. Gentleman puts two different points. The words "take into account" have the precise meaning of his second point. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) also asked about this matter. The phrase clearly allows for Strasbourg jurisprudence not to be precisely followed but to be taken into account. That is the meaning of the English words.

Mr. Heald

The Minister chooses to stress the words "take into account", but the courts may take special account of the word "must". Does he agree that the words "must take into account" impose a heavy burden on the English courts to move towards uniform jurisprudence matching that of Strasbourg? That point was made by the noble Lord Browne-Wilkinson.

Mr. Hoon

The word "must" in this context clearly means that the courts must take into account the jurisprudence. That is what the words in English say. They do not mean that there has to be uniform jurisprudence. They mean that the courts must take the jurisprudence into account in reaching a decision.

Let me suggest what the effect of the discretionary word "may" will be. It will mean that our courts might produce, on the same set of facts, different results because some may take the jurisprudence into account and some may not. That can hardly be sensible when we are trying to promote consistency in the decision making of our courts. If we allow courts not to take into account the jurisprudence, we shall end up, on similar facts, with different results. That can hardly be satisfactory.

Mr. Hogg

I agree with much of what the Minister says, but may I probe the Government's position on this a little further? Ultimately, the Government will have in mind an objective. Is it their objective that, in the generality of cases, United Kingdom courts will follow the jurisprudence of the European Court and all the other decisions and opinions there stated, so that, in the generality of cases, the ways in which this country's courts interpret the convention will be shaped by the decisions made by the European jurisprudence?

Mr. Hoon

Clearly, it is important, because the UK is bound internationally by the convention's provisions, that our law should be consistent with the general provisions of the European convention. That is already the law of the UK in relation to the international position. The Government are seeking to incorporate those international obligations into our domestic law. Therefore, it is important, ultimately, that the law of the UK, as applied by UK courts, is broadly consistent with the jurisprudence of the Strasbourg court.

That is something which, if cases were pressed to their logical and ultimate conclusion, is already necessary. Having been bound internationally to satisfy the terms of the convention, there is an obligation on the UK, as a signatory state to the European convention, to translate those decisions into our domestic legislation, so there is no legal distinction between the position today and the position that will obtain once incorporation has taken place.

Mr. Heald

In his explanation, the hon. Gentleman seemed to argue that, if the factual basis of a case were the same in Greece as in Northern Ireland, Wales, Scotland or England, the outcome would have to be the same, on the basis of his present drafting. Is that really the situation?

Mr. Hoon

I did not say that, and the hon. Gentleman knows full well that I did not say that. I congratulate him on his ingenuity. What I said was that the Opposition amendment would lead to a situation where it would be possible for a court in one part of the UK to apply the jurisprudence of the Strasbourg court and a court in another part not to take it into account, producing different results on the same facts within the UK. That cannot be satisfactory. It is important that courts are consistent in the material and information that they take into account. That is why the Opposition amendment is defective, and it is clear from comments by certain Conservative Members that they recognise that fact.

Amendment No. 5 would require the court or tribunal to "have regard to" the convention jurisprudence, rather than take it into account. Like the hon. Member for Beaconsfield (Mr. Grieve), I do not think that there is any significant difference between "have regard to" and "take into account". I struggled hard, as he did, to see what the purpose of the amendment was. Like him, I have failed to find any distinction. The latter phrase is in the Bill, and I do not see why it needs to be changed.

Amendment No. 6 would retain the reference to the jurisprudence of the European Court of Human Rights, but remove the reference to the opinions and decisions of the European Commission of Human Rights and the Committee of Ministers. I believe that the domestic courts should, when determining questions in connection with the convention of rights, be required to take into account all relevant decisions of the Strasbourg authorities, rather than only those of the European Court of Human Rights.

Mr. Hogg

Will the hon. Gentleman be good enough to tell the Committee the extent to which the commission and the Committee of Ministers hear argument before expressing an opinion or making a decision? I simply do not know. Therefore, I do not know to what extent the decision results from the process of argument and debate.

Mr. Hoon

It is impossible to give a precise answer to that question because, clearly, it depends on the circumstances of the particular case. An application to the commission, which first hears the application, may be so manifestly ill founded that it can be dealt with immediately, without a formal hearing. On the other hand, for those cases where clearly there is a substantial issue, there is a full hearing at present before the commission. Indeed, if the hon. Gentleman were to walk into its courtroom, he would find that it looks very much like a court and like the European Court of Human Rights. As he may know, that is one of the reasons why, after the reform of the process of the European Court of Human Rights, there will be a unified and single court from 1 November this year. Therefore, depending on the circumstances, there will be thorough argument before the commission. Indeed, its decision may look very much like a decision of the court.

It is important to recognise that many cases are settled on the basis of an opinion of the commission and do not necessarily proceed to the court, but that opinion may nevertheless be extremely relevant to the interpretation of the convention by the domestic courts. Perhaps more important still, the commission is responsible currently for decisions on the basic admissibility of complaints, including whether they are manifestly ill founded, as I have mentioned. That is an important part of the body of Strasbourg decisions and one that, on any view, it is right for our courts to take into account.

Amendment No. 7 would remove the reference to judgments "whenever made or given".

Mr. Grieve

Before the hon. Gentleman moves on, let me say that I have no difficulty with his points about the commission and its role, but I found it a little more difficult to understand why the Committee of Ministers—particularly the reference to its decisions under article 46—is slotted in at that point. He may not know the answer. There may be an obvious answer that I have completely missed, but I should be grateful to know why it was thought that that point—where one is dealing with jurisprudence, as I understand it, and previous decision making—is the appropriate place to put that reference.

Mr. Hoon

The obvious answer may be that the hon. Gentleman has missed the amendment to article 46 in protocol 11. Essentially, article 46 requires the high contracting parties, the signatory member states, to undertake to abide by final judgments in the court in any case to which they are parties. Therefore, in that sense, the decision of the Committee of Ministers is on all fours with decisions of the court. That is why that particular provision appears in its place in the Bill.

I was dealing with the point that the hon. Member for Beaconsfield made about amendment No. 7 and the reason for the inclusion of the words "whenever made or given". That phrase makes it clear that the domestic courts are to take into account not only existing jurisprudence of the convention institutions, but their future jurisprudence, which in due course will be influenced by the contribution of our courts. Removing the phrase would serve only to cast doubt on the duty to take account of future Strasbourg jurisprudence. I think that, during his debate with himself, he reached that conclusion in any event, but, for the avoidance of any doubt, I make that clear.

Having explained to Opposition Members the weakness of the various amendments that have been tabled, I hope that they will be willing to withdraw them.

6 pm

Mr. John M. Taylor (Solihull)

I cannot claim to speak with any of the legal authority of so many of my distinguished right hon. and hon. Friends. I was no more than a humble high street solicitor, and the extent to which I have practised in human rights in 22 years is almost exactly nil. My interest in the debate was engaged by the remarks of my hon. Friend the Member for Gainsborough (Mr. Leigh), who began to develop his anxieties—which I share—about the distinction that we have sustained in this country between the role of Parliament and the role of the judges.

This is a political judgment—I shall not try to follow the lawyers in their legal arguments. The argument of my hon. Friend the Member for Gainsborough gave rise to a political question—who appoints the judges? In this country, we have the anomalous but rather magnificent position of the Lord Chancellor—splendidly ensconced as he is. He is the complete denial of the separation of powers and the rule of law, because he is, at the same time, a member of the legislature, of the Executive and of the judiciary. His record in appointing judges has been rather good.

As my hon. Friend the Member for Gainsborough said, what happens if we begin to assume forms and practices not unlike those in the United States of America? We all know what happens in terms of appointments to the Supreme Court, which are made by senators—for all practical purposes—who are divided on party lines. They examine the record of the candidate, not least his personal life—it seems to be an automatic feature of American politics that someone's private life is thoroughly turned over—and his previous political positions.

During the presidency of Lyndon Baines Johnson, there was a suggestion that a man by the name of Abe Fortas be appointed to the Supreme Court, which had a vacancy in its fixed number of judges. He had developed a reputation as a liberal judge in a more junior forum, and the conservatives on Capitol hill began to argue against his appointment. In particular, they reckoned that he had a liberal record on cinema licensing and that he had let all sorts of things go through. They arranged to get all the films that Abe Fortas had permitted as film censor, and they had a constant show of the films approved by the liberal Abe Fortas. It was known as the Abe Fortas film festival. That is a fine level to which to reduce the appointment of judges.

Mr. Leigh

My hon. Friend is making a powerful point. If we go down that route, we may end up with a system similar to that of America where, from the early 19th century, the judges have claimed the last word on the constitution. Effectively, that means that, on important areas such as abortion, contraception and capital punishment, the Supreme Court and the judges, not Congress, make the law. Indeed, the Supreme Court strikes down Congress on those matters. This country may legitimise the politicisation of our judiciary, which we believe would be fatal to the way in which our constitution has developed over three or four centuries.

Mr. Taylor

I do not think that I could have put it as well as that. I am extremely grateful to my hon. Friend for that intervention and for adding that lustre to what will become an important record of this significant debate.

Mr. Bercow

I agree with virtually everything that my hon. Friend has said, as I ordinarily do. The only exception is that, in his references to the Lord Chancellor, he was showing excessive generosity to what might be regarded by some members of the Committee as an undeserving cause. Further to the observation of my hon. Friend the Member for Gainsborough (Mr. Leigh), does my hon. Friend agree that the effect of this increasing arrogation of powers to the courts and the simultaneous stripping away of the powers of the elected legislature threaten to weaken the umbilical cord that has traditionally linked the Government of this country with the people who elect the Government?

Mr. Taylor

That is the fear at the heart of the matter. Whatever references I may have made to the Lord Chancellor were references to an office, and not to any particular incumbent. I had the great honour of serving a previous incumbent in this House, and I hold the office in high regard.

Mr. Hogg

My hon. Friend has endorsed what my hon. Friend the Member for Gainsborough (Mr. Leigh) said—that we are giving judges the final say on a range of rights. However, that is surely the consequence of any Bill of Rights. It is, in fact, the logical objection to the Bill of Rights. Once we have accepted a Bill of Rights—as we have done by adopting the convention—the question for this Committee and this House is whether the judge in question is a European-based or a UK-based judge. That is the narrow question we face, rather than the broad issue so eloquently put by my hon. Friend the Member for Gainsborough.

Mr. Taylor

My right hon. and learned Friend contends that the adoption of the convention into domestic law is the beginning of a Bill of Rights. I offer an alternative interpretation—that it is perhaps the beginning of a written constitution. He would be welcome to intervene on me on that matter if he wished to do so.

Mr. Hogg

Of course it is—this is indeed a Bill of Rights. It does indeed mean a written constitution, and my hon. Friend the Member for Gainsborough—

The Second Deputy Chairman of Ways and Means (Mr. Michael Lord)

Order. The right hon. and learned Gentleman and other hon. Members are straying further and further from the amendment. The hon. Member for Solihull (Mr. Taylor) must get back to the amendment.

Mr. Taylor

I shall get back to it—if I was ever there. The correct way for me to bring my speech to a conclusion is to remind the Committee that it is a part of our culture, our idiom and all that we have developed in this great country in our great history that the judges defer to Parliament. That point has not been made in the debate. The judges have a customary form of words with which they defer to Parliament—as seen in many law reports—which is "Parliament in its wisdom". That is the view of the judges towards Parliament, and it is a good attitude for them to take.

Mr. Garnier

I do not know whether my hon. Friend intended to or not, but he was on point in at least some of his remarks. Clause 2(1)(a) refers to a judgment, decision, declaration or advisory opinion of the European Court of Human Rights. If, in his 22 years as a solicitor, my hon. Friend has read some of the judgments of the European Court of Human Rights, he will have seen that, in some cases, the court says candidly that it sees the convention and the development of its rights as a constitutional Bill of Rights. The court makes no secret of that.

Mr. Taylor

I am very grateful to my hon. and learned Friend for comforting me, even at the conclusion of my speech. I take that solace and endorsement very kindly. I have—to answer his question—read judgments of the Court. Furthermore, having served briefly as a member of the Council of Europe, I have also read the convention. I remind myself that the convention was written largely by British lawyers. We were the first to initial it, and the first to endorse it. It is not exactly an alien creature, except perhaps in its new constitutional setting.

My initial view of the matter generally was that part of the British people's objection to judgments made in Strasbourg was, more or less, that they were made in Strasbourg by people who were not citizens of the United Kingdom, and whose surnames made it sound as if they were not citizens of the United Kingdom. Initially, I felt that the British people would be happier with the convention, feel kinder towards it and have greater respect for its general authority if it were incorporated into domestic law, and if contentious human rights issues could be decided by English and Welsh judges in law courts in the Strand.

Mr. Lord, that was my speech, and those were some of the points that I wanted to make. I am very glad of the opportunity to be able to do so.

Mr. Heald

Many hon. Members in the Chamber are lawyers. I make that confession—mea culpa.

The Secretary of State for the Home Department (Mr. Jack Straw)

It is a badge of honour.

Mr. Heald

I am pleased to hear the Home Secretary say that, and I certainly would not disagree with it.

I do not know how many hon. Members in the Chamber have experience of taking human rights cases to the European Court of Human Rights. I have not. However, over many years, I have had experience of appearing in the English courts and being impressed by the quality of our judges and the way in which the law is allowed to interact with the circumstances within our island. I think that many of us want to protect the history and quality of our judges being able to interpret the law based on the conditions within our island—or in England and Wales, which is the jurisdiction in which I practise.

Above all, our judiciary do not involve themselves in political decisions, or in decisions that involve interpreting high-sounding and vague principles—the type of imprecise statements in the European convention on human rights itself.

In our jurisdiction, the convention has operated so that our judges have had no involvement with it. Our judges have always made their decisions in the traditional manner, although there has also been the right of recourse to the European Court of Human Rights when that is appropriate.

Mr. Clappison

My hon. Friend is making an extremely valuable point. Is he aware of the recent decision of Lord Justice Mustill, in which he drew attention to the great difference between the general terms in which judgments are given in the European Court of Human Rights and the more precise terms in which they are given in the United Kingdom? Does my hon. Friend agree that there can be a very big difference between the two?

Mr. Heald

I agree entirely with my hon. Friend. There is a danger that, if we import into our judges' jurisdiction the idea that vague and imprecise concepts can be the subject of their jurisprudence, and that they can reach that type of decision, the overall system may become contaminated, changing our current precise practice of the law—which has been a proud part of our history—into a much more vague, imprecise and undoubtedly high-sounding practice. Ultimately, however, it will result in political judgments being made.

Mr. Grieve

I do not disagree with any of the sentiments expressed by my hon. Friend. Many judgments of the European Court of Human Rights seem to be very woolly and general. Does he not think that English judges are likely to apply their minds to such decisions—as they have had to do to decisions of the European Court of Justice, which have the same quality of woolliness—and succeed in extrapolating basic principles from that woolliness? They have subsequently applied those principles very specifically—so greatly improving jurisprudence, and case law, in this case, in relation to the convention.

Mr. Heald

My hon. Friend expresses the contrary viewpoint, with which I was about to deal. If our judges are allowed to be pioneers in the matter, they will not half improve that sphere of jurisprudence across Europe, especially as it operates for United Kingdom citizens— [Interruption.] The Minister does not like the way in which I have described the argument. However, I think that he himself would accept that his argument is that our judges should have an input into the matter and be able to define and deal with cases on the basis of the European convention.

I do not accept that argument. I think that there is a danger of contaminating our system and of changing it, so that it conducts not a precise legal exercise, as it currently does, but a rather vague, woolly and rather imprecise one, as the convention demands.

6.15 pm

In the other place, Lord McCluskey—who is no Conservative, but, none the less, a former Law Officer—said: The present Bill does a great deal to achieve a remarkable and reasonable compromise. However, I still believe that it offends against points of fundamental principle. By incorporating into our domestic law vague, imprecise and high sounding statements of legal rights, we hand what is truly legislative power away from a democratic and accountable Parliament to an appointed, unelected and unaccountable judiciary."—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1266.]

Mr. Hogg

That is already the position. Once we subscribed to the convention, that was the consequence. The question that the Committee and the House will have continually to face is whether interpretation of existing provisions under the existing convention is best entrusted exclusively to the courts in Strasbourg or, in the first instance, to courts in the United Kingdom. Speaking for myself, at first instance, I prefer having a United Kingdom judicial interpretation to not having one.

Mr. Heald

My right hon. and learned Friend has made the contrary argument that I tried to describe. I do not know whether he accepts that that was the contrary view that I was trying to describe.

Mr. Hogg

My hon. Friend did describe it.

Mr. Heald

The question is the effect on domestic jurisdiction of incorporating such vague principles. My view—like Lord McCluskey's—is that it would be bad for our law and our tradition in the courts of England and Wales.

Mr. Bercow

My hon. Friend is advancing a powerful argument. Does he agree that, in contemplating the fears that he has expressed, it is not necessary for Committee members to gaze into the crystal ball, when we can already for ourselves read the book? Is it not the case that—precisely as a result of the ambiguity of existing European law, of the European convention and of European treaties—much political rancour within and between member states of the European Union has resulted? The precise fear that he has expressed has already been justified and vindicated by the train of events that have occurred over many years.

Mr. Heald

There is a trade-off between the important declaratory effect of the convention itself and the price that one pays for it, which is an element of—almost certainly political—interference in the affairs of the countries that sign the convention. I accept that that is a proper concern for my hon. Friend.

The Minister tried to allay my fears about the use of the word "must" in clause 2, which would be changed by amendment No. 4. If one accepts the argument made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), which I have described as the contrary argument—that our judges should decide these matters—how does one achieve the type of benefits described by my right hon. and learned Friend: our judges being able to consider the convention in the light of the circumstances within the country in which they exercise their discretion—England and Wales—so that they can give us the benefit of importing their wisdom to the convention and considering local circumstances?

If judges are going to be required, as the word "must" implies they will be, to take into account the judgments, decisions, declarations and advisory opinions of the European Court of Human Rights, we are going down the route of trying to achieve a sort of international jurisprudence—a uniform jurisprudence—for the convention. That is to say that the convention is not one that all countries ratify and are then able to interpret according to their own individual circumstances, but one that is introduced and results in a case in Greece determining the outcome of a case in England.

I would argue against that, if one accepts the argument advanced by my right hon. and learned Friend the Member for Sleaford and North Hykeham, which I do not, one has to say that it is important that English judges should be able to take account of English conditions when making their decisions. The mandatory quality of the word "must" is wrong—the word should be "may".

Mr. Hogg

I do not like to defend the Parliamentary Secretary, but I shall in this case. He will say, rightly, that the word "must" requires a court to take into account—have regard to—the decisions about which we have been talking, and that it would be impossible to have a situation in which the courts in Scotland and in England might or might not do so. There must be a duty on the courts to have regard, but the phrase "to have regard" does not oblige the courts to adopt. There is a difference between "having regard to" and "being bound by", and the form of words used does not require the courts to be bound by the decisions in question.

Mr. Heald

I fully appreciate my right hon. and learned Friend's point—that the fact that the courts must take account of those decisions does not mean that they have to follow the judgment. However, my point, which is much the same point as was made by the noble Lord Browne-Wilkinson, is that, in practice, there is encouragement to follow and produce a uniform jurisprudence once one has got as far as saying "must". The argument my right hon. and learned Friend deploys makes my point for me, because Scotland is a separate jurisdiction, and, once one has made the concession of saying that a factual basis in one country for legal purposes must mean that the outcome—or at least the way in which the jurisprudence is dealt with—is the same in another country, one is saying that there should be a uniform jurisprudence.

I do not accept that. The best way in which the convention could be incorporated in English law, although I do not want that to happen, would be to allow the English courts to look at the circumstances in England and apply their own judgment as to whether or not to take account of the judgments, decisions, declarations or advisory opinions of the European Court of Human Rights. What the courts will have to take account of is the wording of the convention itself, and I do not see why we cannot have a system in which each court in each country that has the convention can make its decisions in the light of that country's own circumstances and traditions.

Mr. Hoon

I am sure that the hon. Gentleman believes all the rhetoric he is using, but will he put it to the test by applying the same arguments to the decisions of the European Court of Justice at Luxembourg?

Mr. Heald

The Minister's point is not really valid—he laughs, but I have seen him laugh and enjoy himself many times over the years. The European Union is a form of grouping very different from that which takes in the countries that have signed the European convention on human rights—there may be parallels, but the body and the body of law are not the same.

Mr. Garnier

May I help my hon. Friend by pointing out that the Minister's point is false? Under the treaty governing the European Union, which deals with the European Court of Justice, we are obliged to subordinate our legislation to that of the decisions of the European Court of Justice, so there is no genuine parallel of the sort suggested.

Mr. Heald

I am grateful to my hon. and learned Friend for that point, which makes it game, set and match.

Mr. Leigh

May I, too, assist my hon. Friend in rebutting the attack on his arguments by our right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg)? My right hon. and learned Friend appears to be suggesting that it is better to have British judges making the decisions than to have European judges making them.

Can my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) quote the remarks made by a distinguished former Law Officer in a previous Labour Government, Lord McCluskey, who dealt precisely with that point? He started by saying that we were effectively "empowering judicial legislation", and that, in general terms, we would be giving the same power to judges here as are enjoyed by judges in the United States. He went on to make a powerful point, which answers the one made by my right hon. and learned Friend, saying: Parliament will at once move to bring the law into line with what judges say the convention says it is. In fact, Parliament has no option if the Strasbourg Court so decides. He went on: The certain aim of British judges will be to interpret the convention in the way that they think the Strasbourg Court will. Otherwise, they will be overturned in Strasbourg."—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1267.]

Mr. Heald

That is such an eloquent statement of my point that I need not add to it.

In answer to the Minister's rather footling point, my hon. and learned Friend the Member for Harborough (Mr. Garnier) said, rightly, that there was no direct and clear parallel between the European Court of Justice and the European Court of Human Rights. The classic statement of that was made in the other place by the Lord Chancellor, who conceded that the United Kingdom was not … bound…to follow the court's judgments in cases to which it has not been a party".—[Official Report, House of Lords, 19 January 1998; Vol. 584, c. 1271.] That is not the case in respect of the European Court of Justice, and I am surprised that the Minister, with all his years of learning in the law, was not aware of that.

Mr. Hogg

I am sorry to speak again—although this is Committee, so one is entitled to do so—but I should like to respond to what my hon. Friend the Member for Gainsborough (Mr. Leigh) said. His analysis of the role of the courts in this country runs something like this: the courts in the United Kingdom will interpret the convention in the way they think that the court in Strasbourg will interpret it; and therefore no benefit will flow from having brought the convention back to this country. That is his position, and it is one that deserves serious attention, because it is advanced by my hon. Friend and supported by others.

I do not agree with that position, because the doctrine of margin of appreciation means that the Strasbourg court will itself place great weight on the interpretation that the courts in this country place on the language of the convention. Therefore, the effect of bringing the convention back to the United Kingdom will be to give the courts of this country an important—indeed, paramount—role in the interpretation of the convention in so far as it bites on circumstances in this country.

It is a mistake to think that the courts in this country will simply seek to adopt what they deem would have been the ultimate decision made in Strasbourg, had the Strasbourg court determined the matter in the first instance. Therefore, on that point, I disagree profoundly with my hon. Friend the Member for Gainsborough.

6.30 pm

Mr. Clappison

This has been a very interesting and useful debate, on an important subject that is well worth exploring. I shall deal with a few of the points raised by my hon. Friends.

My hon. Friend the Member for Maidenhead (Mrs. May) made a very important point about the effect of decisions taken some time ago, and whether equal weight should be given to them. It is common sense that we should not be bound too much by practices of the past.

Although my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) made certain technical points about the amendments, he agreed with the thrust of what we are seeking to do and the issues that we are trying to explore.

My hon. Friend the Member for Gainsborough (Mr. Leigh) made some very important points arising from his general concern about the approach of the European court and his wish to see a similarly cautious approach following incorporation.

The Minister was not entirely correct to suggest that European Court jurisprudence will be the same following incorporation. The courts have decided in several cases that they cannot take jurisprudence into account as though it had already been incorporated into our law. In the fairly recent Brind case, as well as many others, the higher courts have made that explicit. They can use jurisprudence as an aid to interpretation, because they have taken the view that Parliament would not want to legislate inconsistently with the convention, but they have not taken the view that the position now is the same as it would be following incorporation should we eventually decide to incorporate the convention.

My hon. Friend the Member for Solihull (Mr. Taylor) made an important speech, which I enjoyed. His remarks were the antidote to the comments of all those who speak about bringing rights home—as though they had ever left this place. This Parliament is the guarantor of our rights, and we have faith in its record as the defender of our liberties.

Without wishing to be prejudiced against the European convention on human rights, the mere fact that a document contains rights and describes itself as a Bill of Rights or a written guarantee of rights is, on historical evidence, no guarantee of those rights. The other day I read a document that contained a very fine statement of human rights. It guaranteed, it said, freedom of speech, freedom of movement and freedom of thought and conscience. Then I saw that it was the constitution of the Soviet Union of 1936. I do not think that any of us would judge that as the fountainhead of human rights.

I listened carefully to the Minister. He has taken the debate on the words "must take into account" a little further since it was discussed in the other place. He began by saying that there was no difference between our amendments and what is in the Bill, but then said that the amendments were technically defective. There is a slight contradiction in that. None the less, we got out of the Minister in the end the measure of flexibility for which we have been looking.

It has been our objective all along to try to ascertain just how flexible the Government are prepared to allow our courts to be through the use of the term "must take in account". Since the matter has been taken a little further, I do not propose to press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hoon

I beg to move amendment No. 119, in page 2, line 18, leave out 'Lord Advocate or'.

The Second Deputy Chairman

With this, it will be convenient to discuss Government amendments Nos. 126 and 127.

Mr. Hoon

The amendments are purely technical, arising out of the Scotland Bill and the transfer of powers to the Scottish Executive when it is established. I shall try to explain the matter as briefly as I can.

The Scotland Bill will provide for any powers that the Lord Advocate has to make subordinate legislation to be transferred either to Scottish Ministers or to the Secretary of State for Scotland, depending on whether they relate to devolved or reserved matters. Those include the power to make procedural rules relating to tribunals, which is referred to in clauses 2(3)(a) and 7(11)(b) of the Human Rights Bill. The effect of the technical amendments is to remove references to the Lord Advocate in those clauses, and therefore to pave the way for the transfer of powers that will take place when the Scottish Executive comes into being.

Mr. Clappison

I appreciate that the amendments are technical. The Minister has explained that references to the Lord Advocate concerning the rule-making power are to be omitted because they are contingent on devolution in Scotland. Will he assist the Committee by telling us who will end up with that rule-making power following these technical amendments?

Mr. Hoon

That will clearly depend on whether the matters are devolved or reserved. The Scotland Bill clearly indicates which are which. Amendments to the Human Rights Bill are necessary in order to ensure that, depending on whether the matters are reserved or devolved, they go in the appropriate direction.

Mr. Grieve

That is not quite right—is it? Is not the reality that the Government have not sorted out where the powers are to lie under the devolved legislation? The Scotland Bill does not make it clear where some of the powers will reside. I thought that that was unfinished business.

Mr. Hoon

The Scottish legislation provides that the Lord Advocate and the Solicitor-General for Scotland will cease to be members of the United Kingdom Government, and become members of the Scottish Executive. It is therefore necessary, in the context of references to the Lord Advocate, to ensure that the powers enjoyed are either exercised in relation to reserved matters by the Secretary of State for Scotland or such other appropriate Minister as he or she should ultimately designate, or dealt with as devolved matters through the Scottish Executive.

Mr. Clappison

If the Minister is saying that the powers will be either devolved or reserved, will he tell us which the Government wish them to be?

Mr. Hoon

It is not a matter for the Government to wish or desire. The Scottish legislation specifies what is devolved and what is reserved. The amendments are purely consequential on, and, in effect, tidy up, matters that have arisen from that legislation.

Amendment agreed to.

Amendment made: No. 137, in page 2, leave out lines 22 to 35.—[Mr. Hoon.]

Question proposed, That the clause, as amended, stand part of the Bill.

Mr. Clappison

I should like to highlight a point that I made in a brief intervention on my hon. Friend the Member for North-East Hertfordshire (Mr. Heald). We, and therefore the judges, are entering new territory. It is important that we spend time getting this right, and recognise the difficulties that judges will face in interpreting the European legislation and how it will mean a change in the judicial way of thinking. In the course of debates on clause 2, we have tried to create a partnership between judges and Parliament, of which it is important for us to keep sight. We shall return to the theme.

Mrs. May

I should like to refer to debates on the first allotted day in Committee, which relate to clause 2 and amendment No. 137. I hope that the Minister will reiterate that the Government have taken on board the concerns expressed by my hon. Friend the Member for Gainsborough (Mr. Leigh) and others on the extent to which the concerns of the Churches should be taken into account in the context of the Bill. A long debate in the other place focused on whether, in taking into account various aspects of decisions in clause 2, the Bill should also require the issue of religious faith to be taken into account.

The Home Secretary made it clear that the Government were very alive to the concerns that the Churches had expressed. It is important that we do not allow the debate on clause stand part to pass without asking the Government to reiterate their assurance. The Churches are greatly concerned about the impact of the Bill. I hope that the Minister will be able to assure us again.

Mr. Hoon

I am delighted to give the Committee that assurance, in response to the hon. Member for Maidenhead (Mrs. May). My right hon. Friend the Home Secretary set out precisely and very clearly the Government's position during debates on clause 1. I am entirely happy to endorse it.

Question put and agreed to.

Clause 2, as amended, ordered to stand part of the Bill.