HC Deb 21 October 1998 vol 317 cc1294-311


  1. (a) a Court, as defined in section 4(5), has made a declaration of incompatibility in respect of any legislation and where there is no further domestic right of appeal; but
  2. (b) it nonetheless appears to a Minister of the Crown that it is desirable in the public interest that the question of compatibility, and all and any issues arising in the proceedings which have given rise thereto should not be the subject of any remedial order unless and until such issues shall have been fully considered by the European Commission of Human Rights or, if admissible, should have been the subject of a judgement, decision, declaration or opinion of the European Court of Human Rights;

he may issue a certificate to the said effect in writing, and in such event the said declaration shall be of no effect pending consideration of the said issues by the Commission and the Court.'.—[Sir Nicholas Lyell.]

Brought up, and read the First time.

4.12 pm
Sir Nicholas Lyell (North-East Bedfordshire)

I beg to move, That the clause be read a Second time.

With this Bill we now turn from the damage being done to the economy by the Government to the damage which, alas, is being done to our constitution. I do not think that that is the intention of the Home Secretary, but he is party to it.

We have two main debates on this aspect. First, there is the debate on new clause 2 which relates to the need for an appeal to Strasbourg for the Government and for local authorities in certain circumstances. Secondly, there is our continued resistance to the Government's proposal for a fast-track system for remedial orders—in other words, for a system whereby, if there is a declaration of incompatibility by our courts, instead of the matter coming before Parliament for a proper Bill and Act of Parliament in the normal way, with full consideration by the House, the matter can simply be pushed through with a three-hour debate after a period of outside consultation. Both those matters are important if our constitution is not to be damaged.

The purpose of the new clause, to which we return because of the rather uncomprehending and unsatisfactory response by the Government in Committee, is to make clear what is unclear at present—that is, that the object of the Bill and incorporation of the convention is to bring our law into line with that of Strasbourg and make it easier for UK citizens to get a ruling from our domestic courts on issues that would hitherto have been taken to Strasbourg.

I hope that the Home Secretary agrees that the object is not to create a substitute constitution in the broad language of the convention, against which our domestic courts might be tempted to reshape our law in a way that goes further than the requirements of the convention. The convention was not designed to become a substitute written constitution for the United Kingdom. It was designed to keep UK law in line with the human rights law of Council of Europe member states, as declared in Strasbourg.

The new clause seeks to help in that process and the Government have nothing to fear from it. I therefore call on the Home Secretary to make it clear that what I have outlined is the Government's objective, and no more.

Hopefully, the problems to which I refer will not arise, but they are not fanciful. The answer may be that those problems do not arise frequently on the continent of Europe, but there are significant differences between the structure of our law and that of civil law countries, such as France, Germany or Spain. Indeed, almost all countries on the mainland of Europe are civil law countries, and their laws are much more heavily codified than ours. They have much more "black letter" law. It is not open to their judiciaries to develop their law as our judiciary has developed ours through the common law over the centuries.

In most ways, our system is a strength. The development of the common law has been rightly informed by a belief in the rights and liberties contained in the convention. We are rightly reminded that the convention was largely drafted in Britain in the late 1940s and early 1950s. However, any common law development has—subject to the European convention—always been subject to modification by the elected representatives of the people in Parliament. That gives democratic legitimacy to our constitution.

In future, that is to change somewhat, but I hope that the House agrees that it must not change too far. It is one thing to keep our law in conformity with Strasbourg concepts, which are, on the whole, cautious and seek to enforce basic standards; but the commission and the court in Strasbourg have also recognised that there must be a "substantial margin of appreciation". That is Strasbourg jargon, which means a substantial discretion and latitude should be given to each member state in respect of the exact method of implementation of the high principles set out in the convention. That margin of appreciation must also apply to domestic judgments based on the convention.

I hope that the Home Secretary agrees that the convention is not to give the judiciary carte blanche to rewrite our laws. Although one hopes that our courts will not over-use their powers—I think that most of them will not—the Government are right to anticipate that they will frequently be requested to do so. They will often come under a great deal of pressure and hear a lot of carefully prepared arguments in that direction.

If hon. Members need convincing of that danger, they need only read the speech given by the Attorney-General to the Bar Council at the beginning of this month. He explained, and I agree with him, how every level of the Government needs to undergo training as to the reach and relevance of human rights law. Repeated and extensive arguments are to be anticipated by those who, on behalf of defendants and others, appear before the courts. He said that the Crown Prosecution Service is to be trained and furnished with model answers to the more obvious submissions that are to be anticipated. Magistrates and judiciary are likewise to receive training, but what will happen if there is a ruling by our domestic courts against the Government—of whatever complexion, for we are legislating for as far as the eye can see and beyond—or a public authority which is believed to have gone too far?

Here, with respect to the Home Secretary, his answer on 24 June—I am sorry that I could not be present, but, as he knows, I was in hospital—is not, in our view, adequate. We need to create a more formal structure so that the individual citizens involved in particular cases and the country at large know where they stand. Are the Government accepting a particular ruling, and do they propose to legislate promptly?

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

I am grateful to the right hon. and learned Gentleman. I simply want to ask him whether he has a reference for the occasion on which I made this point.

Sir Nicholas Lyell

I shall look to help from the Bench behind, as the Home Secretary is better able to do. I should not say that he is better able to do that, because I have my hon. and learned Friend the Member for Harborough (Mr. Garnier) with me.

Mr. Straw

The junior.

Sir Nicholas Lyell

No, my hon. and learned Friend is not my junior at all now; he is one of Her Majesty's counsel learned in the law, no less.

Mr. Edward Garnier (Harborough)

Learned or not, may I interrupt my right hon. and learned Friend? The Home Secretary's speech, in response to mine, began at column 1127 of Hansard, or thereabouts.

Sir Nicholas Lyell

Some of the Home Secretary's answers on that occasion seemed to be rather dismissive, or even—this is not like him—a little trite. I am sure that he did not intend them to be so, but the Opposition are well aware that there is no "right" of appeal for Governments or public authorities to Strasbourg. It is precisely because we are aware of that that it was necessary to draft new clause 2, the purpose of which we have already put before hon. Members in Committee, in this careful way.

My impression from the Government's answer is that they recognise that there will be occasions when it is necessary to force a case to continue on to Strasbourg. I should be grateful if the Home Secretary would either make it clear that he does not agree with that point or acknowledge that there are likely to be cases when the Government or public authorities would not think that our House of Lords, or whichever of the highest courts had ruled on the matter, had given a ruling in accordance with what was likely to be Strasbourg law, and would want the matter to continue to Strasbourg.

It is not good enough, in our opinion, for the Government in answer to say that the mechanism to force a case on to Strasbourg already sufficiently exists. It may exist in theory, if I understand the Home Secretary's answer correctly. It is true, as was argued by the Government on that occasion, that, if the Government of the day, having received a declaration of incompatibility, do precisely nothing, citizens will, sooner or later, be forced to take the matter on to Strasbourg or will find themselves deprived of their remedy—but what an unsatisfactory way in which to proceed.

How long is the citizen—the litigant—to wait? What is the country to assume in the meantime? What is the status today of the hallowed and rightly time-honoured convention that Government will never knowingly break the law? It cannot be satisfactory to leave such matters in limbo.

Having been Attorney-General, I ask myself and the House, in the hope of an answer from the Government, what an Attorney-General would say if there had been a ruling of incompatibility by the House of Lords on a particular aspect, but the Government had taken no steps to correct it. Would the Attorney-General remain silent while the Government considered what to do?

Would that ruling—which, under clause 4(6), would not have any legal effect at that stage—have no effect on the courts? If, the House of Lords having delivered its judgment, a new case came before the courts, could the matter be argued de novo, or would the ruling stand as authority? If the Government have thought about these matters, we should be grateful to hear their conclusions. If they have not thought about them, we should be grateful if they would do so and would tell us their conclusions at some future date, although it would be preferable to hear them now. It cannot be satisfactory to leave such matters in limbo.

The individual citizen and the country at large are entitled to be told within a reasonable time—we suggest six weeks—whether the Government intend to change the law and, again within a reasonable time, how they propose to do so. If they do not intend to change the law, the citizen and the country should be told. The citizen could then take his case to Strasbourg. There would be a proper mechanism, certainty and comparative expedition. However, what the Government seem to propose is a recipe for confusion, delay and injustice.

Although I said that such problems would, I hope, be rare, I also said that they were not fanciful. One only has to look across the Atlantic to see what powers the courts have taken for themselves under their own constitutions. Periods of judicial passivity can be followed by periods of judicial activism. The classic example—I hope that it is not thought too high flown—is the American constitution, which showed itself inadequate, despite its fine phrases, to protect its citizens from slavery, but has more recently been construed so as to overturn the views of the legislature on the subject of abortion.

Likewise in Canada, the courts have struck down the federal law and state laws on abortion. We hope that that would not happen here, but fashions change. The language of the convention is certainly broad enough to provide pegs on which the courts could hang an argument to intervene. If they were to do so, on that example most people would probably think that the judges had seriously overstepped the mark. They would want a particular case to be brought to Strasbourg to challenge and to test such a serious extension of judicial power. We would certainly wish to have it tested at Strasbourg, yet at present, no satisfactory mechanism exists to enable that to be done.

Even at this late stage of the Bill, we call on the Government to think again on this matter and, I hope, to accept our amendment. I am not saying that it is perfectly drafted, but it is carefully drafted, and if it needs polishing, let it be polished. If that involves a little ping-pong between this House and the other place, let that take place. Above all, let us get this right.

Our new clause establishes a straightforward and workable system under which everyone knows where they stand. If a case needs to go on to Strasbourg, the litigant can take the necessary steps without uncertainty or delay. If not, he can await with confidence some appropriate amendment of the law by the House. Above all, it will make it clear to our courts and judiciary that the House does not intend to set up the convention as a substitute constitution. I commend the new clause to the House.

4.30 pm
Mr. Garnier

Let me begin by correcting something that I said earlier. I believe that the Home Secretary's response to my few remarks in Committee began not in column 1127, but in column 1119. No doubt the right hon. Gentleman has spent many a happy hour since last June reading Hansard in order to hone his arguments in time for today's debate.

I commend what my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) has said, not least because, to a degree, it mirrors what I said in Committee last June. I say that not because I consider myself to be a man of great original thinking, but because all people of good will and common sense who have given the matter some thought will have reached the same conclusions as my right hon. and learned Friend and me. Indeed, much of what I said on 24 June flowed from discussions that I had on the telephone with my right hon. and learned Friend when he was on his sickbed.

Be that as it may, I hope that, over the recess and in the hours available to him when he has not been dealing with other matters, the Home Secretary has had an opportunity to reconsider his response to what I said in Committee on 24 June. Although he was, as always, very courteous in dealing with my arguments, I am not sure that he did himself or the Committee justice in responding to what I had said on behalf of the official Opposition.

Let me take the Home Secretary back to 24 June, and column 1121 of Hansard. He said—just before an intervention by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan)— Therefore, although I understand the point of new clause 2, it would not achieve anything. Nothing in it could not equally be achieved—and will not equally be achieved—within the framework of the Bill as it stands. I regret to say—because I do not like being unduly controversial—that the Home Secretary missed not only the point, but the points. I fear that, unless it is amended to include new clause 2, the Bill will remain deficient, and will remain a source of aggravation and difficulty between the House, as the originator of legislation, and institutions and citizens who may, from time to time, come up against either the Government or Government institutions in complaining about the implications of the European convention on human rights under the Bill.

The points that I sought to make in my short contribution on 24 June were, I hope, reasonably clear. My first point was that we were left with an imbalance between Government and citizen. It seems to me that in any litigation, there should be fairness, if not parity,

between the two parties to the action. In my view, each party—be it citizen or Government—should have the right of appeal to the highest court of appeal in the given system of justice. Under the convention and the Bill, the citizen has the right to take his concerns from the lowest courts—the courts of first instance—through our domestic appeal tribunals, to the court in Strasbourg. The Government do not have that right.

Responding to my point—this is also in column 1121—the Home Secretary said: New clause 2 seems to be based on two assumptions. The first is that a declaration of incompatibility will have some legal effect unless a ministerial certificate is issued. The second is that the Government must make a remedial order following a declaration of incompatibility. However, he went on to say that there may be occasions when the Government might not do those things, which leaves the legal situation in a state of uncertainty.

Although there are advantages politically in leaving things in a state of uncertainty, as the Government demonstrate day by day, there are higher demands on a justice system than there are on party political interest. Where a Government, albeit ably assisted by men of integrity such as the Home Secretary, allow themselves to be led into a position where the citizen is unfairly advantaged compared with the opposite party in the litigation—the public institution, alias the Government—in the ability to appeal to the highest court, there is a glaring uncertainty, which our new clause would adequately deal with.

As I say, I do not like chiding the Home Secretary. I hope that he will see the reasonableness of the arguments of my right hon. and learned Friend the Member for North-East Bedfordshire and myself—on this and the previous occasion—and that they will convince him of the good sense of new clause 2.

It troubles me that the Home Secretary said on the previous occasion: Nor is there any obligation on the Government to remedy any incompatibility by means of a remedial order."—[Official Report, 24 June 1998; Vol. 314, c. 1121.] If there is incompatibility, it should be remedied; otherwise there is no point in introducing into domestic law the terms of the European convention. I urge the Home Secretary either to come up with some new and better arguments, or to accede to our new clause.

Mr. Straw

I am delighted to see the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) in his place and, I hope, fully recovered from his ills. He began his speech with some uncharacteristic hyperbole: with claims that we were damaging our constitution. I shall simply take that incantation as a necessary step that all Opposition Front Benchers have to go through. Then, because he was obviously uncomfortable with what I think is widely recognised in the House as wide of the mark, in relation to this Bill anyway, he went on to make his case in his usual reasoned way, joined by the hon. and learned Member for Harborough (Mr. Garnier).

I do not dismiss the arguments of the Opposition, but nor do I agree with them, and I should like to explain why. The right hon. and learned Member for North-East Bedfordshire asks me first, and it is an important point, to confirm that we do not view this Bill as a substitute for a written constitution for the United Kingdom. The answer is that we do not.

It is precisely because we have been determined that it should not be a substitute written constitution for the UK that we have structured the Bill in the manner that we have and, in particular, ensured that no court in this land, not even the Judicial Committee of the House of Lords, can place itself in the position of sovereignty over the High Court of the elected Parliament.

We looked at various ways in which the European convention could be incorporated. We looked at the experience of not only continental countries—I accept what the right hon. and learned Member for North-East Bedfordshire says about the differences that arise because of the fundamental distinction between our common law tradition and their civil law traditions—but Commonwealth countries. They have not incorporated the European convention on human rights because they are not within the continent, but New Zealand and Canada, for example, have incorporated Bills of Rights, often drawn on the European convention, into their domestic law. Some of those countries have chosen to structure their incorporation legislation so that their bill of rights emerges as basic law.

The right hon. and learned Member for North-East Bedfordshire spoke about "black letter" law, and I am grateful to the hon. and learned Member for Harborough for providing further and better particulars of the definition of such law. In countries that have written constitutions, there is not only statute law passed by the congress or Parliament but fundamental or—to use the continental term—basic law, which is the constitution itself. The constitution overrides, and is promulgated differently from, ordinary law.

If we had stated in the Bill that courts could not only declare incompatible any statute of this Parliament but override those statutes and declare them unenforceable, thereby abrogating them, we would have been establishing—either by the front or back door—a substitute written constitution for the United Kingdom. We would have been altering what I regard as a fundamental position established in our constitution: the sovereignty of Parliament. I think that one of the profound strengths of our system is that, although we may bind ourselves to the European Union, to United Nations treaties or to the European convention, we do not bind ourselves for ever, and that it remains open to this Parliament, at any stage that it chooses, to decide to withdraw from those conventions. Although we would, of course, have to accept the consequences of withdrawing, the decision would be made by this elected Chamber and the other place and by no one else.

The Government thought—there was no great argument about the matter, but it was important that we should deal with all the arguments—that it was important to enshrine Parliament's sovereignty in the Bill. We therefore developed the scheme of declarations of incompatibility. We did not propose that the Judicial Committee of the House of Lords should have the power to override Acts of Parliament by stating that, because they were incompatible with the convention, they were unenforceable and of no effect.

We said that the Judicial Committee of the House of Lords would be able to declare whether, in its opinion, an Act of Parliament was incompatible with the convention, and subsequently to refer the matter back to the Government, which is answerable to Parliament. In the overwhelming majority of cases, regardless of which party was in government, I think that Ministers would examine the matter and say, "A declaration of incompatibility has been made, and we shall have to accept it. We shall therefore have to remedy the defect in the law spotted by the Judicial Committee of the House of Lords." Therefore—as has been discussed in previous debates, and will be discussed again today—we have included in the Bill procedures for remedial orders. It is also always open to Ministers to introduce amending legislation in the normal way.

It is possible that the Judicial Committee of the House of Lords could make a declaration that, subsequently, Ministers propose, and Parliament accepts, should not be accepted. The right hon. and learned Member for North-East Bedfordshire mentioned abortion, which provides a good example. Although I hope that it does not happen, it is possible to conceive that, some time in the future, a particularly composed Judicial Committee of the House of Lords reaches the view that provision for abortion in either the United Kingdom or part of the United Kingdom is incompatible with one or another article of the convention. Although the Committee would be entitled to say that such provision was incompatible with the convention, such a view would create very great controversy and, in some quarters, considerable social anxiety.

We judged that, in that event, it would be wrong simply to accept what the Committee had said, and that a right to abortion, albeit quite properly limited and developed in this country over a period of 30 years, should suddenly be cast aside. My guess—it can be no more than that—is that whichever party was in power would have to say that it was sorry, that it did not and would not accept that, and that it was going to continue with the existing abortion legislation.

I want to pick up two further points made by the right hon. and learned Member for North-East Bedfordshire.

4.45 pm
Mr. Garnier

Is the Home Secretary entirely satisfied with the argument that he is deploying? He cannot have it both ways. Either the Government are introducing into British domestic law the convention on human rights—or the bits that they have identified—and are setting up mechanisms whereby the courts can make declarations of compatibility or incompatibility, or they are not. If the Judicial Committee of the House of Lords, in its court capacity, says that certain legislation—on, say, abortion—is incompatible with the convention, and if the Government, speaking through their Ministers in the House of Commons, say, "You may say that, but we don't care and we don't intend to do anything about it," there is a lacuna in the constitution, which is unsatisfactory. The highest court in the land will be saying one thing, while Parliament, through its elected Members, will be saying another. That will lead to friction. With respect to the Home Secretary, it is no good his saying that he will leave it like that and will rely on clause 4(6). That leaves a vacuum that needs to be filled, and it will be filled by public dissension.

Mr. Straw

I do not accept that. Yes, indeed we would rely, as would any Ministers, on clause 4(6). That is its purpose. It does not leave a lacuna, because it states: A declaration under this section (`a declaration of incompatibility')—

  1. (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
  2. (b) is not binding on the parties to the proceedings in which it is made."
That means that, as long as the Government, with the House's approval, say that they do not accept the declaration of incompatibility, the validity, continuing operation or enforcement of, in this case, the abortion legislation, would continue. I shall develop that point later.

Sir Nicholas Lyell

I have been listening extremely carefully to the Home Secretary. I am grateful that we agree on the key point that the Bill is not to become a substitute constitution. I hesitated before getting to my feet, because I felt that the Home Secretary might be going to deal with this point, but what worries me—this formed the second part of my speech—is how the citizen will know where he or she stands. There is no structure in the Bill to force a Minister, or to enable a public authority through a Minister—we have suggested the latter—to say that, if there is no agreement and if someone wants to pursue a case, the case must go to Strasbourg, and new clause 2 would remedy that.

I do not want my intervention to be too long, but I want to make one more point. Let us consider a case that must be exercising the Home Secretary, just as it exercised me. It is that of Phyllis Bowman and the Society for the Protection of the Unborn Child and the effect of that case on our election law—that 24,000 or so leaflets could be put through the doors of the constituents of the hon. Member for Halifax (Mrs. Mahon). That seems to have driven a coach and horses through our election law.

Had that been the ruling of the House of Lords—although I do not think that it would have been—I am sure that it would be a good example of the kind of case that we would wish to push to Strasbourg to try to get it overturned as being a step too far. How would citizens know where they stood? How would Phyllis Bowman know where she stood? That is why we need an answer.

Mr. Straw

The Phyllis Bowman case has caused difficulties that we intend to address in future legislation, because the decision was taken by the European Court of Human Rights in Strasbourg and not by our domestic courts.

For the sake of argument, let us assume that an equivalent judgment had been made in the form of a declaration of incompatibility by the Judicial Committee of the House of Lords. It has been suggested that the Government would hide away and refuse to explain their position. Within five minutes of such a judgment being made, the Government would be asked for their position. If I happened to be the relevant Minister, I should say that we would study the judgment and no doubt consult the Law Officers, but within a matter of weeks we would have to explain our position, and quite rightly, too. If we did not volunteer our position—that would be an abdication of good government—we would be brought to the House to explain ourselves.

In those circumstances, there would be a number of options. First, we could accept the declaration of incompatibility and bring forward remedial orders, and that is a straightforward process. Secondly, we could make a compromise and say that we half accepted it—a solution that normally appeals to Ministers and their legal advisers—and cobble something together. [Interruption.] I speak in general terms.

Thirdly, we could say that we were very sorry, but we disagreed with it. Assuming that we gained the support of the House in that, we could say that we did not accept it for very good reasons and that the current law was right. Then the party to the proceedings—in this case, Mrs. Bowman—would say either, "This is no good. I am going to take the case to Strasbourg," or, "I have fought the good fight and I will put up with what has happened." In the first case, she would exercise her right of appeal and go to Strasbourg. Meanwhile, we would continue to apply the existing law unless and until there was an adverse judgment in Strasbourg.

As the right hon. and learned Gentleman knows, there has to be some certainty about the law. The alternative is that Mrs. Bowman, as the initiator of the proceedings, would decide not to proceed to Strasbourg, in which case, notwithstanding the declaration of incompatibility, the existing electoral law would continue to be valid and would continue in its operation and enforcement.

Precisely because of that, and with respect to the right hon. and learned Gentleman, I genuinely do not see that there is any need whatsoever for Government to be given a right of appeal to Strasbourg. Why should the House have a right of appeal to Strasbourg when simply doing nothing but saying that we did not accept a declaration of incompatibility would put it in the position it wanted? What is the point?

Let me make this point particularly to the hon. and learned Member for Harborough: it would have been necessary to give the Government and public authorities a right of appeal in respect of an adverse declaration of incompatibility in the Judicial Committee of the House of Lords had the Bill provided that decisions and judgments of the Judicial Committee overrode decisions by the House. If we had made the House subordinate to a supreme court, of course we would need a right of appeal to Strasbourg, as we would then have been providing a written constitution, and, essentially, vesting the House of Lords and the European Court of Human Rights with the function of a supreme court and removing the sovereignty of Parliament. We have not gone down that route.

Sir Nicholas Lyell

The cavalry is waiting to come to the Home Secretary's rescue. I have listened carefully to him and it is clear to me that either I have failed to get my point across or he does not understand the structure of his Bill. The purpose of the new clause is not to give the Government and public authorities a right of appeal, because it is not within the power of the House to do so. I am sure that the Home Secretary understands that. Only by changing the convention could the Government be given a right of appeal to Strasbourg. The convention gives the right to citizens only. That is the reason for the somewhat convoluted structure of the new clause, which those who have read it carefully will have noticed.

The new clause would do exactly what the Home Secretary says he will do. I was fascinated to listen to the Home Secretary telling the House that the Government will follow the structure that we have recommended in the new clause. If the Government agree with that, they should put it on the statute book. Otherwise, the citizen will not know where he stands. Will the Home Secretary please answer that point?

Mr. Straw

The proposition before the House on 24 June was that there should be a right of appeal exercised by the Government.

Sir Nicholas Lyell

I drafted the new clause before 24 June. Its purpose is the same today, and it means what it says.

Mr. Straw


Mr. David Lock (Wyre Forest)


Mr. Straw

I shall give way to my hon. Friend.

Mr. Lock

I have listened to the debate with enormous interest, and it seems somewhat bizarre. Are not our opponents are making two criticisms of the Bill: first that it takes sovereignty from the House; and secondly that it politicises the judiciary? They are now proposing a new clause that will result in judges telling the House what it has to do, and will kick-start a political process—both of which consequences they vehemently oppose. I do not understand the logic or consistency of their position. Does my right hon. Friend agree with that analysis?

Mr. Straw

I understand my hon. Friend's point. I am glad about what the right hon. and learned Member for North-East Bedfordshire has said, because we have narrowed the ground considerably. He accepts what I say about the nature of the process and asks us to accept the new clause. However, we do not believe that it is necessary. All the processes that I have described are bound to happen anyway.

The hon. and learned Member for Harborough said that some great lacuna might develop—not a minor procedural hole, but a substantive black hole on the enforcement of the law. I do not think that I am misinterpreting him when I say that he was talking about a limbo developing in which no one knew where they were. People will know where they are. There is no question about that, because the situation will be clear. The speed of the Government response will depend on the complexity of what is handed down from the other place and on other matters, but the Government will respond.

Sir Nicholas Lyell

This leaves me breathless after 11 years in government. The idea that the Government come leaping forward with clear answers to difficult questions immediately does not correspond with the experience of any parliamentarian who has been in the House for any time. That is clearly not the Home Secretary's experience. The judgment on Bowman and the SPUC has stood for many months and we have not heard a whisper on how it should be dealt with. The Chahal judgment has stood for more than a year and we have not heard a whisper on that. The Home Secretary is saying that a report to the House as suggested in the new clause will happen in practice. That defies experience.

5 pm

Mr. Straw

I do not accept what the right hon. and learned Gentleman says. He mentioned the Chahal case; it makes our point, not his. We have acted on the issuing of the judgment. The Special Immigration Appeals Commission Act has provided a remedy to the mischief identified by the European Court in the Chahal case. That is a very good example. Since the original Chahal decision was made under the Government of whom he was a member, it is fair to point out that, quite quickly after the Chahal judgment, the previous Administration said what they needed to do, and got on with it.

The other point to be made about the Chahal judgment was that it was made by the European Court of Human Rights in Strasbourg and not by the Judicial Committee of the House of Lords. Had it been a judgment of the Judicial Committee and had the Bill been in force, it would have been open to the Government to say, "We do not accept this, and we shall simply run the procedures of the Immigration Act 1971 as we always have." They would have been very unwise to do that in that circumstance, because it would have been obvious that, since the matter was one of the liberty of a subject, there would be an appeal to Strasbourg, which almost certainly the Government would have lost. The Government may have decided—such considerations must be borne in mind—that it was worth taking such a risk for other reasons of state.

The new clause, which would tie us down, anticipates that, wherever there is a question of an incompatibility and it has not been the subject of a remedial order, there is likely to be an appeal to the European Court. I have already explained that there may not be such an appeal. Despite all the arguments about some hole developing in law enforcement, the default setting is the status quo.

My very last point is on the issue of both sides having a right of appeal—something that the hon. and learned Member for Harborough mentioned. He implied that the new clause was somehow a paver for both sides having a right of appeal. To dispose of that, I hope that I have satisfied the House that a circumstance in which both sides have the right of appeal would be incompatible with the sovereignty of Parliament and could arise only if, say, we had gone down the track of accepting that the European convention was a substitute for a written constitution and that Parliament would be subordinate to European courts. We do not intend to go down such a track.

Sir Nicholas Lyell

I apologise to the Home Secretary for intervening again, but this is the last time that I can draw out from him the key point. As—I think—he accepts, it is not possible for any member state to create a right of appeal for Governments or public authorities without the agreement of all other member states. However, if we want issues to be taken to Strasbourg, we must have a structure whereby the Government or public authorities can legitimately refuse to abide by a declaration of their own courts, thus forcing the citizen to go to Strasbourg. The Home Secretary rightly pointed out that clause 4(6) provides a good deal of what is required in that direction.

Where the Home Secretary's argument does not, in my opinion, meet the requirements both of effective justice and proper legislation, is when he says that the Government will always come forward promptly with a declaration about what they will do, despite the fact that there will be nothing on the statute book to say that they should do so. We are relying entirely on the alertness of the Government to achieve what is suggested by new clause 2.

We do not seem to disagree in principle about the need to achieve what the new clause suggests. Taking my last opportunity to ask the Home Secretary to reconsider, I submit that it would be wiser for him to accept new clause 2 and take it on to the statute book. There would then be a framework enabling all citizens involved in litigation—and, what is more, the far greater number of citizens interested in the outcome of such litigation—to know where they stood.

At the moment, that is not clear; the position is dependent on the efficiency and good will of the Government. I do not doubt their good will, but with difficult issues, especially those involving public authorities, and perhaps equally those involving the Government themselves, the likelihood is that there would be periods of delay and uncertainty, and people would not know where they stood. The statement that a ruling of the Judicial Committee was to have no effect would cause great confusion.

I ask the Home Secretary—

Mr. Deputy Speaker (Sir Alan Haselhurst)

Order. The right hon. and learned Gentleman is extending the right of intervention much too far.

Mr. Straw

Thank you, Mr. Deputy Speaker. I think that this will be my last point.

The right hon. and learned Gentleman would have a point if we were simply relying on the efficiency and good will of the Government, but we are not. We are relying on the black letter of clause 4(6). The default setting, which everybody knows about, is that a declaration of incompatibility by the Judicial Committee or the House of Lords (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made. There is certainty there.

The right hon. and learned Gentleman asked me what would happen with the lower courts, and whether they would follow the judgment. No, they would not, because clause 4(6) is clear: a declaration does not affect the validity, continuing operation or enforcement of the provisions in respect of which it is given. There is absolute clarity there. In a judicial and political sense, the status quo ante would apply. Then, obviously, the Government would have to consider, and in most cases they would consider the position pretty rapidly. No time limit is set down, but the reverse could not apply. We could not, for example, say that the declaration of incompatibility would have force unless or until the Government said the reverse. That would create considerable uncertainty, and that would be one of the effects of new clause 2.

I understand the point that the right hon. and learned Gentleman and his hon. Friends have made, and the debate has been illuminating, at least in making it clear that there is understanding on both sides of the House that giving the Government a substantive right of appeal to the European Court in Strasbourg would be outwith the structure of the convention.

I think that there is also understanding that that would be unnecessary for the Government, given the structure of the Bill. The issue comes down to one of procedure when there is a declaration of incompatibility. I am not making a nit-picking point about the phraseology or drafting of the new clause, because of course, if we accepted the principle behind it, those could be dealt with by the draftsmen.

However, the overall effect would be different from what I believe is the clearer idea contained in clause 4(6). That is why I hope that the right hon. and learned Gentleman will withdraw his new clause. If he does not, we shall have to resist it.

Sir Nicholas Lyell

I am sorry for making a long intervention, Mr. Deputy Speaker, but this is a very important point. I shall not withdraw the new clause, for this fairly straightforward reason. This will be a real, practical problem. The Attorney-General, speaking to the Bar conference this year, made the point that there will need to be a great deal of training in the matter. We shall see a lot of human rights cases—

Mr. Paul Stinchcombe (Wellingborough)

indicated assent.

Sir Nicholas Lyell

I am sure that the hon. Gentleman, who is nodding to me, recognises that.

There will be a great many attempts to make human rights points, particularly in the criminal sector—for example, in relation to manners of arrest. From time to time, there will be rulings that are adverse to our existing law and that we may or may not wish to accept. The Government will have to think about those matters, and decide whether they will amend the law in this House or whether they want the matter to go to Strasbourg on the basis that our courts have gone too far and that Strasbourg will give a wider margin of appreciation or discretion to us, as a member state, to make our own law. Unless there is a proper structure—whereby the Government come forward within a reasonable time to state what is happening—the courts will be in real difficulty.

I do not think that the Home Secretary understands the point, and I ask him to focus on it for a second. It is no good for the House to point to clause 4(6) and say that, because the clause states that a declaration of incompatibility shall have no effect on the law of this land, the rulings of the Judicial Committee of the House of Lords will not be followed in the lower courts in the meantime. It would be a recipe for absurdity for the lower courts—during a lacuna in which we say nothing—to pay no attention to a House of Lords ruling on a point of criminal procedure in this context until we amended the law. It would be far better for the Government to be clear, and for them to have a statutory requirement to come forward promptly to say either what they are doing or that the matter must go to Strasbourg.

In the interests of clarity and good legislation, I am afraid that I must ask the House to divide on this issue.

Question put, That the clause be read a Second time:—

The House divided: Ayes 132, Noes 372.

Division No. 363] [5.11 pm
Ainsworth, Peter (E Surrey) King, Rt Hon Tom (Bridgwater)
Amess, David Lait, Mrs Jacqui
Ancram, Rt Hon Michael Lansley, Andrew
Arbuthnot, Rt. Hon James Leigh, Edward
Atkinson, Peter (Hexham) Letwin, Oliver
Baldry, Tony Lewis, Dr. Julian (New Forest E)
Beggs, Roy (E Antrim) Lidington, David
Bercow, John Lilley, Rt Hon Peter
Beresford, Sir Paul Lloyd, Sir Peter (Fareham)
Blunt, Crispin Loughton, Tim
Boswell, Tim Luff, Peter (Mid-Worcs)
Bottomley, Peter (Worthing W) Lyell, Rt Hon Sir Nicholas
Brady, Graham MacGregor, Rt Hon John
Brazier, Julian Mackay, Rt Hon Andrew
Brooke, Rt Hon Peter Maclean, Rt Hon David
Browning, Mrs Angela Madel, Sir David
Bruce, Ian (S Dorset) Malins, Humfrey
Burns, Simon Maples, John
Butterfill, John Mates, Michael
Chapman, Sir Sydney (Chipping Barnet) Maude, Rt Hon Francis
May, Mrs Theresa
Chope, Christopher Moss, Malcolm
Clappison, James Nicholls, Patrick
Clark, Rt Hon Alan (Kensington & Chelsea) Norman, Archie
Ottaway, Richard
Clark, Dr Michael (Rayleigh) Paige, Richard
Clifton-Brown, Geoffrey Paice, James
Collins, Tim Paterson, Owen
Cormack, Sir Patrick Pickles, Eric
Cran, James (Beverly) Prior, David
Davies, Quentin (Grantham & Stamford) Randall, John
Redwood, Rt Hon John
Dorrell, Rt Hon Stephen Robathan, Andrew
Duncan, Alan Robertson, Laurence (Tewkesbury)
Duncan Smith, Iain
Evans, Nigel Robinson, Peter (Belfast E)
Fabricant, Michael Rowe, Andrew (Faversham & Mid-Kent)
Flight, Howard
Forsythe, Clifford Ruffley, David
Forth, Rt Hon Eric St. Aubyn, Nick
Fox, Dr. Liam Sayeed, Jonathan
Gale, Roger (N Thanet) Shepherd, Richard
Garnier, Edward Simpson, Keith (Mid-Norfolk)
Gibb, Nick (Bognor Regis) Smyth, Rev Martin (Belfast S)
Gill, Christoper Spelman, Mrs Caroline
Gillan, Mrs Cheryl Spicer, Sir Michael
Gorman, Mrs Teresa Spring, Richard
Gray, James (N Wilts) Stanley, Rt Hon Sir John
Green, Damian Steen, Anthony
Greenway, John Streeter, Gary
Hague, Rt Hon William Swayne, Desmond
Hamilton, Rt Hon Sir Archie Syms, Robert
Hawkins, Nick Tapsell, Sir Peter
Hayes, John (S Holland) Taylor, John M. (Solihull)
Heald, Oliver Taylor, Sir Teddy
Heathcoat-Amory, Rt Hon David Townend, John
Horam, John (Orpington) Tredinnick, David
Howarth, Gerald (Aldershot) Trend, Michael
Hunter, Andrew Trimble, Rt Hon David
Jack, Rt Hon Michael Tyrie, Andrew
Jackson, Robert (Wantage) Walter, Robert
Jenkin, Bernard Wardle, Charles
Johnson Smith, Rt Hon Sir Geoffrey Whitney, Sir Raymond
Whittingdale, John
Key, Robert (Salisbury) Widdecombe, Rt Hon Ann
Wilkinson, John Yeo, Tim (S Suffolk)
Willetts, David Young, Rt Hon Sir George
Wilshire, David
Winterton, Mrs Ann (Congleton) Tellers for the Ayes:
Winterton, Nicholas (Macclesfield) Mr. Stephen Day and Mr. Nigel Waterson.
Woodward, Shaun
Ainger, Nick Clarke, Rt Hon Tom (Coatbridge and Chryston)
Ainsworth, Robert (Cov'try NE)
Alexander, Douglas Clarke, Tony (Northampton S)
Allan, Richard Clelland, David
Allen, Graham Clwyd, Ann (Cynon V)
Anderson, Janet (Rossendale and Darwen) Coaker, Vernon
Coffey, Ms Ann
Armstrong, Ms Hilary Cohen, Harry
Ashdown, Rt Hon Paddy Coleman, Iain
Ashton, Joe (Bassetlaw) Cook, Frank (Stockton N)
Atherton, Ms Candy Cooper, Yvette
Atkins, Charlotte Corbett, Robin
Austin, John Corston, Ms Jean
Baker, Norman Cotter, Brian
Ballard, Jackie Cousins, Jim
Banks, Tony (West Ham) Cranston, Ross
Barnes, Harry Crausby, David
Barron, Kevin Cryer, Mrs Ann (Keighley)
Bayley, Hugh Cryer, John (Hornchurch)
Beard, Nigel Cummings, John
Beckett, Rt Hon Mrs Margaret Cunningham, Jim (Cov'try S)
Beith, Rt Hon A. J. Curtis-Thomas, Claire
Bell, Stuart (Middlesbrough) Dafis, Cynog
Benn, Rt Hon Tony Dalyell, Tam
Bennett, Andrew F. Darvill, Keith
Benton, Joe (Bootle) Davey, Edward (Kingston)
Bermingham, Gerald Davey, Valerie (Bristol W)
Berry, Roger Davidson, Ian
Best, Harold Davies, Rt Hon Denzil (Llanelli)
Blears, Ms Hazel Davies, Geraint (Croydon C)
Blizzard, Bob Davies, Rt Hon Ron (Caerphilly)
Blunkett, Rt Hon David Dawson, Hilton
Borrow, David Dean, Mrs Janet
Bradley, Keith (Manchester Withington) Denham, John
Dismore, Andrew
Bradley, Peter (The Wrekin) Dobbin, Jim (Heywood)
Bradshaw, Ben Donohoe, Brian H.
Brake, Tom (Carshalton) Dowd, Jim (Lewisham)
Brand, Dr. Peter Drown, Ms Julia
Breed, Colin Eagle, Anqela (Wallasey)
Brinton, Mrs Helen Eagle, Maria (Liverpool Garston)
Brown, Russell (Dumfries) Edwards, Huw
Bruce, Malcolm (Gordon) Efford, Clive
Buck, Ms Karen Ellman, Mrs Louise
Burden, Richard Ennis, Jeff (Barnsley E)
Burgon, Colin Etherington, Bill
Burnett, John Field, Rt Hon Frank
Butler, Mrs Christine Fisher, Mark
Byers, Rt Hon Stephen Fitzpatrick, Jim
Cable, Dr. Vincent Fitzsimons, Lorna
Campbell, Alan (Tynemouth) Flint, Caroline
Campbell, Mrs Anne (Cambridge) Flynn, Paul (Newport W)
Campbell, Menzies (NE fife) Follett, Barbara
Campbell, Ronnie (Blyth V) Foster, Rt Hon Derek
Campbell-Savours, Dale Foster, Don (Bath)
Canavan, Dennis Foster, Michael Jabez (Hastings and Rye)
Caplin, Ivor
Casale, Roger Foster, Michael J. (Worcester)
Caton, Martin Fyfe, Maria (Glasgow Maryhill)
Chaytor, David Galloway, George
Chidgey, David Gapes, Mike (Ilford S)
Chisholm, Malcolm George, Andrew (St. Ives)
Clapham, Michael George, Bruce (Walsall S)
Gerrard, Neil
Clark, Rt Hon Dr. David (S Shields) Gibson, Dr. Ian
Gilroy, Mrs Linda
Clarke, Charles (Norwich S) Godman, Dr. Norman A.
Clarke, Eric (Midlothian) Godsiff, Roger
Goggins, Paul Kingham, Ms Tess
Golding, Mrs Llin Kirkwood, Archy
Gordon, Mrs Eileen Kumar, Dr. Ashok
Gorrie, Donald Ladyman, Dr. Stephen
Griffiths, Jane (Reading E) Lawrence, Ms Jackie
Griffiths, Nigel (Edinburgh S) Laxton, Bob (Derby N)
Griffiths, Win (Bridgend) Lepper, David
Grocott, Bruce Leslie, Christopher
Grogan, John Levitt, Tom (High Peak)
Gunnell, John Lewis, Terry (Worsley)
Hall, Mike (Weaver Vale) Linton, Martin
Hall, Patrick (Bedford) Livingstone, Ken
Hamilton, Fabian (Leeds NE) Lock, David (Wyre F)
Hanson, David Love, Andrew
Harman, Rt Hon Ms Harriet McAllion, John
Harris, Dr. Evan McCabe, Steve
Heal, Mrs Sylvia McCafferty, Ms Chris
Healey, John McDonagh, Siobhain
Heath, David (Somerton) McDonnell, John
Henderson, Ivan (Harwich) McGuire, Mrs Anne
Hepburn, Stephen McIsaac, Shona
Heppell, John McKenna, Rosemary
Hesford, Stephen Mackinlay, Andrew
Hill, Keith (Streatham) Maclennan, Rt Hon Robert
Hodge, Ms Margaret McNulty, Tony
Hoey, Kate (Vauxhall) MacShane, Denis
Home Robertson, John Mactaggart, Fiona
Hood, Jimmy (Clydesdale) McWalter, Tony
Hoon, Geoffrey McWilliam, John
Hope, Phil (Corby) Mahon, Mrs Alice
Hopkins, Kelvin Mallaber, Judy
Howells, Dr. Kim Mandelson, Rt Hon Peter
Hoyle, Lindsay Marsden, Gordon (Blackpool S)
Hughes, Ms Beverley (Stretford and Urmston) Marsden, Paul (Shrewsbury and Atcham)
Hughes, Kevin (Doncaster N) Marshall, Jim (Leicester S)
Humble, Mrs Joan Martlew, Eric
Hurst, Alan (Braintree) Maxton, John
Hutton, John Meacher, Rt Hon Michael
Iddon, Dr. Brian Merron, Gillian
Illsley, Eric Michael, Alun
Jackson, Ms Glenda (Hampstead and Highgate) Michie, Bill (Sheffield Heeley)
Michie, Mrs Ray (Argyll)
Jackson, Helen (Sheffield Hillsborough) Miller, Andrew
Mitchell, Austin
Jenkins, Brian Moonie, Dr. Lewis
Johnson, Alan (Hull W) Moore, Michael
Johnson, Miss Melanie (Welwyn Hatfield) Moran, Ms Margaret
Morgan, Alasdair (Galloway and U Nithsdale)
Jones, Barry (Alyn)
Jones, Mrs Fiona (Newark) Morgan, Julie (Cardiff N)
Jones, Helen (Warrington N) Morgan, Rhodri (Cardiff W)
Jones, Ieuan Wyn (Ynys Môn) Morris, Ms Estelle (B'ham Yardley)
Jones, Ms Jenny (Wolverhampton SW) Morris, Rt Hon John (Aberavon)
Mudie, George
Jones, Jon Owen (Cardiff C) Mullin, Chris
Jones, Dr. Lynne (Birmingham Selly Oak) Murphy, Denis (Wansbeck)
Murphy, Jim (Eastwood)
Jones, Martyn (Clwyd S) Murphy, Paul (Torfaen)
Jones, Nigel (Cheltenham) Naysmith, Dr. Doug
Jowell, Ms Tessa Norris, Dan (Wansdyke)
Kaufman, Rt Hon Gerald Oaten, Mark (Winchester)
Keeble, Ms Sally O'Brien, Bill (Normanton)
Keen, Alan (Feltham) O'Brien, Mike (N Warks)
Keen, Ann (Brentford) O'Hara, Eddie
Keetch, Paul Öpik, Lembit
Kelly, Ms Ruth Osborne, Ms Sandra
Kemp, Fraser Palmer, Dr. Nick
Kennedy, Charles (Ross Skye and Inverness W) Pearson, Ian
Pendry, Tom (Staybridge)
Kennedy, Jane (Wavertree) Perham, Ms Linda
Khabra, Piara S. Pickthall, Colin
Kidney, David Pike, Peter L.
Kilfoyle, Peter Plaskitt, James
King, Ms Oona (Bethnal Green and Bow) Pond, Chris (Gravesham)
Pope, Greg (Hyndburn)
Pound, Stephen Stoate, Dr. Howard
Powell, Sir Raymond Strang, Rt Hon Dr. Gavin
Prentice, Ms Bridget (Lewisham E) Straw, Rt Hon Jack
Prentice, Gordon (Pendle) Stringer, Graham
Prescott, Rt Hon John Stuart, Ms Gisela
Prosser, Gwyn Stunell, Andrew
Purchase, Ken Sutcliffe, Gerry
Quinn, Lawrie Swinney, John
Radice, Giles Taylor, Rt Hon Mrs Ann (Dewsbury)
Rammell, Bill
Rapson, Syd (Portsmouth N) Taylor, David (NW Leics)
Raynsford, Nick Taylor, Matthew (Truro)
Reed, Andrew (Loughborough) Temple-Morris, Peter
Reid, Dr. John (Hamilton N. and Bellshill) Thomas, Gareth R. (Harrow W)
Tipping, Paddy
Rendel, David Todd, Mark (S Derbyshire)
Rogers, Allan Tonge, Dr. Jenny
Rooker, Jeff Touhig, Don (Islwyn)
Rooney, Terry Trickett, Jon
Ross, Ernie (Dundee W) Truswell, Paul
Rowlands, Ted Turner, Dennis (Wolverh'ton SE)
Roy, Frank (Motherwell) Turner, Desmond (Brighton Kemptown)
Ruddock, Ms Joan
Russell, Bob (Colchester) Turner, Dr. George (NW Norfolk)
Russell, Ms Christine (City of Chester) Twigg, Derek (Halton)
Twigg, Stephen (Enfield)
Ryan, Ms Joan Tyler, Paul (N Cornwall)
Salter, Martin Vaz, Keith (Leicester E)
Sanders, Adrian Vis, Dr. Rudi
Savidge, Malcolm Wallace, James
Sawford, Phil Walley, Ms Joan
Sedgemore, Brian Ward, Ms Claire
Shaw, Jonathan Wareing, Robert N.
Sheldon, Rt Hon Robert Watts, David
Shipley, Ms Debra Webb, Steve (Northavon)
Simpson, Alan (Nottingham S) Welsh, Andrew
Singh, Marsha White, Brian
Skinner, Dennis Whitehead, Dr. Alan
Smith, Rt Hon Andrew (Oxford E) Wicks, Malcolm
Smith, Angela (Basildon) Williams, Rt Hon Alan (Swansea W)
Smith, Miss Geraldine (Morecambe and Lunesdale)
Williams, Alan W. (E Carmarthen and Dinefwr)
Smith, Jacqui (Redditch)
Smith, John (Glamorgan) Winnick, David
Smith, Llew (Blaenaw Gwent) Winterton, Ms Rosie (Doncaster C)
Smith, Sir Robert W. (Aberdeenshire and Kincardine) Wise, Audrey
Wood, Mike (Batley)
Soley, Clive Woolas, Phil
Southworth, Ms Helen Worthington, Tony
Spellar, John Wray, James (Glasgow Baillieston)
Starkey, Dr. Phyllis Wright, Dr. Tony (Cannock)
Steinberg, Gerry Wyatt, Derek
Stevenson, George
Stewart, David (Inverness E) Tellers for the Noes:
Stewart, Ian (Eccles) Mr. David Jamieson and Mr. Clive Betts.
Stinchcombe, Paul

Question accordingly negatived.

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