EFFECTIVE REMEDIES

HC Deb 20 May 1998 vol 312 cc977-1076

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.'.

Sir Nicholas Lyell

The amendments are exploratory. They would insert into the Bill article 13 of the convention. The reason why we wish to explore the omission of that article from the Bill and the difference that might be made if it were inserted relates to our primary aims for this legislation, which I hope the Home Secretary will say the Government share. However, even if they do share them, we doubt whether they have achieved them yet.

We have already expressed our doubts about the wisdom of incorporation of the convention, but, if there is to be incorporation, I hope that these three points are uncontroversial. First, one of the benefits of incorporation is that British judges would have an opportunity to have input into the fashioning of convention law. Some time ago, I wrote that I believed that, whatever my other reservations, that was an advantage of incorporation.

Secondly, the fashioning of convention law and its expression in our domestic law should be the combined efforts of the judiciary and Parliament. It is for the judiciary to state where and how our existing laws, procedures or remedies are inadequate in law or incompatible with the convention, but it is then for Parliament to decide, in cases where legislation is involved—either primary or secondary—how the matter should be properly corrected. That is why we broadly support the Government's approach to judicial remedies and the power to take remedial action that is contained in clauses 8 and 10.

Thirdly, we do not want the judiciary creating a separate body of law for the United Kingdom which may go further than would the commission or court at Strasbourg. Although we sometimes grumble at the Strasbourg institutions, and there are judgments that we respectfully criticise and seek to alter, we should recognise that they are usually careful and cautious in their approach to interpreting the convention. In recent years in particular, they have given a great deal of weight to margin of appreciation, which they and our own judiciary should be careful to do, and we respect the way in which they do so.

To help achieve those three objectives, we shall concentrate later in the debate on, for example, our dislike of the fast-track procedure and on the fact that the Bill lacks any device—I use that word carefully—that would enable the Government or a public authority, if aggrieved by a ruling of our domestic courts, to cause the issue to be taken on to Strasbourg. Such a device would effectively give a right of appeal not only to the citizen, who already has such a right, but to government and public authorities, which currently lack that right. We hope to hear in due course that the Government agree with us on those aims and that approach, and that they will allow us to assist them in amending the Bill in that way.

To revert more narrowly to the amendments, I ask the Government to clarify what they see as the difference, if any, between article 13 being expressly contained in the Bill and it being left out, as it now is. I invite Ministers to listen and watch carefully, because I suspect that we are about to start dancing on the head of a pin.

When the question was asked by Lord Lester in another place, on 18 November, the Lord Chancellor, commencing his dance—if I may put it that way—first replied: the courts may have regard to Article 13. Some 10 lines further on in the Official Report, in answer to my noble Friend Lord Campbell of Alloway, the Lord Chancellor said: to incorporate expressly Article 13 may lead to the courts fashioning remedies about which we know nothing".—[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 477.]

Mr. Edward Garnier (Harborough)

My right hon. and learned Friend has been discussing the opinions of their lordships. Has he learnt anything from reading the Official Report of the other place that tells us the substance of the reasoning, if there is any reasoning, behind the Government's approach as set out by the Lord Chancellor?

Sir Nicholas Lyell

My hon. and learned Friend anticipates accurately the points that I am about to expand. The simple answer to his question is no, but let me seek, for the benefit of the Home Secretary and the Minister, to explain why, in the hope that at least here, in the light of a summer's day, we may have some elucidation from the Government.

As I said, when the question was raised in the Lords, the Lord Chancellor gave two seemingly inconsistent answers within about 15 lines of debate. He went on to rebuke, if that is not too harsh a word, Lord Ackner, a former Law Lord, for "nourishing suspicions"—a delightful expression—on the issue. However, he then purported to comfort my noble Friend Lord Kingsland, the shadow Lord Chancellor, by stating: I believe that the English law is rich in remedies and I cannot conceive of a case in which English law under Clause 8(1) would be unable to provide an effective remedy."—[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 479.] The House will instantly recall that Lord Lester said that he won Pepper v. Hart, but I was on the other side. Pepper v. Hart was not exactly a case that one won or lost, but one in which the House of Lords—which was straining at the leash to do so—decided that it would be illuminating to their Lordships, in their judicial capacity, and to the courts generally if they were able to examine the words of a Minister in cases of ambiguity in a Bill, to determine whether they could ascertain how to resolve that ambiguity.

It has always seemed to me ironic that their Lordships chose a case in which the junior Minister in a Labour Government—who was a highly respected Member, and subsequently a Chairman of the Treasury Select Committee—had, around midnight, been answering some 90 questions in two hours in the course of a debate on the Finance Bill, in which he had arrayed against him 14 future Cabinet Ministers and two future Chancellors. None the less, Pepper v. Hart was thought likely to be a case in which examination of the Minister's words would be helpful.

4.45 pm

The point about Pepper v. Hart is that in it, it was ruled that one may examine a Minister's comments. Lord Lester—always astute on such points—has decided for himself that, having heard the current Lord Chancellor expatiating on the meaning of clause 8(1), he could take it that judges, having read the debate in the other place, would arrive at the simple conclusion that it was Parliament's intention that the courts could have regard to Article 13 of the Convention.

For completeness, one notes—as the Lord Chancellor pointed out—that, under clause 8(4), In determining— (a) whether to award damages, or the amount of an award", the Bill already provides that the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention. The Home Secretary will have instantly realised that, as the Bill seems to say that courts can take those points into account in awarding damages, applying another legal principle—expressio unius est exclusio alterius—presumably they are not entitled to take them into account in other circumstances. However, the Lord Chancellor did not go into that particular detail. Nevertheless, as I said, it seems to suggest that, in other respects, one does not take article 13 into account.

The Home Secretary might again be able to enlighten us on whether there is any difference between the meaning of the words "taking into account" and "having regard". I think that, by now, I have made good my point that the head of the pin on which we are dancing is not all that large.

I conclude with two simple questions. Does it make any difference whether article 13 is expressly contained in the Bill? If so, what difference does it make, and why?

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

I congratulate the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) on a very elegant, well-informed and entertaining speech. However, in the course of this short debate, I hope to show that—on the omission of article 13—far from dancing on the head of a pin, Labour Members have been waltzing with ease around a very large dance floor.

Although the right hon. and learned Gentleman made some hay with some selected quotations from my right hon. Friend the Lord Chancellor in the other place, it is fair to tell him that, in the course of that debate, Lord Lester of Herne Hill withdrew his amendment, seeming to be satisfied—he did not press his amendment to a vote—by explanations offered by the Lord Chancellor.

Sir Nicholas Lyell

The Home Secretary is right to say that Lord Lester appeared to be satisfied, but that was precisely because of his interpretation of the Bill, which, as I have just explained, was that, notwithstanding that article 13 was omitted, by applying Pepper v. Hart, the courts could none the less have regard to it.

Mr. Straw

I hope to explain, fully consistently with what my learned Friend the Lord Chancellor said, why we thought that, on balance, it would be better to omit article 13 than to include it.

In response to the first three general points made by the right hon. and learned Gentleman, of course we support him. The case for incorporation, among others, is that British judges can be involved in the development of jurisprudence. I happen to think that that will be extremely helpful, both because they obviously have a better understanding of circumstances in this country than judges from other jurisdictions, and because we have a body of people in the higher judiciary with a degree of skill and professionalism that is in some ways unrivalled throughout the world. It is important that that skill should be utilised in the interpretation of a profoundly important convention and a profoundly important Bill.

Secondly, the right hon. and learned Gentleman felt that it was right that we should incorporate the convention in a way that fashioned the law through the combined efforts of the judiciary and Parliament. In opposition, when we first looked into the matter, we certainly tried to achieve that.

On the third point, we did not want to incorporate the convention in a way that challenged the supremacy of Parliament and its sovereignty. I have noticed some correspondence and articles in the newspapers suggesting that we should have gone down that route, and that, if we did not, it would be a milk-and-water version of incorporation.

When reference is made to Bills of Rights not only in the United States but in jurisdictions such as Canada, what is forgotten is that those jurisdictions have written constitutions and that there is what amounts to a superior law, which is brought into effect by the procedures for change in the constitution itself. We do not have that facility, and I do not suggest that we should. As an alternative, we have the sovereignty of Parliament, and therefore it is of profound importance that the ultimate judge of what should or should not be a right and a responsibility in the United Kingdom must be this Parliament and no other body.

In the discussions that took place among ministerial colleagues, we thought about this matter long and hard. If the right hon. and learned Gentleman does not mind me saying so, I was pleased and to some extent amused that, despite his hesitancy about the overall principle of incorporation, he is now proposing a purer form of it than some would say we have put in the Bill. We decided it was inappropriate to include article 13, for the following reasons.

First and foremost, it is the Bill that gives effect to article 13, so there was an issue of duplication. The Bill sets out clearly how the convention rights will be given further effect in our domestic law, and what remedies are to be available when a court or tribunal finds that a person has been the victim of an unlawful act. We will be discussing those clauses in more detail later, but I will briefly summarise the relevant provisions.

Clause 3 requires legislation to be read and given effect, as far as possible, in accordance with convention rights. Clause 6 makes it unlawful for a public authority to act in a way that is incompatible with a convention right. Clause 7 enables the victim of an unlawful act to rely on his or her convention rights in any legal proceedings, or to bring proceedings on convention grounds. Clause 8 provides that a court or tribunal, when it finds that a public authority has acted unlawfully, may grant the victim such relief or remedy, or make such order, within its jurisdiction as it considers just and appropriate.

Those are powerful provisions, as is acknowledged. In our judgment, they afford ample protection for individuals' rights under the convention. In particular, clause 8(1) gives the courts considerable scope for doing justice when unlawful acts have been committed. Indeed, no one has been able to suggest any respect in which the Bill is deficient in providing effective remedies to those who have been victims of an unlawful act.

The amendment—this was to some extent implicit in the right hon. and learned Gentleman's closing remarks—would add nothing to the Bill, which brings me to our second reason for opposing it. If we were to include article 13 in the Bill in addition to the remedies provided in clauses 3, 6, 7 and 8, the question would inevitably arise what the courts would make of the amendment, which, on the face of it, contains nothing new. I suggest that the amendment would either cause confusion or prompt the courts to act in ways not intended by the Bill—for example, by creating remedies beyond those available in clause 8. Whatever the outcome, the result would be undesirable.

Mr. Garnier

Will the right hon. Gentleman give one or two examples of the remedies he envisages that would go beyond those set out in clause 8?

Mr. Straw

In considering article 13, the courts could decide to grant damages in more circumstances than we had envisaged. We had to consider that matter carefully, because of the effect on the public purse. We are dealing with breaches of rights by public bodies, some of which are financed by Government—whose purse is, apparently, endless and seamless—whereas others do not have access to the full resources of Her Majesty's Government and the Bank of England printing works in my home town of Loughton in Essex. We had to think carefully about the scope of the remedies that we should provide.

Our overall judgment is that the amendment, which would incorporate article 13, would not add anything much, but might create uncertainties. We see no particular reason to accept it.

Mr. Garnier

Does not that argument fly in the face of the terms of article 13, which concerns everyone's right under the convention to an effective remedy? The right hon. Gentleman's point about the public purse and defendants or respondents to complaints who do not have such a deep pocket suggests that some people will be denied an effective remedy. If article 13 is not incorporated, an effective remedy will be denied those who are not, for example, taking action against a Government or public body with a huge purse.

Mr. Straw

We do not believe that those people will be denied an effective remedy. Indeed, as I said, very few people have suggested that the remedies we are providing will be ineffective—however, they must be balanced and proportionate. Ultimately, as the right hon. and learned Member for North-East Bedfordshire rightly said, courts will have to take account of jurisprudence laid down by the court in Strasbourg.

I accept that we are arguing a fine point, but I suspect that, if the right hon. and learned Member for North-East Bedfordshire had been pursuing the Bill in government, as easily he could have been, he would have come to the same judgment as we did—that there is little point including in a Bill additional wording whose probable effect would be not to make any difference, but whose possible effect would be to add uncertainty.

That is our judgment on a fine point, and I accept that the right hon. and learned Member for North-East Bedfordshire may consider it a moot point. No doubt I have spoken less eloquently than the Lord Chancellor and others in the Lords.

Sir Nicholas Lyell

I am most grateful to the Home Secretary, who is speaking most clearly. I entirely agree that, with regard to damages, the Bill is perfectly straightforward, and that clause 8(4) expressly states that principles applied by the European Court of Human Rights should be taken into account.

What is to be made of the Lord Chancellor's statement in which he said: My response to the second part of the question posed by the noble Lord, Lord Lester, is that the courts may have regard to Article 13."—[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 477.]? Lord Lester has taken that as Pepper v. Harting—if I may create a new verb—the result that he wants, allowing the courts to do what they could not otherwise do.

5 pm

The Home Secretary, not the Lord Chancellor, is in charge of the Bill. Will he clarify whether the courts are to be able to use the Lord Chancellor's words to have regard to article 13, or whether they should simply read the Bill, which makes no such reference? Of course, I mean no disrespect to the Lord Chancellor.

Mr. Straw

Me neither. I shall certainly talk to the Lord Chancellor, but I think that he had in mind no more but no less than the fact that the courts would apply clause 2(1), which says: A court or tribunal determining a question which has arisen under this Act in connection with a Convention right must take into account"— not "have regard to"— any … judgment, decision, declaration or advisory opinion of the European Court of Human Rights … whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Of course, there is convention jurisprudence on article 13, as on other articles. Lord Lester made that point in respect of the Chahal case, which turned on article 13, and said that it would be taken into account and that regard would be had to it. That point is as much in our favour—suggesting that the specific inclusion of article 13 is unnecessary—as it is in the favour of the right hon. and learned Member for North-East Bedfordshire.

Sir Nicholas Lyell

I do not want to be tedious, but the Home Secretary will recognise that clause 2(1) concerns any … judgment, decision, declaration or advisory opinion", while my question concerns whether the courts should have regard to article 13. I think that he is saying that he does not agree that the courts should have regard to article 13, as Lord Lester would have wished.

Mr. Straw

Let me try again to answer the point. The convention has been international law for 50 years, and any tribunal will consider the bare text of any original convention by considering the way in which its application has developed—there is, indeed, a requirement to do so—so, in practice, the courts must take account of the large body of convention jurisprudence when considering remedies. Obviously, in doing so, they are bound to take judicial notice of article 13, without specifically being bound by it.

That is my judgment about the way in which the law will work. I wish future Judicial Committees of the House of Lords luck in working through these debates. One sometimes wonders about the wisdom of the Pepper v. Hart judgment in terms of the work that it has given the higher judiciary. It is a fine point, but since we saw that there was no purpose, and indeed that there were some dangers, in including article 13, we thought that it was best omitted.

Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)

Surely, if the Government had wished no consideration to be given to the jurisprudence that has developed on article 13, it would have been necessary to include a specific derogation from the provisions of clause 2(1). Without that derogation, it seems inevitable that how the courts have developed article 13 rights will be a matter that the court not only may consider, but ought to consider.

Mr. Straw

With respect, that is the point that I sought to make. The distance between us is small.

Mr. Garnier

If the Home Secretary agrees with the point just made by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), why not include article 13 so that there is no doubt? Then the House of Lords Judicial Committee would not have a Pepper v. Hart problem.

Mr. Straw

We think that it would create doubt. We believe that we are adequately covering the issue of remedies in clauses 3, 6, 7 and 8. We are specifically providing remedies that are understandable in English and Scots law. In determining whether a particular remedy is to be granted in respect of any action, the courts must interpret convention rights as laid down in clause 2.

If I may labour the point, we do not believe that incorporating article 13 adds anything positive to the Bill that is not already there; that covers the point about the courts having to take judicial notice of article 13 as a basic text without being bound by it. We believe that it could create unnecessary doubt, and that is why it is not sensible to accept the amendment, which I respectfully invite the right hon. and learned Member for North-East Bedfordshire to withdraw.

Mr. Denzil Davies (Llanelli)

I see the logic in the arguments of both my right hon. Friend the Home Secretary and the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell). Let me refer first to my right hon. Friend's logic by saying that the convention is about rights, but has one article that says that courts should give effective remedies. Courts usually give whatever remedies they can. As far as I know, the county court cannot provide prerogative orders—at least, it did not used to be able to; perhaps it can now and I do not know it. There are certain cases in which injunctions can be granted under statute in the county court, but prerogative orders such as certiorari or mandamus are not normally issued by county courts.

Presumably, if an issue of convention rights appeared in a county court action, an English county court would not be able to grant certiorari or mandamus, although that would be an effective remedy under article 13. I understand why my right hon. Friend says that each court will grant the remedy that that court has the right to grant, but if there is a judicial review, it is unusual for the divisional court or, in civil cases, the High Court, to award damages. It can happen, but—I have not looked at the white book over the past 24 hours—it is very rare. Yet much of the work for lawyers that the incorporation of the convention will create—if it does—will be in judicial review. The High Court might declare in a judicial review case that an act contrary to the treaty was unlawful. That might not be an effective remedy. Damages might be more effective. Today, it is generally not possible to obtain damages. It may be that the declaration of unlawfulness is sufficient.

I am as baffled as—I do not say this in a derogatory sense—the right hon. and learned Member for North-East Bedfordshire was. I have read the House of Lords debates. I, too, am baffled as to why article 13 has been left out, if it does not make any difference.

My right hon. Friend the Home Secretary muttered something about the public purse and lots of money. He said that it might cost a lot. I understand that argument, but I cannot follow its logic because, according to the notes on clauses, people cannot receive more than £15,000 from the courts in Strasbourg, if anything at all. So damages are pretty restricted. I am not sure why my right hon. Friend is worried on that front, unless damages over and above the normal remedies that would be given by a court, such as prerogative orders in the case of judicial review, could be sought as an effective remedy. In cases of trespass of land, one can obtain a judgment and penny damages. That might not be an effective remedy in some cases.

Does the provision mean that I cannot normally obtain more than a penny, but that if article 13 is incorporated, I can obtain at least up to £15,000, if that is thought to be an effective remedy? I am not sure whether the word "effective" means anything at all. I have not studied the jurisprudence of the convention or the cases. Perhaps it does.

We are told that we are not incorporating the convention into English law, but we are. If we are incorporating the convention into English law, I can well understand that if an action goes through the normal English, Welsh or Scottish courts, it is tidier to say that the court can grant only the remedy that that court can give in the generality of cases. It makes the position rather complicated perhaps, and fussy—I do not know—to enable, say, a county court to give a remedy in a case under the convention when the court cannot give the remedy normally.

Perhaps all this is a consequence of the Government's fiction. It is a fiction. We shall return to this subject later, but it is a fiction. The Government say that they are not affecting the sovereignty of Parliament; that they are not incorporating the convention; that they are not doing anything at all. It is a clever fiction. Lawyers understand fictions. We approve of fictions. We think that fictions are great things because lawyers have made a lot of money over the centuries from fictions. This is a fiction and a clever one.

I can see the logic of what my right hon. Friend the Home Secretary is saying within the terms of the fiction—that parliamentary sovereignty is not affected, we are not really incorporating it and that it will all be done under English law. If we look at the interpretation provisions, we have to interpret according to the statute unless it is clearly contrary to the terms of the convention. It is very well done, and we all understand that.

All that I am asking my right hon. Friend in this rambling, short intervention is what he means when he says that he is worried about the public purse. Is he worried that all those lawyers—all those fat cats who sit every day in the judicial review courts and make a lot of money—will obtain damages against local authorities, damages for misfeasance, damages against the Home Office and other Government Departments, over and above any mere declaration that might satisfy pride but does not help the pocket of the litigant?

I do not know whether my right hon. Friend intends to speak again. If he tells me that I am talking nonsense, I shall not be happy, but I shall accept it, so perhaps he could deal with the point that I have made.

Mr. Dominic Grieve (Beaconsfield)

I listened carefully and with great interest to the comments of the right hon. Member for Llanelli (Mr. Davies). Although I approach the matter from a slightly different angle, I agree with him. I find a lack of logic behind the decision to exclude article 13 from the Bill. I listened carefully to what the Home Secretary had to say, and I understand the thrust of it. If it is the case, which it must be, that the courts will have to have regard to article 13, to exclude it from the text of the Bill but to infer that the courts will still have to have regard to it, must be a fertile field for argument and money for lawyers when human rights cases come to court.

I do not see how the article will cause exceptional problems if it is included in the Bill. It will be clear that where no domestic remedy may exist in damages, one will have to be created. That is something that the common law has been rather adept at doing for a long time.

5.15 pm

I am bound to say that when I was first contemplating how best to incorporate the European convention, it struck me that one way was simply to say that it was part of our common law, full stop, and leave it to the judiciary to formulate the remedies. That is what is being done—the Home Secretary may agree—with article 13. It is being left up in the air for the judiciary to make a formulation in so far as one may be required. It is in fact going to be part of our common law, but in a furtive way, as the right hon. Member for Llanelli said.

I find a lack of logic. It is perhaps an exercise in semantics, because the article will be included anyway when the time comes. However, when something is left out, we can rely on the fact that lawyers in court will latch on to it and formulate an argument that damages cannot be awarded. I can foresee a circumstance wherein the domestic remedy cannot be found in damages. Some court or other will say that it cannot award them. Then there will be the problem of going to appeal and possibly ending up in Strasbourg, when it is abundantly clear in the convention that an effective remedy of damages must be found. I question why article 13 is not included. I accept that at the end of the day it will be included by one means or another, but as we are trying to draft sensible legislation, I must raise a question mark.

I invite the Home Secretary not to give us an answer today but to go away and think about whether it would not be better to include the article in the Bill. Later we shall be discussing other areas in which we have tinkered around with the wording of the convention, some of which cause me far more disquiet, but I find it difficult to understand the logic behind excluding article 13.

Mr. Gartner

I wish briefly to pose a question or two to the Home Secretary. I could not agree more with what my hon. Friend the Member for Beaconsfield (Mr. Grieve) just said. I hope that the Home Secretary will allow us another opportunity to revisit this subject. We do not want to overdo the dancing on a pin, be it a stately saraband or a rock and roll, depending on which side of the argument one happens to be on.

The Home Secretary gave us two reasons for not incorporating article 13 in the Bill. First, he said that it would be duplication. Secondly, he said that it would create confusion and perhaps additional remedies that were not intended. I draw his attention to the terms of article 13: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. The right hon. Member for Llanelli (Mr. Davies) asked about the jurisprudence on the word "effective" and we could sit here all night discussing what "effective" means, but I should like to bring the Home Secretary home—if I may use that expression—to clause 8(4), which deals with the way in which a court should determine whether to award damages. It states that, in doing so, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41". One can revolve around that for ever, but marry it up with the words "effective remedy" and envisage a case in which a citizen wishes to recover damages from a Government institution—in this country, the Crown.

I am sure that I shall be corrected if I am wrong, but as I understand the common law of England it is not possible to get exemplary damages against the Crown; one can get exemplary damages against a chief officer of police or in other circumstances, but one is not entitled to exemplary damages against the Crown. Article 13, whether or not it appears in the Bill, suggests that we should all be entitled to an effective remedy, but if that remedy involves an application for exemplary or punitive damages against the Crown to compensate, the complainant in such cases will be denied. It may be that I am completely wrong on that point, but I should be most grateful if the Home Secretary could either remove my confusion or, as my hon. Friend the Member for Beaconsfield said, allow us to return to the issue on another occasion.

Mr. Straw

x: Let me answer—I hope to their satisfaction, but perhaps not—the points that right hon. and hon. Members have raised. My right hon. Friend the Member for Llanelli (Mr. Davies) asked what the problem is and raised the issue of uncertainty. It was that uncertainty that concerned us when we sat down and came to a finely balanced judgment as to whether article 13 should or should not be omitted.

I should say that I am recommending that the Committee should not accept the amendment. I shall reflect on the arguments that have been advanced, because the point is needle fine—everybody is agreed on the objective; the question is merely one of how to achieve that objective. We have come to one judgment, but I would not for a moment suggest that that is because we on the Treasury Bench are possessed of better judgment on such matters than other right hon. and hon. Members, who have far greater experience of the law than I have.

My right hon. Friend the Member for Llanelli asked whether damages would ever be available. In paragraph 2.6 of the White Paper, we said: In some cases, the right course may be for the decision of the public authority in the particular case to be quashed. In other cases, the only appropriate remedy may be an award of damages. The White Paper went on to make the point that the hon. and learned Member for Harborough (Mr. Garnier) made, which is that in considering an award of damages on conventional grounds, the courts are to take account of the principles applied, not so much by the convention, but by the European Court of Human Rights. In that way, people will be able to receive compensation from a domestic court equivalent to that which they would have received in Strasbourg. My right hon. Friend will know from the explanatory and financial memorandum to the Bill, on page iii, that the awards at Strasbourg tend to range from £5,000 to £15,000 and are not made simply because the Court finds a violation of the Convention.

Mr. Denzil Davies

I understand that, but it was my right hon. Friend who, quite properly, muttered about the public purse. What has the public purse got to do with the incorporation of article 13 if all those damages can be issued anyway? My impression is that he was saying that the Government were worried that, if they put article 13 in the Bill, it would cost far more money. My question is, how?

Mr. Straw

We might have been overworrying, but we did worry about the matter. My right hon. Friend was a Treasury Minister, so he will know that there is always concern about the financial effects of Bills, and quite right too. It is far more difficult to predict the financial effect of this Bill than of almost any other Bill coming before the House, because we are charting new waters and do not know exactly how it will develop. Our concern was to ensure that the courts applied themselves to the jurisprudence of the convention and that they did not, for example, develop awards of damages that exceeded the convention. It was for that reason that we took the view that the best way of applying article 13 in the context of incorporating the convention was to spell out in specific clauses how those remedies should be made available. Therefore, we take from article 13 that Everyone whose rights and freedoms — are violated shall have an effective remedy and then set out in the Bill what those effective remedies should be and how they can be accessed.

The hon. Member for Beaconsfield (Mr. Grieve) is to some extent right to say that the argument is about semantics and that it is probable that, at the end of the day, we shall have been arguing about a distinction without a difference. On balance, we came to the view that it was better and created more certainty to omit the precise text of article 13 from the Bill, but to apply it in the ways set out, not only in the clauses that provide for remedies, but through the force of clause 2. As I said, it is a finely balanced judgment.

Sir Nicholas Lyell

I am most grateful to the Home Secretary for giving way, because it gives me the opportunity to put to him the key point that is in my mind when deciding whether to withdraw the amendment.

I seek clarity in legislation. The Home Secretary invites me to withdraw the amendment that would insert article 13 into the Bill and I am minded to withdraw it, but I do not think that Parliament or the country should be left with article 13 having been kept out of the Bill—quite expressly, because the Committee has discussed it and I have withdrawn the amendment—but, at some later date, it being said to be effectively within the Bill because of things that Ministers said in the course of the debate. If the right hon. Gentleman can give me the assurance that we are legislating by black-letter law on the face on the Bill and not by what one can cull from the pages of Hansard, I shall feel much happier about withdrawing the amendment.

Mr. Straw

As far as I am concerned, we are indeed legislating by black-letter law on the face of the Bill. We could have a separate debate about the wisdom of the decision in Pepper v. Hart: I know why the Judicial Committee made that decision and, to some extent, there is common sense in seeking to tease out the meaning of words where they are ambiguous, but I have always taken the view that what Parliament passes is not what Ministers say, but what is on the face of a Bill. That is of profound importance to the manner in which we make legislation.

I invite the right hon. and learned Gentleman to withdraw his amendment, but I shall certainly reflect on what he and others have said. At the very least, I shall write to all the right hon. and hon. Members who have spoken, following my reflections.

Sir Nicholas Lyell

I am most grateful to the Home Secretary. On the basis of what he has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Kevin McNamara (Hull, North)

I beg to move amendment No. 111, in page 1, line 9, at end insert 'and— (c) Articles One and Two of Protocol Number 6,'.

The Chairman

With this, it will be convenient to discuss amendment No. 112, in schedule 1, schedule 1, page 19, line 23, at end insert—'PROTOCOL No. 6—

c989
1. ARTICLE 1 6 words
cc989-1076
2. ARTICLE 2 48,170 words, 3 divisions