§ 5.9 p.m.
§ LORD LAYTON rose to call attention to the fact that a European Court of Human Rights will shortly be set up to adjudicate on alleged breaches of the European Convention on Human Rights and Fundamental Freedoms to which this country is a party and to the fact that it is already permissible for petitions regarding alleged breaches to be put forward by individuals as well as by Governments in respect of nine member countries of the Convention, and to ask Her Majesty's Government whether they will now accept the jurisdiction of the Court and the right of individual petition by ratifying the optional clauses of the Convention. The noble Lord said: My Lords, last September a ceremony took place in one of the international pavilions of the Brussels Exhibition to celebrate the fifth anniversary of the coming into effect of the European Convention on Human Rights and Fundamental Freedoms. But the occasion was more than a birthday party; it was also the occasion of a step forward in the evolution of this Convention, for on that day two more of the parties to the Convention took the opportunity of declaring their acceptance of the jurisdiction of the European Court of Human Rights, if and when it was established. This brought the number of such acceptances up to the figure of eight, which is the minimum needed to bring the Court into being. Early in 1959, therefore, this important and significant institution will come into existence.
§ Though Britain was the first country in Europe to ratify the Convention on Human Rights (incidentally Britain did not at that time accept the optional clauses) little attention has been given in England to these proceedings, and it seems appropriate that this House, which has frequently in the past discussed the question of a Convention on Human Rights, should take note of the progress that has been made and consider what steps we should take in the second chapter of the history of this important institution. The noble and learned Viscount the Lord Chancellor, who, like myself, was present at the Brussels celebration, agreed that the time was appropriate for the Govern- 602 ment to state their position, and suggested that a reply to an Unstarred Question would be a suitable form in which to do so.
§ In passing, I may say that it was most appropriate that the Lord Chancellor should have been there, because as Chairman of the legal committee which drafted this Convention of 1949 he was the doctor who brought the child to birth. In the discussion which is permitted on an Unstarred Question the questioner can speak only once, and therefore has to choose whether to speak before or after the reply is given. As much of the documentation is unfamiliar to Members of this House—a lot of it is not circulated in this country—I propose to take the former course before the Lord Chancellor makes his statement of policy, and give, as briefly as possible, the background to the decisions now to be taken.
§ At the outset, it is important to distinguish clearly between the European Convention and the Universal Declaration proclaimed by the United Nations in 1948. The Universal Declaration is a statement of intent by the signatories. It includes a considerable number of "social" rights, such as the right to work, hours of labour, leisure and so on. These social and economic conditions vary in time and place and are certainly not justiciable or capable of being regulated by an international organisation. Such declarations have their value and I should be the last to question their importance in setting a standard of good behaviour among the nations; but their enumeration involves no binding commitment on anybody, nor does it set up any means of enforcement.
§ The European Convention, on the other hand, is a mutual obligation, voluntarily entered into by those countries which sign and ratify it, to maintain a few only of the rights included in the Universal Declaration—the few being those which would appear to be most justiciable and suitable for implementation under a binding document. In the words of the preamble to this Convention, it was designed as a step towards creating "a collective guarantee" in Western Europe of these few basic freedoms. That is the purpose and concept of this Treaty which has been accepted and which now binds fourteen countries.603
§ Professor Waldock, International Law professor at Oxford and Chairman of the Commission on Human Rights, was fully justified, on the occasion to which I have referred, in describing the conclusion of this Convention as the highest achievement of the Council of Europe up to date—and mark these words, my Lords—and a notable landmark in the development of the status of the individual in international law.
§ It is worth noting, too, at this point, its place in the general pattern of Europe's evolution in the past decade. It is a platitude to say that if the solidarity of Europe is to be established on a permanent foundation progress must be made on each of three main fronts: the military, the economic and the political. On the first of these, we have seen the ups and downs of N.A.T.O., the E.D.C. and Western Union. On the economic front, there have been Marshall Aid, O.E.E.C., the Payments Union, the Steel and Coal Community, the Common Market, the project of the Free Trade Area and many minor operations. That is a formidable list. But on the political side the total is meagre: a wordy battle lasting for several years between the Federalists and the Functionalists (a horrid word); and even the ambitious progress to institute a political Community of the Six has almost been lost sight of. Yet if priority had to be given to one of those three fronts, my feeling is that the priority should be given to the political approach. For, after all, a composite military organisation can survive only if it is the servant of a political policy; and so far as economic progress goes, the nations will not go very far in accepting a position of interdependence unless they are certain of the political angle of approach of those with whom they are to be tied.
§ This Convention does not set up an elaborate political structure. It is concerned only to preserve the root principles of democracy. But, by doing so, it should create and preserve an atmosphere in which other political institutions may one day grow. The Convention and its Protocol—to use the words commonly used in his report by Professor Waldock (to whom it will be obvious that I owe a great deal of the information I am going to lay before the House) "the European 604 Bill of Rights"—contains about a dozen rights and freedoms. I do not think I need read them, but they are available in the Convention itself. I have given a sufficient indication of these rights, which start with the right to life; freedom from torture, inhuman or degrading treatment; freedom from slavery; the right to liberty and all the rights associated with habeas corpus; the rights of trial and so forth.
§ In Clause 1 of the Convention the member States make the declaration, blunt and unadorned, that they will secure these rights and freedoms to everyone within their jurisdiction. The Convention seeks to ensure that this will be implemented in two ways. On the one hand, the parties must each take steps to see that their national law is in harmony with the rights enumerated in the Convention and its Protocol; on the other hand, if accused of a breach, they agree to facilitate investigation by the Commission of Human Rights, and if the case is established against them to accept the decision either of an international court (if one exists) or that of the Committee of Ministers.
§ The relation of the Convention to internal law varies with the different legal systems of the various countries. These instruments—that is to say, the Convention and its Protocol—do not have the force of law in six of them: namely, in the four Scandinavian countries, in Britain and in Ireland. In those countries the Constitution does not give treaties the force of law, nor has any special law been promulgated in relation to these rights. The courts of these countries therefore are not competent to give effect to the European Bill of Rights. In them the rights and freedoms of the individual law derive from the local law alone.
§ On the other hand, there are eight countries, members of the Convention, Whose laws do give to the Convention and Protocol the force of law. In The Benelux countries, in Germany, Italy, Turkey and Greece, after receiving Parliamentary approval, and being promulgated, the two instruments acquired the character of Statute Law applicable in domestic courts. In Austria, the last country to adhere, the Convention and Protocol have been embodied in the fundamental law of the Constitution. I am mentioning only a few cases, indicating the operation of the Convention. In Greece, the courts 605 have already been called upon to consider whether Greek law concerning freedom of religion is consistent with the Convention. German courts have applied the Convention in a number of cases, and in one case the court set aside an expulsion order that was held to be in contravention of the Human Rights Convention.
§ But whether a country does or does not embody the Bill of Rights as part of its domestic law, every member State—and that includes us, of course—is now under an international obligation to ensure that its laws are in conformity with the Bill of Rights and, if necessary, to amend them so as to produce that situation. Let me take the illustration of Norway. Norway, having regard to the guarantee of freedom of religion, has amended an historic provision in her constitution under which Jesuits were forbidden to enter that country. So much for harmonisation (to use a word which is now common form in the economic sphere of international solidarity) in the legal sphere. This is, after all, an example of what Mr. Ernest Bevin once told the House of Commons: that perhaps the surest way to get consolidation was by uniform legislation in different countries.
§ As to enforcement, the Convention sets up two organs for investigation and judgrrent—the Commission and a Court. Complaints may be received from two sources—member Governments and individuals. But petitions may be received from individuals, or from organisations on their behalf, only if the country concerned has declared its willingness to receive them. That is the first option which figures in my Question. When a petition is received, it is the Commission's task to ascertain whether the complaint is admissible; to ascertain whether all remedies have been exhausted internally; to examine the facts and to seek to bring about a friendly settlement. The provision in the Convention is not a question of challenge but a duty of mediation—a duty which has been exercised in quite recent times in regard to Cyprus, which has been before the Commission now for twelve months.
§ If the mediation is successful, the case is reported to the Committee of Ministers. If it is not, the Commission draw up a report with such recommendations as they think fit, and send it to the Committee of Ministers, whose task hitherto, in the 606 absence of a court, has been to decide by a two-thirds majority whether or not there has been a violation of the Convention. All parties to the Convention have agreed to regard as binding any decision which the Committee may make, and to carry out any measures required by the decision of the Committee. If and when the Court comes into being, all documents will be sent to the Court, instead of to the Committee of Ministers, if the parties concerned have accepted its compulsory jurisdiction. That is the second of the options which figure in my Question.
§ Let me say here that the pooling of sovereignty involved in accepting decisions of the European Court, or of a two-thirds majority of the Committee of Ministers, is one of the few decisions that Great Britain has accepted since the war. In this connection I would call your Lordships' attention to some of the misgivings expressed on this score at the time when Britain first ratified the Convention by laying it on the Table of the two Houses of Parliament. In particular, some noble and learned Lords—and I had great sympathy with them—wondered what safer guardian of human rights could be found than an institution with the traditions and record of your Lordships' House. But the Convention passed without opposition, for on consideration many of the critics (and this applies to the then Lord Chancellor, the late Lord Jowitt) recognised the great political importance of getting Germany to agree voluntarily to accept an obligation to the rest of Western Europe to maintain basic democratic freedoms, and to accept also measures of safeguard as a permanent feature of Europe's peace-time structure. In this Convention Germany, as well as the other countries, accepted the right of intervention voluntarily as a permanent fact. If we had to agree, it was felt that it would be a bargain, very cheap at the price.
§ The surrender of sovereignty, however, is not perhaps as far-reaching as my short statement would imply. The text defining the rights is circumscribed in many ways. The actual clauses are the result of years of discussion. Parties to the Convention are permitted to make reservations at the time of signing, and some have done so. There are three options, two of which I have already mentioned. It is optional, 607 not compulsory, for a country to extend the Convention to territories for which it is responsible. Britain, indeed, has done that for forty-two countries in the British Commonwealth. Then there are two escape clauses, which are of significance because they touch the nub of the problem which any attempt of this kind runs up against.
§ The object of Article 17 is to prevent groups of individuals within a State from seeking to establish an authoritarian regime by gradually undermining the Constitution under the shield of the freedoms guaranteed by the Convention. The Commission have already had to apply this Article. The German Communist Party was indicted before the Federal Constitutional Court as an illegal organisation under the German Constitution. After a prolonged hearing, the Communist Party was held to be illegal. The Communist Party complained to the Commission that their right to freedom of association had been violated. The liquidation of a political Party, says Professor Waldock, is clearly a matter to be regarded with an extremely jealous eye. The Commission, however, having studied the proceedings, held that the activity of the German Communist Party did fall within the special provision in Article 17, and that it was therefore not entitled to invoke the guarantee of freedom of association enshrined in the Convention.
The other escape clause is Article 15, which comes into play only
in time of war or other public emergency threatening the life of the nation.
At such times parties to the Convention may suspend certain of their obligations under the Covenant
to the extent strictly required by the exigencies of the situation.
But they must not, except in certain defined circumstances, suspend the clause which guarantees the right to life, or that which guarantees freedom from torture or slavery or from retrospective criminal legislation. Any derogation of rights under Article 15 must, of course, be reported to the Secretary-General and the notification must be made public.
§ Professor Waldock in his Report covers several matters of interest in regard to procedure and the kind of individual petition that had been 608 received. There is no evidence of an overwhelming flood of petitioners, which might have been expected. Most of the applications were rejected on broad grounds: for example, the Commission cannot receive a petition concerning the Hitler régime applying to years before the Convention came into being; nor is it a mere revising court of the national courts. Very few individual petitions so far have survived to be considered by the Commission. The Chairman rightly regards this winnowing process and the result of it as satisfactory evidence—and I think he is right—that Western European countries are on the whole satisfactorily maintaining the rule of law. There would be something radically wrong with Europe if there were a flood of petitions which could be established. Nevertheless that does not mean that the Commission has no responsible task, for what is important is that the right of petition should remain in the background. Experience teaches what happens if we do not do that.
§ I come in conclusion to the two options. Of the two, the right of individual petition is perhaps the most fundamental. When the Convention was first drafted in 1949 there was no thought of not making this optional proposition. It was indicated that there should be petitions from Governments or from individuals. I was reminded the other day, in refreshing my mind with the division list, that three Members of the Conservative Party voted for that draft in 1949. Those three Members of the Conservative Party were respectively Mr. Harold Macmillan, Sir David Maxwell Fyfe, and Mr. John Foster representing Sir Winston Churchill. So one may assume that a Convention which does not stumble at the right of individual petition but puts it in on equal terms with the right of Governments has very good high authority behind it. I would say that most people who have followed this problem would agree that unless it is open to the individual to petition under a Bill of Rights it is not really of very great value, though it is clear, and indeed it is almost axiomatic, that it is going to be very difficult to get Governments to take up individual cases unless there is a political reason for doing so. That, again, is proved by the evidence, because it may be, and indeed is, most important that the Cyprus case should be submitted 609 to the procedure of and judged by the Convention, not to say whether there was a civil disturbance, not to say whether there was such an emergency, but to say whether or not the action taken by Britain is in accordance with the escape clause or not.
§ The arguments in favour of recognising the compulsory jurisdiction of the Court are not dissimilar. It is true that for the purposes of the Convention there is an alternative in the decision made by a two-thirds majority of the Committee of Ministers. But I wish to submit to the House that a political decision, as distinct from a juridical decision, is not what should normally he the peak of the operation of this Convention on Human Rights. In asking the Government to accept the compulsory jurisdiction of the Court, we are not increasing the extent to which we surrender or pool sovereignty. We have already done that. We are in that position. We must accept the decision. We have agreed that it is right that we should accept a European judgment. The only question now is: should that judgment be a juridical expression or a political one?
§ There are many other aspects which in due course I am sure will come before your Lordships, but I have already taken up a full share of the time available and I will conclude. At the first Assembly of the Council of Europe the hope was expressed that the Convention would be the first Statute of the Council of Europe, and four years later that hope was fulfilled. It is not a perfect document and will no doubt be improved upon, as most other documents of this kind are, in the light of experience. But Professor Waldock has recorded his opinion on its first three years of work and described it as, on the whole, well conceived and well drafted. My Lords, a Bill of Rights as the foundation of the Rule of Law is very much in the British tradition. The Convention owes much to British ideas and to British lawyers, politicians and civil servants. It has been supported by all three British Parties. To assist in strengthening the prestige and authority of the Convention and widening its scope is one of the most certain ways in which this country can help Europe. For political and psychological reasons I suggest that this is a suitable moment for demonstrating our support publicly and to the 610 whole of Europe, by taking the steps which are mentioned in my Question in relation to the right of individual appeal and the jurisdiction of the Court of Human Rights.
§ 5.39 p.m.
§ LORD BEVERIDGE
My Lords, I rise to join in the hope which my noble friend Lord Layton has expressed, that the noble and learned Viscount the Lord Chancellor will find himself able to give a sympathetic and positive answer to this Question. There is no need for me to repeat what my noble friend has just said: I shall put my case on quite different grounds; and I shall put it in as few words as possible.
There may be some noble Lords, as there are certainly some people outside this House, who think that no further action in defence of human rights can possibly be needed by this country or in this country; that here all the human rights which really matter are safe and have been safe for decades or centuries. It so happens that for the past seven or eight months I have been studying what I regard as one of the most vital of all those human rights, though not perhaps a very widely spread one—the, right of freedom of expression particularly in teaching, learning, studying and writing in universities. That right has been attacked in the past twenty-five years by successive tyrants—there are many of them, from Hitler and Mussolini onwards.
I think I may claim that in fact, if one looks at the history of those twenty-five years, we in Britain have done more than any other country to give practical defence to that right, by rescuing the victims of these tyrants and enabling them to go on in their great service to humanity, by teaching, writing and studying freely. But it is not enough for any nation to preen itself on its own performances and virtues. We in Britain love peace, but we have come to realise that we cannot get peace by ourselves; we must act with other nations. We in Britain love freedom of expression and other human rights; but I urge in the strongest possible way that, as suggested by my noble friend Lord Layton, we should also formally and completely associate ourselves with other free nations, to learn from them and work with them.
I need hardly say that I personally accept the two practical proposals made 611 by my noble friend; that we should admit the right of individual petition and that we should accept compulsory jurisdiction. I hope that Britain can add to all that she has done for freedom and human rights in the past by associating herself wholeheartedly on these two points, and on other similar points as they arise, with other free nations. I hope that the noble and learned Viscount the Lord Chancellor, in answering this Question, will accept both these points which show realisation of the central, general point that I have put forward: that free nations must work together for human freedom as they must, we all know, work together for peace.
§ 5.43 p.m.
§ LORD BIRDWOOD
My Lords, I rise to intervene for only one moment in support of the purpose behind the Question of the noble Lord, Lord Layton. I find it curious that this country, which was the first to ratify the Convention in March, 1951, should be among the last four out of fourteen to accept these important optional clauses. As a layman who would always accept the supremacy of our own law, and indeed our own thought in relation to human rights (and, after hearing the noble Lord opposite, I assume that that supremacy is not challenged in any way), I cannot believe that we have anything to lose or to fear either in accepting the jurisdiction of a European Court or in accepting the individual right to present a petition to the Commission. But there is in fact another reason which goes far beyond the acceptance of the two optional clauses—a reason that I would submit, with the noble Lord, we in the West are concerned with—namely, strengthening the moral fabric of the free world. In doing so, we make an effort to demonstrate surely to those who are in doubt just the difference between freedom and slavery.
In asking Her Majesty's Government to accept these two optional clauses all we are doing is asking them to reinforce that demonstration. Over and over again, in the years to come, this perennial challenge as to our own interpretation of individual liberty will have to be faced. Those who support a quite different interpretation of human liberty may come to doubt our sincerity in the matter if we leave any room open to that doubt. 612 It is for that reason that I would ask Her Majesty's Government now to place the matter beyond all ambiguity. Going through the Convention I noticed that the German Federal Republic, when depositing their complete ratification in December, 1952, included West Berlin within the terms of the Convention. What clearer way could we find of re-stating our own position than to complete at this particular moment an instrument which is accepted in this vital outpost of the free world as their own declaration of faith? It is in that sense mainly that I would support the noble Lord, Lord Layton, in his Question.
§ 5.47 p.m.
§ LORD SALTER
My Lords, I beg leave to add just a few words. I think it is extremely suitable that the noble Lord who introduced this Question to us should have done so, for I do not think there are any members of the Consultative Assembly of the Council of Europe who have done more than—I rather think probably none who has done as much as—he has, with the possible exception of the latest acquisition to our numbers from the other place, the noble Lord, Lord Boothby; and in this particular matter, as Lord Layton has pointed out, the Lord Chancellor has himself given a lead to us and to the Council of Europe.
The noble Lord who has just spoken has pointed out that we in this country are in a small minority among the signatory members of the Convention who have neither embodied the Convention in their domestic law, nor modified our domestic law in order that it may be in harmony with it; nor have accepted the compulsory jurisdiction of the court; nor have accepted the right of individual application. I should like, in particular, to ask the Lord Chancellor to tell us, when he replies, whether the question of harmonisation of our own law with the Convention, so far as there may be any differences, has been definitely studied, and whether the Government have taken any decisions upon that. It is, of course, our definite obligation under the Convention to see that our law is in harmony, whether by embodiment of the Convention in our own law or by some such amendment of our law to bring it into harmony, as Norway has done, in one way or the other. I think we should be assured that action is being taken, if it has not already been taken. The same 613 is true, I think, of acceptance of the jurisdiction of the Court as compulsory.
I will not add anything further to what the noble Lord, Lord Layton, has said as to individual application, but in conclusion, and in conformity with what has been said already by Lord Birdwood, I should like to stress the major importance of taking the kind of step, not towards the abolition of national sovereignty, but towards its merging into the wider international or supranational structure, such as this Convention gives us the opportunity of doing. We may say that our law is so nearly the law contemplated in the Convention that no change is needed. But if it is argued that for that reason it is less necessary for us to make a change, it is also equally the fact that any small change which may be required would be less difficult. I should like strongly to suggest the importance of doing anything we can, by example as well as by exhortation, to see that, particularly among those emerging countries whose fundamental law has not been established, or is being changed, the rights specified in this Convention should be embodied. We have only to think of some of the countries newly emerging either into independence or into self-government to see what a great safeguard it would be for the future if they could be induced to embody this Convention in their own domestic law.
Speaking a little more widely, I believe it to be equally true that we all realise that, in view of the political, economic and military situation at the present time, there must be what we might call a dilution of national sovereignties or a merging of national sovereignties into something larger; and that this cannot be done by peaceful means in just one step, but must come gradually. The kind of opportunity which this Convention offers to us of taking a step in that direction is one which I feel it would be extremely undesirable not to use.
§ 5.53 p.m.
§ LORD CONESFORD
My Lords, the House is very much indebted to the noble Lord, Lord Layton, for introducing this subject and for the way in which he did it. I should also like to add a word of gratitude on my own behalf because he was good enough to send me a copy of Professor Waldock's speech which he had found helpful and which I believe all students of this subject are 614 bound to find most useful. I was glad that the noble Lord, Lord Layton, drew a contrast, in many respects, between the Universal Declaration of Human Rights which was approved by the General Assembly of the United Nations on December 10, 1948, and what he conveniently referred to as the European Convention which is the subject of his Motion. I do not know whether that is its official name, but it is a convenient name by which to refer to it.
I confess that I have no very great admiration for the Universal Declaration, but possibly that is due not to what it contains but to the circumstances which ensured that those resounding declarations of principle were accompanied by their reversal in action. It is, I think, an irony that at the time when this Universal Declaration of Human Rights was made, slavery and deprivation of liberty were covering the face of Europe to an extent, I suppose, unparalleled in recorded history. I share the almost universal conviction of English lawyers to which Professor Waldock himself gave expression in that talk, and attach very much more importance to remedies than to grand declarations of human rights.
How much greater, as Professor Dicey pointed out in his day, are the services to human liberty conferred by the mere existence of the writs and Acts of Habeas Corpus than are any benefits to be derived from those great declarations of rights which have figured in many other Constitutions! In order to remind the House that I am not exaggerating about the irony of the 1948 Declaration, let me quote just one Article from it. Article 13, paragraph 2, of the Universal Declaration runs as follows:Everyone has the right to leave any country, including his own, and to return to his country.That document was assented to by those countries which are now surrounded by guns and barbed wire, from which the inhabitants are allowed to escape only if they escape from a ship or aeroplane visiting another country.
I have shown, I hope, that I have no particular admiration for a Declaration of Human Rights accompanied by a disregard of all those rights in practice, where no remedy whatsoever is provided. But, as the noble Lord, Lord Layton, has pointed out, the position of the European 615 Convention is quite different. That is a Convention among (on the whole) like-minded people who use words with roughly the same connotation and have some intention of carrying out the undertakings which it contains. There is, too, a real attempt to make the matter justiciable, and to provide practical remedies. I must add that there are in the Convention one or two points which puzzle me. I should like to put them in an interrogative manner to my noble and learned friend the Lord Chancellor. Let me say at once that I have given him no advance notice of these points and, although I think that his immense knowledge of the whole subject may enable him to reply on the spot, I shall make no complaint of any kind if he does not give me an immediate answer to any of them.
As the noble Lord, Lord Layton, has pointed out, ratification of the Convention by this country does not automatically make the Convention a part of our domestic law. Nevertheless, difficulty would be caused if for any considerable length of time there were a discrepancy between our domestic law and the obligations of this Convention. I should like now to mention three points which struck me on reading this document. The first is a rather curious one, and the discrepancy between our own law and the Convention could perhaps be remedied without too much difficulty. But what worries me a little is that our own law is, in my view, rather superior to the Convention, and if we alter it it will not necessarily be to the advantage of mankind in general.
Let me give your Lordships the example of Article 7, paragraph (1), which runs as follows:No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.So far, I think, the whole House would say that that is admirable. That is an express prohibition of retrospective action in criminal matters which we all believe to be a right prohibition. But the words that follow seem to me to be much more dubious:Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.That is a much more curious doctrine. Let me say at once that in this it follows 616 the example already set by the Universal Declaration, but it is certainly not our law at present.
I think I am right in saying (my noble and learned friend on the Woolsack will correct me if I am not) that, in general, if there is a revision by Statute of a penalty for an offence, the court imposes the new penalty at the time when the offender comes before it. The doctrine which is set out in this second sentence seems to be based on the curious illusion that the criminal is fully entitled to commit his offence if he prefers the penalty to refraining from crime. It is as much as to say that he has a sort of bargain with society: that society says, "If you commit the offence, this is the penalty; but provided you are prepared to undergo that penalty, by all means go on to commit the offence." There is something of that doctrine in this (as it appears to me) curious sentence. In any event, I think my noble friend will agree with me that if we are to be bound by this second sentence in the first paragraph of Article 7 we may need to have legislation to alter our existing law. We shall then get the most paradoxical results. We may have two people apprehended at the same time; but the one who has committed an offence a day or two later than the other, who has escaped custody longer, may be liable to a quite different penalty. I do not think there is any obvious justice in that.
The next matter, which I think is rather interesting, is in Article 10. The noble Lord, Lord Beveridge, was very much interested, quite rightly, in the imparting of knowledge, information and ideas. Article 10 is very much in point. Let us look at what the first paragraph of Article 10 says:Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.Then come these curious words:This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.These are three specific exceptions. But what about the person who wishes to impart ideas through the drama? What would happen to a new Bernard Shaw? No mention is made of the licensing of stage plays. I certainly do not wish to debate in this House today whether stage 617 censorship is a good thing or a bad thing, but at least the House generally is of the opinion that that is a matter we could decide for ourselves. But, if I am right, we could be hauled before the European bodies that are being set up if they said we were violating this right by having a stage censorship. I dare say that this would be very good fun, but I think this is a consequence that may not be generally realised.
My third example is under Article 11:Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions "—in the plural—for the protection of his interests.The only words that I have inserted were "in the plural". That is not an accidental use of the plural; it occurs also in the Universal Declaration of Human Rights. Personally, I have no objection to this at all, but I think it would astonish a great many people of considerable influence in the trade union world if they were informed that every man had the right to belong to at least two trade unions. However, that is the position.
I have given three examples. They may not be of great importance compared with the other great matters with which Lord Layton quite rightly dealt, and on which he expressed himself so admirably, as have others who followed him, with the result that I need not follow him on them. But I must say that I am ready with a rather more open mind, perhaps, than has been indicated in the previous speeches to await the reply of my right honourable and learned friend on the Woolsack on whether we should at once take the two steps that have been suggested. It may be right to do so, but it may be that some of these matters require rather more investigation. I conclude by thanking the noble Lord, Lord Layton, for introducing this subject and for enabling my noble and learned friend the Lord Chancellor to give a reply, to which we all look forward.
§ 6.7 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I should like to join the noble Lords who have already conveyed the thanks of the House to my noble friend Lord Layton for initiating this debate; and I should like 618 also to join the noble Lord, Lord Salter, in taking this opportunity of thanking my noble friend Lord Layton, not only for this debate but for all that he has done over so many years now for the Council of Europe. That is a debt which we could never fully discharge, and I am glad to be able to tell him how grateful we are for what he has done.
He was good enough to remind your Lordships that this is not the first time that I have had to consider this Convention. In fact, as he said, I was Chairman of the Legal Committee which began their consideration nine years ago, and I shall say just a word or two in a moment on how it came into being. But I want to say first of all that, although Great Britain has not signed the two optional Declarations to which this Motion refers (and I shall come back to that in a moment), it ought to be made quite clear that it would be wrong and mischievous to deduce from this that we are slackening in any way in the defence of those human rights and values which are our own pride and inheritance. As noble Lords have already said, we were the first of the signatory States to ratify the Convention. In addition to that, as has not been said so far in this debate, if my recollection is right, we extended its application to no fewer than forty-two of our dependent overseas territories.
I think it is worth pausing for a moment and looking at the Convention, as did the noble Lord, Lord Layton, and I shall try to do it as briefly as I can. There are really two points of view from which I should like to consider it. The first obligation which the Convention made mandatory is that the member States of the Council should guarantee some sixteen fundamental rights and freedoms inside each of their countries. Like Lord Layton, I am not going through the lengthy list—your Lordships can see the Convention—but those freedoms include the physical freedoms, judicial freedoms, family freedoms, religious freedoms, political freedoms and—what is most important—the right to have a remedy for an infringement of any of these freedoms inside your own country. That is the first obligation of the Convention. The second—and this is extremely important—is to accept international examination of any complaint of an infringement made by a member State to the European Commission on Human 619 Rights, which is the receiver and investigator of complaints. The third obligation is to accept a decision by a two-thirds majority of the Committee of Ministers of the Council of Europe that an infringement had taken place. Now, when one considers—and this, I think, needs to be stated—that Great Britain was prepared not only to guarantee the existence of those rights but to subject herself in respect of this country and forty-two overseas dependencies to international examination of their maintenance, that is, I believe, a large and generous gesture unequalled in the Colonial history of the world.
My Lords, the three obligations that I have mentioned are those from which there is no escape. Then there are two optional clauses: one is the acceptance of the jurisidiction of the Commission in the case of petitions alleging infringements by individuals as well as member States, and the other is the acceptance of a Court to try disputed matters. In considering that, I think it is important (as my noble friend Lord Layton obviously did) to bear in mind two provisions of the Convention which show that its framers were very conscious that it might well be used by those whose real and ultimate purpose was an authoritarian State. Such persons might well use the provisions of the machinery provided in the Convention solely in order to make difficulties and troubles in the interests of their ultimate aim of Communism or some other form of authoritarian government. It was in order to deal with that aspect that we introduced the two provisions to which Lord Layton has referred and which were well described by Professor Waldock at Brussells in his address to which I was so delighted to listen.
The first is Article 17, which says that nothing in the Convention is to be interpreted as implying for any stated group of persons any right to engage in any activity aimed at the destruction or undue limitation of the rights and freedoms guaranteed in the Convention. The object of that Article was to prevent groups or individuals within a State from attempting to establish an authoritarian regime by gradually undermining the constitution under the shield of the freedoms guaranteed by the Convention. As Lord Layton said, that Article has already been used in regard to the 620 Communist Party in Germany. The other provision, I agree with my noble friend, is Article 15, which comes into play only "in time of war or other public emergency threatening the life of a nation," and in these circumstances authorises a Government to take measures deviating from certain of its obligations under the Convention to the extent strictly required by the exigencies of the situation—and, as the noble Lord said, the Government that does it has to report its doing so to the Secretary-General.
Now these were considerations which showed what was in our minds. We were most anxious—and I think I speak for the 101 members of the Council at that time—that there should be a Convention on Human Rights. We were desperately anxious, as these Articles show, that it should not be used by ill-disposed people for the purpose of subverting the very rights which it was desired to guarantee. The noble Lord, Lord Layton, has referred with great kindness to discussions nine years ago, and, although it would be nostalgically interesting, I am not going to follow him into those in any detail except that I should like your Lordships to know how the matter came into being. I had been working on this for some years with a friend of mine, Monsieur Pierre-Henri Teitgen, a former Minister of Justice in France. In 1949, after discussions on a railway train which the noble Lord will remember (because there were no wagons-lits, and we had to sit up all night), I put this proposal before the Assembly, and they were good enough to elect me as Chairman of the Legal Committee. I produced my draft. There was considerable discussion on the various points in the Committee, and then it came back to the Assembly. There was then further considerable discussion in the Assembly.
If I may give a very mild Roland for the noble Lord's Oliver, I may say that I have turned up the Daily Telegraph of January 9, 1949, and I find that it says:Lord Layton, the only British Liberal in the Assembly, set off the argument by asking for the deletion of the two clauses relating to the right to own property and the right to decide your children's education, and the one guaranteeing the right to marry and found a family. He felt that the inclusion of these matters at this stage would hinder the purposes of the Charter.They are in the Charter. The noble Lord's argument was one very worthy of 621 being put forward—namely, that the Charter should be as restricted as possible and should not go into the economic field. I quote this only to show that at that time we were all feeling our way towards the best possible Charter.
After the end of that session, it went to the Committee of Ministers. They worked at it and produced it for us again the following year. Then it went back to my Committee, and we considered it. I want to say (because I am sure that the noble Lord will agree that this was so), that when it had been to the Committee of Ministers and came back to the Assembly—I do not want to quote the extracts from my own speech—I put it to the Assembly that we should approach the proposals of the Ministers in a spirit of conciliation and endeavour to secure that a Convention should exist. Again there were different viewpoints, and there had to be some field of compromise, before it was ultimately agreed. However, the Convention was signed in November, 1950, in Rome, as the noble Lord may remember, and Great Britain was the first State to ratify the Convention in the form in which the Committee of Ministers wanted it; that these points should be optional.
It is true that this country has not, either under the Labour Government or under the Conservative Government, made the declaration under Article 25 recognising the competence of the Commission to receive individual petitions, nor has it declared, under Article 46, its acceptance as compulsory of the jurisdiction of the Court. My right honourable friend the Secretary of State for Foreign Affairs will consider most carefully all that has been said to-day, but it is right that I should put frankly to your Lordships the difficulties that have been in the mind of my right honourable friend, and not only in his mind but also the minds of his predecessors, up to and including Mr. Ernest Bevin.
In spite of all that my noble friend Lord Layton has said, it cannot be denied that the right of individual petition is open to considerable abuse, and the opportunity for, and possible extent of, abuse must be considered in the circumstances of the world to-day which my noble friend Lord Conesford has so graphically described. It is the misfortune of this sort of world that 622 individual petitions might become as much a method of political warfare as a method of ventilating the genuine grievances of individuals. Even though it may be assumed, as the speech of my noble friend Lord Layton indicated, that in most cases such petitions would be rejected by the Commission as inadmissible, nevertheless they would in the meantime have achieved their primary purpose of mischief-making propaganda against the laws and way of life of this country.
My noble friend referred to the figures given by Professor Waldock in his admirable speech. If he analyses them, he will find that 351 out of 360 cases considered were rejected without reference to the countries concerned. Of course, that cuts both ways, like so many arguments. On the one hand, my noble friend Lord Layton can say that they have been rejected. But if 351 out of 360 petitions have been rejected, then it is almost beyond peradventure that they will have contained a number of the kind I have described—petitions which were vexatious and put in for propaganda purposes and not from an actuality. That is the first point which one might consider. I think that these numbers show that there would be many petitions, and there are always too many credulous people only too ready to believe that "there is no smoke without fire". In a time of cold war in so many places in the world, it is important that no unnecessary handle should be given to troublemakers within or without this country.
There is a secondary point which applies to this country and which affects the point raised by my noble friend Lord Layton and developed by my noble friend Lord Salter—that is, that Great Britain is one of those countries in which treaties do not automatically become part of the law of the land as such. On the other hand, it is the treaty-making practice of this country that we do not ratify treaties unless our law is in a state in which we can carry them out. Although the constitutional safeguards of our laws are more often contained in the Common Law of decided cases than in written Statutes (if my noble friend Lord Salter has any doubt, I would tell him that I am really quoting Dicey, who is a fairly good authority on that point), we are 623 quite certain that our law does guarantee for our citizens the rights and freedoms that are contained in the Convention.
My noble friend Lord Conesford raised most interestingly the question of any rule of law in an omnicompetent Parliament. As he knows from his studies, that is a very difficult point. My friend Professor Arthur Goodhart has suggested that the real solution is that it puts upon the Parliamentary assemblies of this country the responsibility for maintaining the rule of law. It is up to us to see that no Statute contains something which would conflict with our rule of law with regard to personal freedoms or, of course with any treaty obligations which we took on. It is a difficult point in an omnicompetent Parliament, because, while we can put anything we like into our legislation, it is up to us to see that our legislation maintains the treaty.
I can assure my noble friend Lord Salter that we went into this point carefully. He will realise that at that time I was not suffering from the cares of office, so I went into it from the other end of the gun; and I must say, in fairness to the Home Office, of which I had not then the honour of being in charge, that they went into it with the greatest possible care, from the point of view of the general honour of our treaty-making powers—because we do not ratify a treaty unless our law is such that we are in a position to carry it out. I hope that that deals at any rate for the moment with the point that was raised.
I see the noble Lord, Lord Layton, rising. After the slight fracas I caused the other day, I have decided that any Member of the House can interrupt me until he breaks the record of the most;reverend Primate who interrupted me nine times in one speech. I am delighted to be interrupted by anyone.
§ LORD LAYTON
I am a little at sea as to whether I have the right to interrupt. I have no right to reply, but I presume that I have the right to put a question if one arises. I should like to put this point to the noble and learned Viscount. I was wondering whether these arguments were intended to apply particularly to this country. Is that a fear of opening the door to propaganda? Is that a danger which applies to all the countries 624 concerned, or one applicable specially to this country?
§ THE LORD CHANCELLOR
I am grateful to the noble Lord. We are particularly susceptible to that difficulty. That was my first argument on the circumstances of the cold war. My second argument, the noble Lord will appreciate, was that in a country that has not a written Constitution, and where individual freedoms are guaranteed by judicial decision, we do stand in a different position. I had not quite finished that point: I dealt with it, I am afraid, rather at length, because my noble friend Lord Salter raised a point and I extended my answer beyond what I had intended to say about it. However, perhaps I may now return to that point.
No individual can, under Article 26, have his petition considered by the Commission until he has exhausted the remedies open in his own country. I concede the theoretical argument that can be made, which is: "You say that English Common Law guarantees these freedoms. You may be wrong. Why not leave it to the Court?" But if your Lordships consider the practical effect of having arguments as to whether, taking the whole summation of English Common Law, we have an exact equation with the Convention, I really think that it would give rise to an unequalled opportunity for frivolous and vexatious cases, when at the end of the day one would not have got any further forward, because no one seriously says that English Common Law does not protect the rights of freedoms, at least to the extent which the Convention says.
The third point here is, I think, some answer to the point which the noble Lord, Lord Layton, specifically put to me. If the right of individual petition were accepted for the United Kingdom, Her Majesty's Government, having extended the Convention to forty-two overseas territories, would at least—and I put the case at its lowest—be subjected to pressure to extend it also, under Article 63, to the colonial territories. I do not think that that would be understood in our colonial territories. Despite our great and continuous work of trusteeship and training, there are considerable sections of the populations in these countries which, politically, are still very immature. I hope noble Lords will not 625 take that against me: I am simply stating the fact that there are sections of the populations that are politically immature.
It is important there to maintain the respect for a single and undivided legal authority which they recognise as responsible for their own affairs, and the confusion that would result would undoubtedly be exploited by extremists to undermine the authority of the Colonial Government concerned. I think that is a particular point. I could give examples, but that would really be contributing to the danger which I am mentioning. I am not going to mention a single name, but I would ask your Lordships to look at the map of our Colonial Empire, and I think you will agree that that is a reasonable point. I put it with the greatest moderation, and I hope that I shall not be misunderstood.
My Lords, I now turn to the question of the Court and our reasons for not recognising its compulsory jurisdiction. Again, both the Labour and Conservative Governments—the Labour Government in power when we signed the Convention, and the Conservative Government since—have thought, as I have understood their spokesmen, that the Convention is important, not so much for providing a rigorously defined system of law but rather for setting out a number of general principles which could be applied to the different legal systems of the countries concerned. My noble friend Lord Conesford (I say this in parenthesis) picked out two parts where the drafting is obviously imperfect, and as one largely responsible for the drafting I am only surprised that he could find bad drafting in but two sections, because it is a very difficult matter to put in terms of legal obligation these principles; and, on the whole, if I may give myself one pat on the back, I do not think it has been at all badly done.
However, the lead that we wanted to give to the world was that these principles, which, whatever may be said about the drafting of certain words, are clearly stated in legal terms, could be applied to every legal system of the countries concerned. In other words, an assessment of whether or not a State has infringed one of the provisions of the Convention cannot, with the world as it is, and with the Convention in its present form, always be taken on entirely technical and 626 legal grounds. Again I want to be careful in putting this point, because I do not want in any way to appear to denigrate either the Convention or its drafting, bat noble Lords will appreciate that not only the facts but any legal issues raised by an infringement to-day are considered by the Commission, as Professor Waldock described. Then it is the duty of the Commission, if they think that there is an infringement, to make a report and they will in that report set out their views of the facts. So that the Foreign Ministers will have that report on the facts and the law and, of course, the resources of their own countries; and they will then come to a decision.
As I have said, I want to make it clear that that is unavoidable. There is no question here that Great Britain resiled from that derogation of sovereignty. Great Britain is leaving to the international body the decision of whether she has kept this Convention or whether she has breached it. I think, and all the occupants of the great office of Foreign Secretary of Great Britain have thought, that that is important at the present time time when you have to make what is a value judgment—that is, a judgment in which there are political assessments given, rather than an act dealing with a purely justiciable issue. It is a very difficult question, and I appreciate the other views that are held. In the circumstances of to-day I should like to test it by the two escape clauses that have been mentioned in deciding whether, under Article 17, what is really happening is a bouversement of everything we want. There are bound to be considerable arguments, under Article 15, as to whether a state of emergency exists.
I thought I ought to put to your Lordships how Foreign Secretaries have felt—that that is a matter for a more flexible view than the judgments of what I am sure will be a most admirable court. I have tried to put it very fairly, but as many of your Lordships have known me for many years I hope you will not think that I am slackening in regard to the faith. I have said that I do not think the British Government are, and I have tried to give the reasons; but if your Lordships will bear with me for two minutes longer I will give you the reasons which set me out on this path. I hope my quotation is not unfair—it is quite short. 627 These were the words I used at the Nuremberg trials:But we are determined to do our utmost to see that it "—that is, the Nazi spirit—will pass from Germany, and that the spirit which produced it will be exorcised. It may be presumptuous for lawyers, who do not claim to be more than the cement of society, to speculate or even dream of what we wish to see in its place. But I give you the faith of a lawyer. Some things are surely universal: tolerance, decency, kindliness. It is because we believe that there must be a clearance before such qualities will flourish in peace that we ask you to condemn this organisation of evil.When such qualities have been given the chance to flourish in the ground that you have cleared, a great step will have been taken. It will be a step towards the universal recognition that—From that speech I went on in the next few years to try and draft the Convention of Human Rights.'sights and sounds, dreams happy as her day,And laughter learnt of friends, and gentlenessAnd hearts at peace 'are not the prerogative of any one country. They are the inalienable heritage of mankind.
§ 6.45 p.m.
§ LORD SILKIN
My Lords, I should like to begin, as I think most of those who have spoken have begun, by thanking the noble Lord, Lord Layton, for raising this question. I do it in no conventional sense. Most people winding up a debate take the opportunity of thanking the mover, possibly for the opportunity of making a speech, but I thank him because he has rendered a great service to this House, to the country and, I think, to a great many Members individually who have never had the opportunity of making a study of the Convention for the Protection of Human Rights. The noble Lord, Lord Layton, has really introduced them to this subject. In any case, he was kind enough to give me a great deal of information of which I was not aware at all. He made a most powerful speech, and induced the noble and learned Viscount to make a speech to which we all listened with the greatest of pleasure.
Needless to say, I approach this question without any spirit of dogmatism at all. I know too little about it to be dogmatic. Sometimes that is a justification for being dogmatic, but I feel it would be impertinent for one to approach this subject in the spirit of having made 628 up one's mind in advance. I have listened to the speeches, and one has to come to some conclusion. The noble and learned Viscount has stated that what has been said in this debate will be considered by the Foreign Secretary. I know the noble and learned Viscount well enough to know that that is not a mere perfunctory statement; it is a serious promise; and the noble and learned Viscount will himself see to it that the matter is considered by the Foreign Secretary, not only because he has promised to do so, but because we all know how much he has this question at heart. If we had any doubt about it his speech to-day would have reassured us. I would regard as reasonably satisfactory the assurance that the matter will be studied and reconsidered by the Foreign Secretary.
I should like to make one or two observations on the debate as I have followed it up to this point. I am sure the noble and learned Viscount did not intend to make a debating point—I do not think he would on a question of this sort—but he did make the point that the Labour Government had not accepted the two optional clauses and this Government had not. But I would remind him that the ratification by the British Government took place on March 8, 1951, and he will remember that the course of events did not give the Labour Government much time after March 8, 1951, to do much about it. I say, therefore, with great respect, that the fact that it was not ratified by the Labour Government is no indication of their attitude to these two very difficult questions.
I have listened to the case that the noble and learned Viscount made as to the difficulties about accepting the two optional clauses. Of course, there is some force in what he has said; I am sure he would not say anything that had not some force in it. I am sure he would also be the first to recognise that there are very good answers to every proposition that he put forward. For instance, with regard to the question of the right of the individual to be allowed to petition being open to considerable abuse, I think that that argument can be very greatly exaggerated. I do not think the mere fact that an individual comes along with a complaint against a Government would carry a great deal of weight in the world—there are so many cranks, and by and 629 large we can assume that a person who made representations against a Government would be, generally speaking, a crank, as can be seen from the number of petitions that have been rejected without reference to the Government itself. Only nine, apparently, out of 360 were considered worthy of being considered at all in the sense of asking the Government to express some view on it. I do not know how many of the nine were ultimately found to be justified.
§ THE LORD CHANCELLOR
If my memory of Professor Waldock's figures are correct, there were two, and one is still being considered. There was one other case where, without any admission of liability, some money was paid; so the total is two and a half.
§ LORD SILKIN
It does not seem to me to present any great difficulty, but I see the point: that it could be used as a means of propaganda. I myself, however, would take the chance; I feel that on the whole the gesture would have great advantages. After all, the noble and learned Viscount himself must have thought so at some time in his existence, because he put it into the Convention as at least a possibility, at least something which can be capable of being accepted. If he had thought it was wholly inadmissible by this Government, I am sure he would have resisted its going into the Convention at all; but it is in. And a number of Governments have actually accepted this provision without necessarily suffering any great injury. I would not say it is my final view, but my provisional view, having heard the discussion, is that on that point I would take the chance and accept it. After all, the Commission can dismiss a case as being frivolous and vexatious—the noble and learned Viscount is well aware of that expression. That itself, coming from the Commission, would confer a certain amount of odium on such a petition.
Nor do I think the practical point is very serious. I will not argue it, but I was not particularly impressed with the practical point. I see the force of the fact that we would be under pressure to bring in forty-two other territories or such fewer number as we now have responsibility for, and that might be embarrassing. But 630 of course we are under no obligation to do so. I think it would be a very proper gesture if we came in ourselves and did not necessarily bring in the others. I imagine that that would be quite possible, because each of those territories is there in their own right as subject entities and not coming under our own umbrella. If, on the other hand, I am wrong about that, I see that that might present some difficulties, although, even so, I should not think they are necessarily insuperable.
I feel that we have had a very valuable and informative discussion, and I personally should he ready to rest on the assurance given by the noble and learned Viscount that the matter will be reconsidered by the Foreign Secretary. I hope he can give us an assurance that at some time when that consideration has taken place we shall be informed of the result of that consideration.
§ THE LORD CHANCELLOR
My Lords, if the noble Lord has the Convention, he will see that Article 63 (1) says:Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary-General of the Council of Europe that the present Convention shall extend to all or any of the territories for whose international relations it is responsible.So it is ourselves, speaking for the Colonies—not a separate act on their part. I think that emphasises the point I put.
§ LORD LAYTON
Article 63 (4) actually gives the answer. It says:Any State which has made a declaration in accordance with paragraph 1 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Commission to receive petitions from individuals, non-governmental organisations or groups of individuals in accordance with Article 25 of the present Convention.
§ House adjourned at three minutes before seven o'clock.