§ 2.45 p.m.
§ LORD WADE
My Lords, I beg leave to move the Motion standing in my name on the Order Paper:
"To call attention to the need for protection of human rights and fundamental freedoms,"—
and here I use the words from the European Convention—
"to the increasing power of the State in relation to the individual, to the throat to personal privacy resulting from technological advance; and to possible measures, including the enactment of a Bill of Rights."
I had originally tabled a shorter Motion, simply drawing attention to the need for a Bill of Rights, but on reflection I thought it might be more helpful if I were to give some indication as to the ground which I wished to cover in this debate.
I find some difficulty in drafting a Motion for a Wednesday debate in your Lordships' House. One has to try to ensure that the Motion is not too limited in scope, on the one hand, and not too all-embracing, on the other. I hope I have not erred too much in the latter direction. I am most grateful to all those noble Lords who have resisted the greater attraction of Ascot in order to be here this afternoon, and I should like to express my thanks to those noble Lords who intend to take part in the debate. I shall certainly look forward to their contributions with great interest.
I cannot claim to have any originality in raising the subject of the liberties of the individual. The late Lord Samuel, who for many years was the Leader of my Party in this House, on a number of occasions introduced the Liberties of the Subject Bill, and I think it is fitting that his son, the present noble Viscount, should be present here to-day and should be taking part in this debate. There have of course been other, more recent, Bills on specific aspects of this subject. There 1027 was the Bill of the noble Lord, Lord Mancroft, on the invasion of privacy, and there have been several Private Members' Bills introduced in the House of Commons.
Although this is not new, the whole subject of the protection of human life and personal liberty is, I think, becoming increasingly important, for a number of reasons, and I would suggest five in number. First, there is the concentration of power, coupled with the fact that almost every aspect of man's life is now affected by the exercise of that power. Secondly, in my own view there is the speed with which important rights are taken away, sometimes almost overnight. I am not thinking only of what takes place in authoritarian States. Even in our own democratic system in this country it can happen. So far as legislative action is concerned, if the Government and the official Opposition are in agreement, things can happen rapidly. Whatever one's views may be about the Commonwealth Immigrants Act—I am not going to enter into the pros and cons of that measure—I think there are many people who feel uneasy about the almost unseemly haste with which that Bill was pushed through Parliament.
Thirdly, there is the steady growth in the number of administrative acts and the number of administrative tribunals. Very often the decisions of the tribunals cannot be challenged, and sometimes no reasons are given. I am, of course, aware that by Section 12 of the Tribunals and Inquiries Act 1958 reasons must be given if requested, but the parties involved do not always realise their rights in that respect. As to the recent increase in administrative acts I welcome the recent Report of the Law Commission raising, as it does, the question whether citizens should have an enforceable remedy in regard to the legality of administrative actions.
Fourthly, we have growing evidence of the infringement of personal privacy. This has become more serious owing to the nature of modern inventions and the extension of the means of communication. For example, dealing with the subject of the Press and television, I do not think it is fair to blame Press reporters and television cameramen as a generality—there may he exceptions—because after all the public is greatly 1028 interested in the private lives of other people; but as a result of modern inventions the opportunities of delving into the private lives of other people and conveying that information to a very wide public have greatly increased.
I have been reading the Report of the Second Reading debate on the Bill of the noble Lord, Lord Mancroft, and I think the case which he put forward is still valid. Many points made in that debate are still relevant. I notice that in that debate the noble and learned Lord, Lord Denning, speaking about the prevention of the infringement of privacy said:All I would say is that if the law does not give the right of privacy, the sooner this Bill gives it the better."—[OFFICIAL REPORT, 13/3/61, col. 640.]
The fifth ground for concern is the misuse that could be made to-day of personal information obtained about individuals and collated and fed into a computer. This problem has acquired more importance as a consequence of technological advance. I believe that the data bank will be typical of the society of the future. The noble Lord, Lord Ritchie-Calder, if he will allow me to quote him, said in an address to the Human Rights Assembly in Montreal in March of last year, when referring to the future of computerised data:In a fully integrated system everything would be known about you, from your birth certificate to your present overdraft.From my own experience I find that there is a great increase in the number of questionnaires. I do not always reply to them, and it may be that the information I do insert is of no great consequence. But if all the information that was obtained and can now be obtained from individuals were centralised, and perhaps made available to some unauthorised person, an entirely new situation would arise. Circumstances have altered as a result of the development of modern technology, and lawyers must take note of this.
Mr. B. J. A. Hargreaves, the Director of Public Affairs at I.B.M., speaking at the Liberal Summer School last year, put this problem more concisely than I could myself. This is what he said:To-day, modern technology has produced unimagined refinements of the inquisitorial methods used formerly to curtail man's movements and penetrate his mind. What is known as surveillance technology has many subtleties. The bugged olive in the Martini, substances applied secretly to a person's skin or embedded on his person or in his belongings to allow him 1029 to be followed, radio pills that convert someone into a human transmitter, closed circuit television, miniature microphones hidden in a button to record conversations, listening devices that can measure sound waves generated by human speech on walls and windows, infrared devices to read the contents of sealed envelopes, zoom cameras to read documents at a distance and the tapping of communications lines and computer records no longer belong to science fiction. They are available on the market, even through mail order firms, and they have all been used.He continued:The intrusion of the mind is equally refined. Truth drugs, subliminal advertising, polygraphs and personality testing are to-day's stock in trade. The possibility of altering individual characters and intervention in thought processes by direct contact with areas of the brain are two of the developments of tomorrow.I think that raises an alarming prospect for the future, and those are some of the reasons for raising this subject to-day.
I note that last Thursday a journalist, writing about the proceedings of this House, stated that your Lordships—presumably including myself—suffer from the delusion that our proceedings influence people. Well, I am quite content to leave that to others to decide, but I certainly think that this is a subject which it is appropriate for this House to be considering. In doing so, however, we must consider what new legislative action, if any, ought to be taken, and in particular whether, as a number of people now think, a Bill of Rights would provide the right answer. Ten years ago I should probably have been rather sceptical. I should probably have been one of those who said that it was all very well for other countries but not here; and I admit that there are arguments on both sides on this subject of a Bill of Rights.
I find it is a disadvantage to be able to see both sides—perhaps not always. There is the occasion when one is invited to speak at a debating society in support of a motion, and on arrival one finds that, owing to some misunderstanding or last minute change of plans, one has been put down to speak against it instead of for it. Then mental agility has its value. However, this is not a debating society and serious issues are involved, and one is whether there should be enacted a Bill containing statements of legal principles enforceable in the courts. That is the essence of the proposed Bill of Rights.
1030 No doubt there is growing support for this idea. Mr. Quintin Hogg has stated that he has changed his mind and has now come down in favour of the enactment of a Bill of Rights. Mr. Anthony Lester, in a Fabian publication, Democracy and Individual Rights, says:A Bill of Rights could make an important contribution to the protection of individual rights in Britain (including Northern Ireland) against abuse by the Legislature, the Executive and Local Government. It would direct attention more insistently and systematically than at present to issues of principle involving the individual and the State.And more recently a booklet has been published written by a Liberal, Mr. John Macdonald, setting out the arguments for a Bill of Rights and containing a draft Bill for consideration.
Mr. Macdonald, assisted by a panel of distinguished Liberal lawyers, goes rather further than Mr. Anthony Lester, whose approach is rather more cautious. In his introduction, Mr. Macdonald says:If such a document is to have any practical value it must be more than a declaration of good intentions. … A Bill of Rights should confer rights which can be readily enforced in the ordinary Courts.Of course, there will have to be very careful consideration of the definition of these rights. But there are some suggestions that I have met—certainy not put forward by Mr. Macdonald—which I would not take too seriously. For example, according to a report in a journal known as the Alliance News of May this year, a proposal for the enactment of a Bill of Rights was put forward at a conference at Eastbourne of the Greater London Young Conservatives. The proposed fundamental freedoms were to include:Freedom for any adult to partake of any addictive substance, and freedom of sexual expression",whatever that may mean. The noble Lord, Lord Derwent, will no doubt correct me if I am wrong, but I understand that the proposal was defeated.
There are some who seriously object in principle to the concept of a Bill of Rights, and I am well aware of this. There are those who say that we should rely on the development of the common law by the case by case method; by the interpretation of the law by judges following precedents. But I am bound to say that an increasing body of legal opinion has doubts as to whether this 1031 alone is adequate, in view of the new kind of threats and the complexity of modern society. Moreover, on the whole the courts have been rather more successful in the field of preservation of rights of property, and such obvious essential rights as protection from illegal arrest, than in the less easily definable rights of privacy and the right to be protected from intrusion into one's private life. It may be said that we should rely on new legislation to deal with each new problem as it arises, but all too often there is long delay in new legislation. Very often it is left to private Members to introduce a Bill, and I think most of us know that that is a rather hazardous business. Again, there are those who say that it should suffice that Britain has ratified the European Convention and adopted the two optional clauses.
If I may, I should like to turn aside for a moment, because I realise that many of the basic human rights spelled out in the European Convention are derived from principles laid down in the British courts. In a way, that European Convention was a triumph for English law, and it was very fitting that my noble friend Lord McNair, whom I am pleased to see here to-day, was the first President of the European Court. I regret the delay on the part of the British Government in ratifying the Convention but, having said that, I feel I ought to pay tribute to the fact that it was ratified so soon after the noble and learned Lord on the Woolsack became Lord Chancellor. Let us pay credit where credit is due.
But when all has been said that can be said on this subject of the European Convention, I think it is still true that most people in this country would rather have a clear right, which can be heard and dealt with in a British court, and that does not automatically follow from the ratification of a Convention. I know that we are under certain obligations, but the terms of the Convention are not actually incorporated into our law. I should like to make it clear that I am not advocating a written Constitution. If we had a Federal Constitution that would be a different matter, and it might be necessary to have certain entrenched clauses, but that does not arise at the moment.
In March I was in Israel, and I had a long and interesting talk in Jerusalem 1032 with three of the judges of the Supreme Court. Among other things, we discussed the subject of a Bill of Rights, and one of the judges pointed out to me that they had not yet felt in a position to pronounce on whether Parliament was acting constitutionally. I think that that really arises only where there is a written Constitution with entrenched clauses. I am not advocating that, or suggesting in this proposal anything which would affect the sovereignty of Parliament. But there are two points which I think require clarification: one is enforceability and the other is amendment.
So far as enforceability is concerned, I think it would be of value—in fact, it is essential—that a Bill of Rights should create rights enforceable in the courts. It might be helpful if I gave one example of what I have in mind. Clause 2 of the Bill drafted by Mr. Macdonald is headed No Discrimination and subsection (1) says:Every person is entitled to the equal protection of the law.Subsection (2) says:Obligations shall not be imposed and rights shall not be withheld or denied on the basis of race religion sex national or social origin or condition, or adherence or non-adherence to any set of beliefs or principles.
Consider, my Lords, the question of discrimination on grounds of sex. I hesitate to say anything about this in the presence of the noble Baroness, Lady Summerskill, who knows so much more about it than I do, but let us assume that there is some sex discrimination. Presumably, all one can do at present is to campaign against it. But if this Bill of Rights were adopted and it were felt that there was a breach of one of its provisions, then, as I understand it, those adversely affected could appeal to the High Court. They would have to prove their case, but if they were successful they might get an injunction. Of course, if Parliament thought that there ought to be this sex discrimination, it would be for Parliament to pass the necessary measure. But the burden would be upon Parliament to make the exception, and this might make a major difference to the cause of women's rights.
On the subject of amendment of the Bill, I think that the Liberal lawyers' panel was right in coming out against any such provision as a two-thirds 1033 majority to alter the provisions of the Bill. After all, what one Parliament decides to do another Parliament can alter, and I do not think we can bind future Parliaments. But it is important that the public should be aware of what takes place, and there should be some check on hasty legislation. Therefore I suggest that future legislation should be deemed to be subject to the overriding authority of the Bill of Rights, unless new legislation contains a specific statement to the contrary. If it did contain such a statement, then at some stage of the proceedings in Parliament it might be submitted to a Select Committee, so that that Committee could report to the House on the extent of the conflict before the matter proceeded further. I believe that Mr. Quintin Hogg has a somewhat similar proposal. That might check hasty legislation.
I have just one postscript on administrative law. As I said, I welcome the Report of the Law Commission. Perhaps I hedge my bets on this, because if we accepted a Bill of Rights it might not be necessary to do anything more. As an alternative, however, I support the proposal for an inquiry—it is a very complex subject—including the question of whether there should be an administrative court. I hope that that recommendation will be taken seriously. There is much more that I have left unsaid, and I hope that this will be regarded not so much as a sign of ignorance on my part as an act of courtesy to those who are to follow. It is a fascinating subject for constitutional lawyers, but it is also much more than that. I believe that we are discussing a subject which affects everyone, directly or indirectly, and therefore there is all the more need for us to be ever vigilant. My Lords, I beg to move for Papers.
§ 3.10 p.m.
§ LORD DERWENT
My Lords, I think we ought to be particularly grateful to the noble Lord, Lord Wade, for initiating this debate; and I say that for this reason. There have been periods throughout our history, epochs in our history, when it has appeared that the Government of the day—I am not now referring to the present Government, but to a series of Governments of the day—were perhaps taking too much power unto themselves and, in any case, were taking away too frequently 1034 freedoms and liberties of the ordinary citizen which had had to be fought for over the centuries. I shall suggest to your Lordships during my remarks that such an epoch is now with us. Therefore this subject which the noble Lord, Lord Wade, has raised is a matter which we ought all to think about very seriously.
Since the last war we have all suffered from many restrictions which were not thought of before the last war and which would have been quite inconceivable before the 1914 war. I am not saying that these restrictions on our freedoms and liberties are necessarily wrong, or necessarily all wrong, but they exist. May I just give your Lordships one cm two examples? The noble Lord, Lord Wade, mentioned the legislation dealing with immigrants. I think that much more appropriate to this debate is the legislation dealing with race relations. I am not saying that these laws are not doing good. They may even be necessary—though I must say I have long doubted whether legislation was the right way: to deal with the problem. But whether these laws are good or not, the fact re rains that they have taken away a large number of the rights and freedoms of the native born British citizen. Perhaps it cannot be helped; on balance, it may be right to do that. But the fact remains fiat a great many of our rights have been taken away.
Take education, my Lords. Again, I am not saying that the way education is moving is wrong, but we have signed a good many international conventions of various kinds laying down that the parents' choice of the type of education for their children is the important thing. What we are doing may be right or it may be wrong, but day by day we are in fact whittling away the parents' choice. All your Lordships know (and in this case it is probably right) that there are an enormous number of officials who now have the right of entry into private premises without a warrant or without a "by your leave"—such people as factory inspectors or health inspectors. That may be entirely right, but I was somewhat shocked to discover the number of officials who now have this right. There are over 10,000 of them. This is a matter which should he looked at, particularly when considering all future legislation.
1035 We are always hearing nowadays (perhaps it points the moral) about the Executive having too much power. When I question people who say this, to find out exactly what they mean by "the Executive", I find that they sometimes mean the Government, they sometimes mean civil servants, and they sometimes mean local government officers. The people are not liking it. Again, it may be that this power is necessary in most cases. But I query whether it is necessary in all cases, or whether enough attention is being given to it.
I do not wish to make a Party political speech—and I am not doing so. But of course, the position has got worse under the present Government—quite naturally, because, my Lords, decent Socialism, if it is anything, is paternalistic. But when we grow up many of us do not think that our parents know best. We do not always think that the judgment of our parents is right; and the time may well be coming when the people of this country should say to all Governments, "On many matters our judgment is better than yours"—and that, too, is what we are discussing this afternoon. Then there is the great freedom which my noble friend Lord Sandford talked about in your Lordships' House a week ago to-day—the most important, I think, of all freedoms, and it is perhaps being whittled away quicker than any other freedom. I mean the freedom of choice. It is what people want, and increasingly they are being denied it, by successive Governments.
As I said at the beginning, there have been epochs when we have had to fight for our freedoms because they were being whittled away. Traditionally, the two great protectors of the ordinary citizen have been Parliament, principally the House of Commons, and the Law Courts. That is so traditionally. Historically, I would suggest, it is not so at all. Let us go back to what I think in this connection is probably modern government, though it is going a long way back. Let us go back to the Tudors.
Parliament at that time was not really interested in the ordinary citizen. It was interested almost entirely, in so far as it was effective, in withholding or providing finance. It was not very interested at that time in much else, and certainly not in individual freedom. The courts at 1036 that time were under tremendous Royal pressure; in fact, certain of the courts were there almost to give decisions for the Monarch. At that time the principal supporter of the ordinary citizen, strange to say, was the Monarch himself. He needed the support of the people in general against those of his subjects who were already too powerful; and so it was the Monarch who during that period gave what freedoms there were to the ordinary man; and he did it largely through his assize courts. So it could not truthfully be said that at that period Parliament and the courts were the real protectors of the ordinary people.
Then came the Stuarts. Parliament's conscience began to wake up at about this time. At the time of the early Stuarts they were not interested only in finance. Then Parliament was working under considerable difficulties, of course, because it was not allowed to sit very often, and it could not function to protect the ordinary person unless it was sitting. The courts themselves were under tremendous Royal pressure at that period, and, with the notable exception of one or two very great judges, the courts were apt to find in favour of the King. That was at the time of the early Stuarts.
Then we had Cromwell. He had no use for Parliament at all; and the courts, of course, had to carry out the orders of the Government, because he made the orders; he passed the legislation, virtually. So the courts could not be blamed if the ordinary citizen did not get much protection, because Cromwell and his colonels were not greatly interested in freedom; they were interested in getting their orders obeyed. So at that period Parliament was not really helping very much. But after the Restoration things slowly and gradually began to improve—slowly at first, and then steadily on through the eighteenth century. In the nineteenth century the House of Commons and the courts became the real protectors of the individual, particularly after the Reform Bill. My Lords, things went on improving, so that by the end of last century and the beginning of this one Parliament was concerned, seriously concerned, and individual Members were seriously concerned, about freedom and liberties. The courts, of course, by that time were completely independent; so all should have been well to-day. But, my Lords, is it? We have had two great 1037 wars, and during those wars, quite naturally, the ordinary freedoms and liberties had to go by the board. There was no other answer if the nation was to be rescued. That was the start of the great growth in bureaucracy.
What is happening now? Who is looking after the liberties and freedoms of the individual? Is it the House of Commons? I would suggest that there are two reasons why the House of Commons is not doing its duty in this respect. First, the Party system has become so strong and the Whips so powerful that it is difficult for the individual Members to go the whole hog against their own Executive. Secondly, the weakening of the House of Commons in this respect and the growth of the power of the Executive have come about through the payment of Members. Of course, I approve of this; I am all for Members being paid; but that is one of the things that has affected the matter very seriously. During the twenty years that I have been in this House I have noticed the very great number of occasions on which, when the freedom of citizens was concerned, this House has been more interested than has the other place. Perhaps that is because these things go in cycles. I would suggest that at the present time the House of Commons is almost unable to do its job in this respect owing to the system that has grown up. If there were no others, that would be a reason for our discussing this subject to-day.
I should like to say a few words about the courts. Of course, the courts are now completely independent. They protect us—but only so far as they are allowed to do so: because if Parliament passes laws which take away freedoms the courts can do nothing about it they have to see that the law is carried out. At all events, we have nowadays courts that do their utmost within the law to protect the private citizen.
We come now to the question of the Bill of Rights. I thought that the noble Lord, Lord Wade, was very half-hearted on that subject. I think that like me he must have been reading the Liberal Bill of Rights as propounded by Mr. Macdonald—
§ LORD DERWENT
My Lords, I still think" half-hearted ", for reasons that I will give in a moment. The noble Lord has evidently been reading Mr. Macdonald's draft Bill of Rights. Having read it, and being in favour of a Bill of Rights, I then came down rather against it because I do not think that such a Bill of Rights would work. But the people who are opposed to a new Bill of Rights base their opposition on two grounds—and the noble Lord, Lord Wade, touched on this. They say, first, that it is virtually impossible to draft one that would work; and, secondly, that it would take away the powers of one Parliament to alter the legislation passed by a previous one. Both these arguments, if I may say so with respect to all who have put them forward, are in my view a nonsense.
May we take some examples of Bills of Rights?—though they are not always so called, for circumstances differ. But let us take the United States. They have a written Constitution; we all know that. Any citizen can go to the courts and say that some act of the Executive is against the Constitution. If his view is upheld by the courts the action of the Executive is null and void. The Constitution can be altered. It is a cumbersome job; but it can be altered and has been altered. So it is no use saying that it is impossible to draft a Bill of Rights that will be effective. Canada has just done it. Indeed, we ourselves have done it—that is, we have done it with entrenched clauses in new Constitutions for newly independent counties at their request. They are perfectly easy to draft.
When it comes to the point about taking away the power of one Parliament to alter the legislation of its predecessor, that, too, I think is nonsense. Let me suggest without going into detail, how a Bill of Rights should be drafted. It would have to be drafted in general terms, on general principles, with entrenched clauses and so on. I am not going into details, but one general principle might be in connection with, say, computers—a subject which was touched upon by the noble Lord, Lord Wade. I am thinking of the dangers of computers. The general principle in such a Bill of Rights might be that every Government would see that any information collected 1039 for a particular purpose was used for that purpose and for no other. That is the sort of thing that would appear. If Parliament, without realising what it was doing, passed legislation any part of which (although it did not appear so at first sight) proved to conflict with the Bill of Rights, any citizen would be able to take the matter to the courts. If they held that a part of that legislation was against the Bill of Rights, then the Executive would have to back down. That would not stop any Parliament from altering previous legislation; it would merely mean that Parliaments would have to keep to certain broad rules. I do not see much difficulty about that.
As regards altering the entrenched clauses of a Bill of Rights, special arrangements would have to be made. There are various ways of doing it. I would suggest that it would be possible for alterations to be made simply in times of grave national emergency; but in the ordinary way alteration should be possible only by, say, a majority of two-thirds of each House of Parliament. The important thing is that they could not be altered by a simple majority of the Government of the day. That is the sort of way in which a Bill of Rights would work.
My Lords, I am not going to say more about this subject except that it is a very big one and, I believe, at this particular moment in our history, a very important one. Whatever our views, it is a subject which ought to be thought about: because, as the noble Lord, Lord Wade, said, day by day, it may be merely from oversight, we are having our rights, privileges and freedoms whittled away. We ought to think about this, to seize any system by which we can stop a strong Executive—or, perhaps even more likely, a weak Executive—whittling away these freedoms. For that reason I sincerely welcome this debate.
§ 3.28 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I am indebted to the noble Lord, Lord Wade, for introducing this Motion this afternoon. I am not saying that because it is a customary thing to say, but as an old civil rights man and believing this to be a very important subject. After all, there are few subjects which could be more important 1040 than the liberties of the individual. We all know what it is that requires eternal vigilance. I must start by taking up the challenge of the noble Lord, Lord Derwent, who said that things got worse under the present Government. That, of course, is a very "old one". I do not wish to stir up any Party controversy unnecessarily; but right back to the period after the First World War, which is as long as I can remember, it has always been standard Conservative Party propaganda that the Labour Party is a Party which believes in nationalisation and in running exerything from the centre in a maze of rules and regulations, regulating everybody's life from the cradle to the grave; whereas the Conservative Party is the Party which believes in freedom, initiative and enterprise.
§ SEVERAL NOBLE LORDS: Hear, hear!
§ THE LORD CHANCELLOR
My Lords, those are indeed emotive words. I do not mind saying at once that when in elections after the Great War I was presented with this alternative, I voted Conservative. Then I saw what happens when you get a Government which be-lives in freedom, initiative and enterprise: 20 years with average unemployment of 1½ million, sometimes rising to 3 million. Then, before we finished those twenty years, being a practical sort of man, I joined the Labour Party.
My Lords, may I interrupt the noble and learned Lord to ask whether by the same token he is going to vote Conservative next time?
§ THE LORD CHANCELLOR
My Lords, I am coming on to the record of this Government and I will tell the noble Lord, Lord Inglewood, what I propose to do next time.
Take another test. I do not know whether the noble Lord, Lord Wade, will agree, but if you look at the bodies which are really concerned with civil liberties, bodies like the National Council for Civil Liberties, the people who are doing all the work are nearly all Liberal and Labour. You do not find the Conservatives doing the work. I pay tribute to the Bow Group, and there are one or two Conservative societies which are concerned with property interests and people being paid sufficient compensation; but I nearly all the work in civil liberties has 1041 been done by people who are Liberal or Labour. It is not, I think, accidental that to-day, when for the first time for a long time (and probably it will be a long time in the future before we have a similar debate) we have the opportunity to discuss civil liberties, the Motion is moved—and all credit to them!—from the Liberal Benches, and we have three Liberal speakers, one Cross-Bencher and six Labour speakers; and only two Conservatives who are sufficiently interested to speak on the subject.
The truth is, my Lords, that the Labour Party has always been desperately concerned for the individual, and believes in more central planning; but because it realises that that may impinge disadvantageously on some individuals it has always felt that there is an onus on any Labour Government to take specific steps to increase the rights of the individual. During the first twenty years that I was at the Bar, if you were run over by a Post Office van you could sue the driver but you had no legal rights against the Post Office at all, because of the legal maxim, "The Crown can do no wrong". If a company entered into a contract with a Government Department, and the Government Department broke the contract and caused the company damage, the company could not issue a writ. There was an antiquated procedure called a Petition of Right and no remedy at all in tort. Before the war successive Conservative Governments talked a lot about doing something about this but it was the post-war Labour Government which, in the Crown Proceedings Act, gave all of our citizens for the first time substantially the same rights, both in contract and tort, against Government Departments as they had against anybody else.
Then, of course, the Labour Party has always recognised that it is no good people having legal rights if they cannot afford to enforce or defend them. Under the Conservatives the only legal aid system was one by which if you had no more than £2 a week— £2 a week, my Lords!—or in exceptional cases £4 a week, and if you had no more than £50 capital, or in exceptional cases £100 capital, you could bring an action for nothing. If you had a penny more, there was no legal aid or assistance of any kind. It was the post-war Labour Government who introduced the Legal Aid and Advice Act which, as foreign lawyers 1042 are always telling me, is much the best legal aid system in the world.
I would contend that, following the example of the post-war Labour Government, this Government have a very good record of taking specific steps to extend the rights of individuals, particularly against the State. May I mention ten things? First, the Parliamentary Commissioner Act. This had no purpose at all except to extend the rights of the individual against the State. The Conservatives had always opposed an Ombudsman and said that we did not need one at all. Well, my Lords, in the field in which the system has worked, in 1967, the first year, 188 cases were investigated and maladministration found in respect of 19. That is, after all, 10 per cent. Last year, in 1968, there were 378 cases and maladministration was found in 38—again 10 per cent. I will not say whether that shows that the number is larger than we thought it would be, or smaller, in relation to the findings of maladministration, but that was clearly worth doing and I shall hope to say a word later as to whether or not the time has now come when we might usefully extend it.
Secondly, I introduced the Tribunals and Inquiries Act 1966. This was for the sole purpose of giving to that admirable body, the Council on Tribunals, an extended jurisdiction over about a hundred different kinds of ministerial inquiry over which they had no jurisdiction before. I know that Members of neither House can find time to read all the annual reports of the different organisations that there are, but I think that anybody who takes the trouble to study the Reports of the Council on Tribunals will see what admirable work that body is doing. As I say, the sole object of that Act was to extend their jurisdiction.
The noble Lord, Lord Wade, said something which I thought was not too complimentary about administrative tribunals, but there is more surveillance, in a sense, of tribunals by the Council than there is by anybody of the courts. Take the industrial tribunals which deal with different kinds of cases, one being redundancy payments claims. Two or three months ago I found that they had done their 10,000th redundancy case. There are 10 of these tribunals sitting every day in London and others at regional centres. I have never had 1043 a single complaint from any employer or employee about any decision in any of those 10,000 cases. The tribunals are very businesslike; they tell you on what day, and at what time, your case will be heard; they are informal and they seem to give universal satisfaction. If they did not, I am sure that we should soon hear about it from the Council on Tribunals.
Your Lordships have caught me two or three days early but I am about to present for approval by Affirmative Resolution (I think they are now before a Committee) four or five extensions to the field of legal aid. They are small, but they are matters in which my advisory committee has recommended that there should be extensions; namely, variation of maintenance orders; Section 2 of the Children Act 1948; adoption proceedings in magistrates' courts; proceedings partly in respect of defamation; maintenance payments under Section 23 of the Ministry of Social Security Act 1966. So here is the third thing in which we are extending facilities open to ordinary citizens so as to ensure that their rights will not fail to be enforced because of lack of means. They are not extensive, but they are little pockets which have been left out of legal aid in the past.
Fourthly, my Lords, the noble Lord, Lord Wade, referred to the European Convention on Human Rights. It was, of course, the Labour Government in 1951 who ratified it (I am not sure that this was not the first country to do so) but not at that time the optional clauses; and it is this Government who have accepted the optional clauses allowing individuals here to take the Government of this country before the European Commission. Now, fifth, one of the best ways of controlling a Government is, of course, by Select Committees who have very wide powers and can probe into the affairs of a particular Government Department in a way, it may be, in which the Department would prefer the Committee not to. This Government have appointed Select Committees on agriculture, education and science, race relations and immigration, the Parliamentary Commission, Scottish affairs, science and technology and overseas aid and development—seven Select Committees in three years. This is a much wider application of Select Com- 1044 mittees than any Government have, I think, made before.
Sixthly, we have passed particular Acts designed to protect particular classes of individuals. The first, and perhaps the most obvious, example is that of the Race Relations Act. Seventh—though the Government cannot take credit for this—during the lifetime of the Government the noble and learned Lords of Appeal have decided not to follow their previous rule of practice by which they consider themselves bound by previous decisions, and one of the consequences of that has been to enable them recently to decide the case of Conway v. Rimmer. The effect of the decision in that case is that where a question has to be decided as to whether it is contrary to the public interest to produce a Government document in the classes of case specified in the decision, instead of, as hitherto, the Minister having the last word, in the future the courts will have the last word.
It is not really true that a Labour Government always want to nationalise and centralise everything. When we come to think of it, the degree to which this Government, taking the view that everything is not best run from Whitehall, have hived off and decentralised, is remarkable. One of the first Acts we passed was the Airports Authority Act, transferring to an Authority the management of airports which had previously been managed by civil servants in a Government Department. There was the Transport Bill, the main basis of which, perhaps, was to devolve a great many decisions and controls which had always been exercised by the Ministry of Transport to the elected representatives of the local authorities. Look at the Post Office Bill, to the principles of which everybody agrees. It is a hiving off from the central Government. A good deal of recent planning legislation has been speeded up, and decisions, other than those of great importance, have been shifted from the central Government to the representatives of the local authorities. In fact, when the noble Lord, Lord Derwent, says that there has been a great concentration of power under this Government, that really is not true. There has been a great deal of hiving off and decentralisation.
§ LORD DERWENT
My Lords, I am sorry to interrupt the noble and learned 1045 Lord, but he is replying to something I never said. What I said was that the interference with the subject had got worse under this Government, as was to he expected, because it is always going on under all Governments.
§ THE LORD CHANCELLOR
My Lords, as I said, with respect, I do not think that that is really so. I cannot say, of course, what the Commission on the Constitution are likely to report, but it may well be that their recommendations will also lead to a greater measure of local self-government.
Another thing which this Government have done is to disclose and distribute Government information to an extent which has never been done before. The recent Financial Statement and Budget Report contained a great deal more economic and financial information than did previous Budgets. We have started publishing Green Papers, saying what the facts are in relation to some subject, what we have in mind and inviting comments. There was the Green Paper on Public Expenditure—A New Presentation and the Green Paper, The Task Ahead.
There are Members of your Lordships' House who know more about the Defence Reviews than I do, but I am under the firm impression that our Defence Reviews have given a great deal more information than the Ministry of Defence have ever given under previous Governments. There is a wealth of economic and financial information put out in other publications, such as Objectives of the Nationalised Industries, Fuel Policy, The Scottish Economy, Wales—The Way Ahead, and in forecasts and statistical information, papers on technology, exhibitions, films and open days. That applies to education, agriculture and other fields. So I would contend that this Government, following the example set by its post-war predecessor, has been in the forefront in taking active steps to increase the rights of the individual. That does not mean at all that the door is closed to any further steps which ought to be taken.
I certainly do not want to be destructive and would rather be constructive, but I must say that I cannot agree that a Bill of Rights is the right way to do this. I have read most of those documents. I would agree that the Universal Declara- 1046 tion of Human Rights, as a goal to which we should all be aiming, is a great document, but we cannot simply turn it into an Act of Parliament. I have read Lord Reading's Rights of the Subject Bill of 1947, Lord Samuel's Liberties of the Subject Bill of 1950, Lord Mancroft's Right of Privacy Bill of 1961 and what I believe was the Bill which Lord Lambton sought leave to introduce on April 23 of this year in another place. I have read the Conservatives' New Charter, Mr. Anthony Lester's pamphlet, referred to by the noble Lord, Lord Wade, the one produced by the Society for Individual Freedom and the one in Mr. Macdonald's book, to which the noble Lord also referred. The difficulty I always find about a Bill of Rights is that either it contains something which is already law, in which case all we have is two laws in different language dealing with the same thing, which is not exactly a help, or it is in such general terms that it is impossible to say what effect it would have.
May I take the one from the Liberal stable. Mr. MacDonald says in his Clause 2:Every person is entitled to the equal protection of the law. Obligations shall not be imposed and rights shall not be withheld or denied on the basis of race, religion, sex, national or social origin or condition, or adherence or non-adherence to any set of beliefs or principles.When one tries to think what this would mean in practice, it becomes difficult, though as a matter of fact we are very much helped by the explanatory paragraph in the booklet, which says:The scope of this clause is considerable. It ranges from the question of equal pay for men and women to the disestablishment of the Church of England and from property qualifications for jury service to the right of a Roman Catholic to be Lord Chancellor.Would one ever have thought, when one read Clause 2, that that was what it was all about?
It is all in these general terms. The clause on "Rights of Privacy" says:Every person is entitled to protection from arbitrary interference in his personal, family or other private affairs.Just think of the difficulty of any court in saying what was "arbitrary interference". The clause on the "Right to Leisure" says:No person shall be required, as a condition of employment or continued employment or otherwise, to work excessive hours or to do without reasonable rest and leisure time.1047 Think of the judge's difficulty in saying what "excessive hours" are for every individual. The document goes on all through like that. Under "The Right to a Just Reward for Work" it says:Every contract of employment shall entitle the employee to a just reward for his labour.How do we apply a thing like that? I do not think that this is the way forward.
But there are five fields which I think might well merit consideration, and I should he interested to hear what any noble Lord has to say in these five fields. Of course, I am not stating any Government decision at all, because there is not any, but it may be that these are fields to which we ought to be giving thought. First of all, is there, or is there not, a case for extending now the area of operation of the Parliamentary Commissioner? Your Lordships may remember that at the time of his appointment I said that I thought it would be a great mistake to try to start him with too much to do, because there had never been an Ombudsman in any country that had a population of more than 6 million, and much depended on the confidence of the public in the individual. We were starting with a population of 50 million. I remember saying that if he commenced within a reasonably small area, to make sure he was not flooded out to start with, we could always extend it later. There are the National Health Service and the nationalised industries. Not everybody, I think, is too happy about complaints against the police. The 1964 Police Act substantially embodied the recommendations in this field of the Royal Commission of 1962, and I am not suggesting that the Police Force would necessarily be suitable for the Parliamentary Commissioner, though that has been suggested. There are the local authorities—this is perhaps one field for the extension of the activities of the Parliamentary Commissioner we ought to bear in mind.
There is also the legal aid scheme, which is working extremely well, except in three or four respects. The recent report from my Advisory Committee recommended, first of all, that it should be extended to the five cases to which I have already referred, and that I am doing; then that we should try having a lawyer employed with citizens' advice 1048 bureau; and that is being done. Then there are three steps which at the moment our economic condition has not allowed me to implement. One is the raising of the financial limits and allowances for legal advice, which would cost £236,000 a year. The next is raising the free legal aid limit, which has not been raised for about six years and which would cost £170,000. Then I asked the Committee: "Do you think that legal aid ought to apply to any legal tribunals; and, if so, which and in what order?" They have said that legal aid ought to be applied to the Lands Tribunal, and that would cost about £100,000 a year. Legal advice is in a much less satisfactory state. We have had recently suggestions from Conservative and Labour bodies and from the Law Society, and all those proposals in the field of legal advice are now being studied by the Advisory Committee.
Fourthly, there is the recent Report from the Law Commission on administrative law. This I regard as a subject of great importance. They recommend that there should he a Royal Commission, or a body of a similar status, to carry out a comprehensive review of the principles and procedures of administrative law. They recommend that the terms of reference of the body to be appointed should be wide enough to allow inquiry into every aspect of this part of the law where reform may be necessary; that the body itself should be broadly based, and should not be the Law Commission itself, nor indeed any body consisting only of lawyers. That Report has only just been published, and the Government have not yet had an opportunity of considering which course they should take. But the subject is an important one, and I should like to hear any views that noble Lords may have upon that Report.
Lastly, I come to the law of privacy. This is a very delicate and difficult subject. I quote one report.Professor Roy Calne",it says,pioneer in liver transplant surgery in Britain, to-day accused a section of the British Press of causing the deaths of patients awaiting transplant operations.The difficulty of the subject, in the main, is that it requires one to draw a line between the rights of the individual in a free society and the rights of the Press, television and radio in a free society. I 1049 do not suppose that anybody doubts that the notice paid by the Press to the whole question of heart transplants was absolutely right. This is obviously a very difficult field. It is one in which the public must know the facts, and in which the Press have been of great help in seeing that the facts were brought out. But whether they were right in insisting on publishing the names and addresses of the relatives of the donors is, of course, an entirely different question.
Forty years ago a woman was convicted when young of soliciting. For the last 35 years she has been a happily married woman, and her children, of course, are mostly grown up. Ought a newspaper which finds out about this conviction to be able now to publish the thing to the whole world? The position to-day is that it can, and those responsible say: "It is our sacred right to get hold of any bit of dirt we like and publish it to the world." Is that right? Or ought there to be an area within which somebody who is not in public life can say: "This is my private concern, and is not the legitimate concern of the whole public."?
This is, as I say, a difficult question. It is naturally receiving attention everywhere, because all developing nations are in much the same position. Apart from this very delicate balance between the individual and the Press, we now have these telescopic lenses with which they can take a photograph of you in your own home a long way away. It is quite easy to "bug" telephones—"bugs" under the beds (as we have evidence in court nowadays), and a good deal of industrial espionage. I do not know how many of your Lordships may have seen, some two or three months ago, a television programme about this. They had gone to a number of people who advertised as detective agencies. They had asked in the first place: "Can you get a man's police record for us?" About half of them had said: "Yes; there is no difficulty about that."—of course, these agencies are mostly run by ex-police. They were asked: "Doesn't this involve a breach of the Official Secrets Act on the part of the police?" They said: "We are not concerned with that." Then they were asked: "Can you go to a company we will name?"—the people 1050 were acting really for an American company—and told, "What we want is a photograph of the managing director, a record of a telephone call we know he is going to have with New Yolk on Monday, and a copy of a blueprint which we know is in his office." They said: "Yes, £250." They paid the £250. Well, two men arrived saying that they had come from the Post Office to mend the telephone, and everybody as5umed that they had. That enabled them to "bug" the telephone. While somebody was out of the room they found the blueprint and photographed it. Then they came back in the evening and removed the tape recorder from the telephone. It appears that this sort of thing is going on quite a good deal—and, of course, not only here.
In May, 1967, the chief subject of discussion at the annual meeting of the American Law Institute, which is the chief law reporting agency in America, was the law of privacy. By accident, at the same time there was a conference of Nordic lawyers in, I think, Stockholm, where the sole subject of the conference was the law of privacy. I have here the working paper, and it shows what an enormous amount of information there is available in this field as to the laws of different countries, if they have one, and how it works. I heard—though I have been unable to verify to-day whether it is true—that Sweden had appointed a Royal Commission. I have inquired from the Swedish Embassy, and they are not clear whether that is so, and, if it is so, whether they had been able to report.
The Law Commission considered at one time whether they should put this subject into their programme, and they had a weekend conference at All Souls to enable them to decide whether it was a suitable subject for them or not. I found it of great interest, because, apart from the Law Commissioners, there were present the Chairman of the Scottish Law Commission; Professor Smith; Lord Devlin, Chairman of the Press Council; Mr. Justice MacKenna; one of two barristers and solicitors; Lord Goodman; Professor Street; Professor Heuston; Mr. Cecil King; Mr. John Bevan, political editor at the Daily Mirror; Lord Francis-Williams; Mr. Paul Johnson, Editor of 1051 the New Statesman; Mr. Robin Day; Mr. James Yeo, Western representative of the Daily Mail; Mr. Alexander Lyon, whose Right of Privacy Bill we remember being introduced in another place; Mr. Samuel Silkin, Chairman of the Legal Committee of the Council of Europe Consultative Assembly; Dame Joan Vickers; Mr. Smith, the Managing Director of Management Selection, Ltd.; Professor Goodhart and Mr. Isaacs, the technical and documentary producer of Rediffusion.
The sort of thing we were discussing was this. A television company (whether it was B.B.C. or Independent Television I forget) had gone to a number of houses where they knew that a salesman from a particular washing machine company was going to call and "bugged" what happened on the doorstep. The salesman did not know that the call was being "bugged". The justification for this, they said, was that the saleman's methods were not right, and they wanted to expose them. But suppose they had been wrong, and there had not been anything to expose. The company was not there; they had no opportunity of saying anything. When we asked, "Who is it who ought to have the right to decide that somebody else can be 'bugged' without his knowledge?", they said, "Oh, we". We replied, "Might it not be that it ought to be a jury?" So in all this very difficult field I am not suggesting for a moment that it is an easy subject. I am quite sure that it is one that requires considerable consideration.
The other reason given by the noble Lord, Lord Wade, was that if you have an Inland Revenue number, if a person has a National Health Service number and a motor car registration number, would it not be better if everything had the same number? You can see how convenient it would be if you were injured in an accident, and became unconscious. Your entire health record can be obtained at once or in a few seconds from the computer for the benefit of the doctor. But if everything about you—I do not know about your bank account, but perhaps your creditworthiness—is to be on computer, who is to be entitled to see what is there? I hope that nobody will suggest I am saying that the Labour Government would want to put 1052 everybody on computer records—of course I am not saying that. I am only agreeing with the noble Lord, Lord Wade, and pointing out that this is undoubtedly something to which in the future consideration will have to be given.
My Lords, I have taken a little longer than I intended. May I just summarise what I have said by saying that this Government, like their predecessor Labour Government, have a very good record in this field. They have done nothing of which they should be ashamed. We are as a Party, and always have been, deeply concerned for personal liberties, and while I do not think a Bill of Rights is the right way forward, I have ventured to suggest five fields on each of which I should be very interested to hear what the views of noble Lords are.
§ 4.2 p.m.
§ BARONESS GAITSKELL
My Lords, I am very grateful to the noble Lord, Lord Wade, for initiating this debate, because when it comes to human rights and freedom it is healthy, and even necessary, to encourage each generation to define and re-define the basic values of our society. Especially in an ever-growing democracy this is particularly necessary. This also goes for the concept of freedom and liberty which is so bandied about by all Parties, and particularly by the Conservative Party, which always seems to have cornered the market in freedom and liberty. The Conservative Party always thinks of freedom for a fewer number of people than the Labour Party, which always considers freedoms and liberties for the greater number of people in our society.
Vigilance should be constant, even if we may not agree with the noble Lord, Lord Wade, that a Bill of Rights is a matter of urgency at this moment—and here I agree with the noble and learned Lord the Lord Chancellor. The time is certainly not wasted when we come to examine our freedoms to see whether or not they are being eroded. This Government, as the noble and learned Lord the Lord Chancellor has pointed out, can be proud of their record in promoting the rights of the citizen.
Here again I must take issue with the noble Lord, Lord Derwent. The noble and learned Lord the Lord Chancellor has already listed a great many fields in which the Labour Government have done 1053 well. I will add just a few more. They have introduced, as he said, the Parliamentary Commissioner to investigate maladministration in central Government—and here I would agree with the Lord Chancellor that the time has come to extend the field of the Commissioner. We have had the Criminal Justice Act to secure greater individual justice. We have had the Rent Act which was passed to prevent the exploitation of tenants. We have had an Act like the Trade Descriptions Act, which protects the consumer. Theatre censorship has been abolished, thus increasing the freedom of expression. The Government are committed to achieving equal pay for men and women, although we have not got it at this moment. The promised Industrial Relations Bill, despite all the controversy that it has aroused, is legislation designed to guarantee the basic rights for the workers.
It is also to the Government's credit that they have ratified the protocol of the European Human Rights Convention which allows individual petitions against the British Government for alleged breaches of the Convention. Not the least of the Government's efforts in furthering human rights is the setting up of the Race Relations Board—and here again I take issue with the noble Lord, Lord Derwent, when he says that this is a diminution of individual rights and freedoms. Altogether, it is a very good record, but some people feel—and Lord Wade is obviously one of them—that permanent machinery is necessary which will safeguard these advances against the possible abuse of State power by future Governments. A Bill of Rights is, of course, one way of achieving this. It can perform a useful function in focusing attention, as I believe the noble Lord has said, on the basic values of our society.
Personally, although I have sympathy with the noble Lord, Lord Wade, my experience at the United Nations does not make me feel that a Bill of Rights by itself is any substitute for the spirit of liberty. There are many countries with splendid written Constitutions; witness the Constitution of the Soviet Union, also the Constitutions of many Afro-Asian and South American countries. From them we know that not everything that is enshrined in a written Constitution becomes the law and custom of a country. Where 1054 there is no free Press and a healthy Parliament, public opinion cannot find expression, and the spirit of liberty is ailing or dead.
I was in dreadful trouble at the U.N. on one occasion when we were discussing the Convenants. Hoping to flatter the delegate of the Soviet Union, I quoted a small part of the Soviet Constitution. But I followed it with a very unguarded remark. I added, "Not everything that is enshrined in the Constitution becomes the law and the custom of the land". I have never been subjected to such a strong attack from any delegate in the Human Rights Committee. Perhaps he got the message—I do not know.
I never understand why we are so slow in ratifying the United Nations' Covenants on economic and social rights, and political and civil rights. We have signed them, but we have not ratified them. Many of the rights and freedoms in them already exist here. Many countries have a Bill of Rights, but not all of them are good. I am told that until about thirty or forty years ago the American Bill of Rights was for whites only, and desegregation could not have come about without a Bill of Rights. That is one argument for having such a Bill. A Bill of Rights is what you make it. It must have all-Party support, and must not prevent Parliament from tackling the fundamental injustices in our society, because it will be just a scrap of paper—or it might even be a Bill of Wrongs.
I turn now to the second part of the Motion of the noble Lord, Lord Wade,the threat to personal privacy resulting from technological advance".In recent debates in this House the sins of technology seemed to have loomed much larger than its blessings. I believe my noble friend Lord Ritchie-Calder will speak on this subject. He is an expert on it, and when again we were discussing this business of privacy in the United Nations I profited greatly from the brilliant lecture he gave in Canada. There is no doubt that in what my noble friend Lord Ritchie-Calder calls "this bioengineering age" we can be overheard, overlooked, in fact televised, without our knowledge or awareness by the most sophisticated minuscule electronic devices. When I read of these devices I feel that the war of the future is going to be 1055 fought against an army of hidden persuaders and invisible eavesdroppers—a nightmare of espionage.
The dangers of satellite propaganda are a definite possibility, and the developing countries are really very frightened of its effects. They are very frightened of the intrusion into privacy, which now acquires, or is going to acquire, a completely new dimension. So, finally, my Lords, what is quite certain is that, with an increasing population and the advancement of technological progress, no one should be complacent about our rights and liberties. The Press, public opinion and Parliament are the rightful guardians of freedom in a democracy.
§ 4.12 p.m.
§ BARONESS SUMMERSKILL
My Lords, I should like to join with other noble Lords in thanking the noble Lord, Lord Wade, for presenting a document which enables us to discuss matters of considerable importance to individuals of all kinds. He turned to me and suggested rather broadly that I might know a little more about sex than he does. That was a rather sweeping assertion, but he then, of course, was referring to Clause 2. If I may say so, I hope that the rather disparaging comment of my noble and learned friend the Lord Chansellor on Clause 2 has not depressed the noble Lord, Lord Wade. I would say that if those parts of Clause 2 which deal with sex discrimination reached the Statute Book, that in itself would justify this Bill. However, as I will explain to the House, many other people in many other ways have tackled this problem, and over the years I have learnt that it is much more difficult to overcome prejudice than to get a Bill on to the Statute Book.
The question of human rights is one which has been raised in the councils of the world ever since man became articulate. It would not be surprising if in some underdeveloped countries there were those who had been denied expression—namely, the women—with the result that their human rights had been overlooked. But Britain is not an underdeveloped country. Its Parliament is called "The Mother of Parliaments"; and women here form half the population and comprise a third of the working force. Most of the married women in 1056 that working force do two jobs. They give the most important service to this country—they produce and rear children. At the same time, they look after the home and look after another worker, their husband.
The injustice which I propose to ventilate to-day is one which I hope this Bill of Rights will try to tackle, but I am a little sceptical, as this subject has been raised again and again in every Parliament but it falls on deaf ears, whatever the political complexion of the Government. I believe that the failure to provide elementary human rights for women in Britain is a blot on our record of social advance. It cannot be said that this is due to ignorance. World attention—I repeat, world attention—is frequently drawn to the omission of Britain to honour her obligations to her women workers. In 1948 the General Assembly of the United Nations adopted the Universal Declaration of Human Rights, which proclaimed in Article 2:Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind such as race, colour, sex, language, religion.Article 23(2) states:Everyone, without any discrimination, has the right to equal pay for equal work.The same principles were enunciated fifty years ago in the Constitution of the I.L.O. Equal pay was embodied in Convention 100, which was adopted in 1951 and ratified by 64 States but not ratified by the United Kingdom. The excuses for not ratifying are wearing thin, for the requirements of Convention 100 are very simple. They are simple, flexible and hardly more than minimal. The Government are not required to enforce equal pay by legislation, since the Convention allows for the principle to be applied by means of the recognised machinery for wage determination and collective agreements between employers and employees. Many countries with an employment structure no less complex than our own have ratified the Convention. Among them are Belgium, Denmark, France, the Federal Republic of Germany, India, Israel, Italy, Japan, Norway and Sweden. If they have been able to ratify it, why does this country, with a Labour Government, find it impossible to do so?
Then, again, there is discrimination against women workers by a failure to provide access to jobs and facilities for 1057 training and opportunities for promotion. This, my Lords, surely is an elementary human right. This failure was condemned by Convention 111, which also Britain has failed to ratify. Let me interpret this in a concrete way which everybody will understand. To-day our country is desperately short of doctors. Yet we still ignore the recommendation of the Economic and Social Council of the United Nations to grant women equal educational rights with men. Every teaching hospital in London discriminates against women by allowing only a small percentage of able girls to enter, while we encourage doctors to leave the Commonwealth where the medical need for doctors is far greater than our own. Every now and then these women become resentful and down their tools for a very short period. In the case of our nurses, we have seen something in the last few months which is most unusual in this country. Part of the medical profession, the nurses, have made a protest in the streets. Surely, adequate pay for a dedicated woman like a nurse, who does day and night work, is a human right. But, rather than pay our nurses adequately, we encourage nurses to leave underdeveloped countries and their own sick people, to nurse ours.
And what of the human rights of women in industry? In industry prejudice alone denies intelligent girls apprenticeships and they are wasted in routine jobs on the factory floor. If one goes to a big, congested, industrial town in our country and examines the number who have apprenticeships there one might find three girls among them, and two of their apprenticeships are in hairdressing. My Lords, prejudice is merciless because it is all-pervading. Employers, trade unionists, professional men and the clergy all join in a silent conspiracy to maintain the status quo. Of course, the most admirable sentiments are expressed on all sides in regard to colour and racial discrimination, but there is a significant failure to denounce sex discrimination.
Last Wednesday we had a debate. The word that was on everybody's lips was "cynicism". Why are we surprised? And to-day I see in the paper that the Labour Party feels that the time has come when they must whip up the enthusiasm of the women workers in the country. It must be obvious why the 1058 women workers are cynical. That is a mild description of the attitude of the woman industrial worker towards the pillars of the establishment who permit her gross exploitation. I want to remind noble Lords that this woman, denied equal pay for her work, is subsidising her employer every hour of her working life—and now she knows it. It teems to me that the Government are treading on very dangerous ground if they insist on the penal clauses in the Industrial Relations Bill. I have said before that women workers denied the rate for the job have had a cooling off period for nearly a hundred years. Now their tempers are rising, and if they decide on an unofficial strike against long-standing exploitation no Government would dare to inflict any form of punishment on them. To do so would be a gross betrayal of human rights. The Government should have the common sense to remove grave injustice before they even contemplate penal sanctions.
Again, the position of the working woman with family responsibilities has equally failed to receive adequate attention. The United Nations Commission on the Status of Women recognised that solutions to the problems of these women are essential to the full participation of women in the life of the community. Furthermore, it stated that the family responsibilities of women are often used unfairly to justify cases of discrimination against women. I turn now to the I.L.O., which has been sitting for fifty years and has discussed these matters ad nauseam. The I.L.O. recommends that provision should be made to facilitate the entry or re-entry into employment of women who have been out of the labour force because of family responsibilities, and the General Assembly of the United Nations in 1967 adopted the Declaration on the Elimination of Discrimination against Women. I understand that a fresh excuse has now been found for not paying women in industry the rate for the job; namely, that women do not do night work in industry.
Last week there was published a little pamphlet by Political and Economic Planning entitled Women at Work, and it was written by Pauline Pinder. She states that:The T.U.C. dislikes what it calls the hausfrau attitude; that women should be given 1059 particular privileges, both economic and social, just by virtue of the fact that they bear children.As bearing children is the most important national service, we must ask these gentlemen to try to take over this work. This excuse that because women provide the babies of the country they should not be given any special consideration is hardly believable in 1969, and it cannot be reconciled with the decision of the I.L.O. that women be enabled in every way possible to fulfil their responsibilities at home and at work harmoniously.
Finally, my Lords, I have one other thing to say—and I know that some of you here must be utterly tired of hearing me ask for justice for women. I have come to the conclusion that although pious platitudes about human rights are uttered by people in high places, in the main they seem to be concerned only with the rights of male humans.
§ 4.25 p.m.
TILE EARL OF ARRAN
My Lords, I shall deal with only one aspect of this Motion, that of intrusion into privacy by the Press. I had frankly expected a full-scale blast against the newspapers this afternoon, and I am glad to see that it has not so far come, although the noble and learned Lord the Lord Chancellor had some stern things to say about the publicity given to individuals involved in transplants. I do not suggest that this applies in this case, but with respect may I remind the noble and learned Lord that a lot of personal publicity is often self-sought. Nevertheless, in spite of this lack of a general onslaught I believe that the case for the Press needs to be made, if only briefly and in general terms.
Your Lordships may remember—indeed it has been mentioned—that in 1961 the noble Lord, Lord Mancroft (a Conservative, incidentally), introduced a Bill calling for protection against intrusion into privacy by the Press. On that occasion I did my best to defend the newspapers, though in fact I had no right to do so, representing as I do no one but myself, and never having actually been a reporter. But as your Lordships may remember, largely due to the brilliant speech of the noble Lord—and this is a fact and no compliment; he is perhaps the most brilliant speaker in the country, 1060 inside or outside this House—and as a result of the examples which he cited of intrusion in past years, he got his Second Reading by 74 votes to 21. Admittedly some of the cases of intrusion which he mentioned had occurred some years previously, and I do not think he was quite fair about the gradual change of heart (if I may use that phrase) in the Press in the years before he made his speech.
Since that debate—and I say this firmly and clearly—there has been a further improvement and an increasing consciousness among newspapers of what is or is not acceptable. This, of course, is largely due to the increased respect in which the Press Council is held by editors; to the work of the National Council for the Training of Journalists, and to an increasing awareness among editors as to the strength of public and Parliamentary opinion.
After this ex cathedra statement, I must put forward as straightforward evidence statements in the annual reports of the Press Council itself. We must remember that although the Press Council still has no teeth, it is held in greater respect than it used to be, which is of course largely due to the much respected noble and learned Lord, Lord Devlin, who acted as Chairman. As the Press Council said:Complaints to the Press Council under the heading of intrusion into privacy do not amount to as much as 1 per cent. of the total received".On one particular case, which involved a libel action by the late Mr. Randolph Churchill and others against the Daily Sketch over an interview with Mrs. Camila Fry, the Press Council Report of 1968 said this:The standards of 1964…would appear no longer to apply and it seems very unlikely that this kind of interview would now take place.I agree. The late Mr. Arthur Christiansen, the very celebrated Editor of the Daily Express for many years, said some 10 or 12 years ago:The foot in the door technique is no longer tolerable in Fleet Street".In fact I think he spoke prematurely, but the trend was already there, and that trend, I believe, has become now a near fact.
That does not mean, of course, that newspapers do not sometimes slip up in 1061 matters of taste. Though this is not a case of intrusion into privacy, speaking purely personally I deplored the immense news coverage given to what is known as the Celentano case, an enticement case which found so much publicity in last weeks' Press, to the infinite boredom, I should have thought, of almost all the readers concerned. I have always said news editors have no news sense, and that they lack the power even to distinguish between the important and the trivial. Moreover, they are tremendous copy-cats. Just because one daily paper has a story, an exclusive, the other papers have to pick it up in their later editions in case they have missed something. That is the reason, for your Lordships' information, that you tend sometimes to get rung up at midnight or later. It is no excuse, but that is the reason why. And of course the gossip columns still offend, though nowhere in the same degree to which they used to; 15 years ago they were a crying scandal.
My Lords, lest you should think me over-smug in this, I do not in saying these things believe that newspapermen have become angels overnight. If there is a change, and I have mentioned several reasons why there has been change, it is basically due to public taste, and this in the last resort is due to the improved education of readers and writers alike. I have said before in your Lordships' House that the country gets the Press as well as the Government it deserves. Well, I think we deserve the Press we have now got, and on the whole I find it a pretty decent Press. I know that a remark like this is liable to promote a growl from your Lordships, and it may be that noble Lords have personal complaints about the way the Press has behaved recently. But I believe it to be none the less true; and while I have always been proud to work for the newspapers I am more proud to-day than ever before. The only thing which makes me sometimes doubt whether we are heading in the right direction is my own weekly column, which on re-reading from time to time seems a little extravagant.
Seriously, I am glad that we have not so far to-day had the onslaught which we had from the noble Lord, Lord Man-croft, in 1961. I am glad, too, that my friends at least do not complain to me of odious newspaper practices affecting 1062 them personally. I say once again that the change is due not to the newspapers themselves so much as to the public who read them and who are ultimately responsible for what appears in them. For all that is said to the contrary, I personally believe that we are living in a more civilised and a less ruthless society, and although the noble Lord, Lord Wade, and others have pointed out very forcefully that our freedom may be endangered from other sources, I do not believe that the newspapers of Britain are contributing to this danger to freedom, rather indeed that they are the upholders of it.
§ 4.35 p.m.
§ LORD RITCHIE-CALDER
My Lords, I want to thank, as we all must, the noble Lord, Lord Wade, for introducing this Motion. I want to thank him also for his reference to myself, because it has given me the cue for what I am going to say. I thank, too, my noble friend Lady Gaitskell for her remarks, and I am in fact going to devote myself to the aspects which they both mentioned.
Any discussion of human rights in 1969 must take serious account of a new threat of tyranny, the tyranny of the machine. This is not a fantasy nightmare of clanking robots striding into your Lordships' House and croaking, "Take me to your leader". This is something much more insidious. We are so fascinated by gadgets that we are becoming hypnotised by them into docile surrender of some of our most valuable human rights. And by "hypnotism" I do not mean just compulsive televiewing, the induced inertia which keeps one from turning the confounded thing off: I mean our childlike delight in novelty without realising that while, item by item, technological innovations are harmless and useful, their combined effect may be the destruction of some of our most cherished values. All the components of George Orwell's 1984 are already here; they are only waiting for Big Brother to assemble them; and in many places this has already happened. Acquiescence in innovation is dangerous because it makes us uncritical and prepared to condone the most outrageous invasions of personal and cultural privacy.
Let us see what kind of things are happening. During the war I was Director 1063 of Plans of Political Warfare in Britain and knew a great deal about the ingenuity which went into our efforts to pry into enemy affairs and to influence the enemy's mind. Sometimes I was at the receiving end of the enemy's techniques. For instance, on missions abroad I was the object of persistent attention from enemy agents, and in that bazaar and mart of war-time intelligence, Lisbon, I found my hotel room "bugged ", as we would say to-day. It was a pretty clumsy affair; the microphone was concealed in a flowerpot, with wires connecting it to a listening post. I may say that I did not remove it; I just ensured that the eavesdropper would get the information I wanted him to get—and very misleading information it was.
To-day, with miniaturisation and solid circuits, things have gone very much further. The noble and learned Lord the Lord Chancellor has mentioned the kind of things we are now capable of being overtaken by. With tiny match-head transistor transmitters, no wires, the eavesdropping set can be concealed in a cocktail olive (somebody asked me what happens when you swallow the olive) or stuck like chewing gum on the base of a telephone or fitted into the lamp socket of a bedside lamp, or could be as unobstrusive as the button in a car's upholstery. Stethoscope microphones can be stuck by suction on an hotel bedroom wall and pick up a conversation in an adjoining room. I can give your Lordships some good advice in these circumstances: turn up the radio as loud as possible, and then of course your noise will be invading other people's privacy. The other thing, which I mentioned in your Lordships' House recently in connection with the broadcasting debate, is the fact that we now have the means by which we can have receivers in our dentures, or in the stoppings of our natural teeth. Also by the same process you could have transmitters in your mouth.
During the war the famous Danish nuclear physicist, Nils Bohr, was helped to escape from Nazi-occupied Copenhagen. His instructions were conveyed to him in a microdot. This is no larger than a period on a printed page. It was a microphoto—which incidentally was concealed in a key—which could be 1064 enlarged to measurable proportions. We managed to get him out, through Sweden, in the bomb bay of a high-flying Mosquito aircraft, and he joined the Manhattan project which was converting his prodigious work on nuclear physics into the atom bomb. He was so horrified by the prospects of what he saw happening that he insisted that there ought to be international control before the bomb was exploded. Roosevelt was sympathetic, but said that Bohr should go to London and discuss it with Churchill. Bohr arrived in London, heavily burdened by the Allies' greatest secret. Only a handful of people knew about it, and he wondered whom he could consult. He wanted advice about how to go about seeing Churchill. His friend, Sir Henry Dale, the President of the Royal Society, was in the innermost secret. But where could they discuss? They found two metal chairs in the open expanse of Hyde Park where they could be safe from eavesdroppers.
But, my Lords, even the privacy of the wide open space which they were able to secure on those two metal chairs in the middle of Hyde Park cannot be ensured to-day. There are directional microphones like sound telescopes which, from concealment, can pick tip conversations at long range. This is the age of polaroid glass, one-way windows behind which people can sit unseen and watch what is happening in another room—the sophisticated version of the Judas Window. This is the age of the casual camera, photographing people without their knowledge, and of infra-red cameras, photographing in the dark. We have "Peeping Tom" long-range cameras, as the noble and learned Lord has mentioned, which can zoom in on our private lives, just as surveillance planes or observation satellites or U.2s spy on the military installations of other countries.
Lie detectors have become completely commonplace. We tend to think of them just as a useful way of catching out the guilty criminal. But whether we approve of their use by the police—and I, for one, would never accept them for evidence in a court of law—it is difficult to excuse them in human or industrial relationships in which they are now being extensively employed. They are being used in the interviewing of candidates for employment, and I have heard members of 1065 leading companies defend the practice; and of course, if you refuse to submit to the lie detector lie is a presumption that you have something to hide. This is a quite intolerable invasion of privacy because, a long way short of potential dishonesty or of doubtful loyalty to an employer or country, there are whole areas of one's private life, or thoughts, which obviously should never be of any concern to any employer. A perfectly innocent person can have proper hesitation or perplexities if he is being examined by the lie detector. Just a natural hesitation, "Why should he want to know that?", and that hesitation will show up on the polygram as a lie.
We have heard a lot about the "brain washing" of prisoners of war, but there arc similar techniques and subliminal persuasions by which the subconscious of the individual is invaded and his thoughts and his personality are influenced. These influences can be smuggled past the defences of his conscious intelligence. There are methods of which I am aware, including ultra sonic waves. These are inaudible to our conscious range of sound, just as the "silent" dog whistle is inaudible to man. At sonic frequencies just beyond the threshold of normal hearing an insidious and "silent" whisper can get through to the subconscious, like the signal of an unfamiliar radio station impinging on a neighbouring wavelength.
Similarly, subliminal visual messages can be concealed in films or television programmes. Such techniques are banned, in advertising codes, and so on. But anyone sufficiently ingenious, or some central authority seeking to indoctrinate, could certainly succeed in putting over subliminal visual messages. I have seen television commercials in the United States which I strongly suspected of employing subliminal techniques. With what insight I have, and the kind of thing that it could have been, I strongly suspect that they were. But unless one could investigate at the point of preparation it would be difficult to establish such an intrusion because, by definition. "subliminal" means that it is undetectable at the receiving end. One has only to consider the methods properly used in clinical psychiatry to know how these subliminal methods could be unscrupulously adapted to mass-influence; and, if I may say so to your Lordships, 1066 we certainly had such attention during the war.
There is another category of intruders, violators of the identity of the human individual. They are chemical. They are the psycho-chemicals or hallucinogens, the most notorious of which is of course LSD. But I am not here talking about the "hippies", dangerously and stupidly experimenting on themselves; and I am not going to elaborate on the use of hallucinogens in chemical and biological warfare—that is a big and urgent subject which we have at last got on to the agenda of the Disarmament Commission. I am talking about their plausible use by civil authorities or by unauthorised individuals. The hallucinogens are odourless, tasteless and colourless. They can produce a whole range of psychological reactions, from inability to concentrate to trance-like withdrawals. People exposed to them are quite unaware of their abnormal condition but are unable to follow the simplest instructions or to resist the most obvious suggestions. They are called in military circles "off the rocker" gases—a most charming description.
These agents can be dispensed covertly in the air or orally ingested by "spiking" a drink; and they are being promoted as possible agents for dealing with civil disorders, such as for use as police gases. am not talking now about hallucinogens; I am talking about psycho-chemicals. They are urged as harmless, or as just pacifying! Do not believe it, my Lords. Any psychopathologist can tell you that people, through physiology or temperament, react differently to such agents. Many may suffer permanent mental and even genetic damage, so that their offspring can be afflicted. And as we know from the use of tear gas, the dispersal is indiscriminate, and innocent people are involved. That goes for many protestors, for example, in civil misbehaviour: the protestors are innocent of anything except protesting; but they can suffer. I hope, therefore, that whenever this issue arises, we shall adamantly reject such gases for police duty.
I am not now talking just about their use in civil disorders; I mean use by police as a means of extracting information or reducing someone to complacency. These hallucinogens can be used against us without our knowledge. I heard a distinguished expert recently in America 1067 seriously discussing a James Bond situation in which these gases could be introduced into the air-conditioning system at an international conference so that the delegates could be persuaded. I may say at some conferences I have attended I think perhaps they use it now.
But let us consider something which worries me a great deal. The noble and learned Lord the Lord Chancellor has touched on this, but I want very much to emphasise it. I have some knowledge of secret dossiers, including my own, and I am intransigently opposed to them, because the person has no means of knowing or rebutting what is in them, in the case of the police "shadow" and the common informer putting on record information which can be definitely misleading. I remember that during the war I discovered in my secret dossier (I will not tell you how) information which had been obtained. It described how I had left a meeting of the Spanish Medical Aid at Trade Union Hall at 10.30 in the evening accompanied by a very beautiful actress who was fund raising, and the information went on: "He went to her apartment, No. so-and-so Guildford Street, and left at 2.30 in the morning." If my wife had been looking for evidence it might have been rather suggestive; but what that piece of information did not add was that I went with twelve other people. I was the suspect and the others were irrelevant. That is the kind of information which can get into this kind of dossier. Indeed, when I read my dossier during the war I thought, "What a sinister, exciting chap this fellow Calder must have been. I wish I had known him."
What worries me, in the technological age, with this new type of dossier, is the dossier writ large in the form of the "Master Memory", the know-all computer. It is all so plausible. Why should we not have a completely integrated system of information, a central registry with a complete dossier on every man, woman and child in the community, and with total recall of every childhood illness, every adolescent indiscretion and every instance of adult non-conformity—a record of every aspect of an individual's life?
There was great enthusiasm a few years ago in some very distinguished quarters 1068 and among British technical experts—indeed, it alarmed me—for an electronic registry, a national data computer. Incidentally, I would remind your Lordships that there was some reflection on this when we were discussing the Post Office Bill the other day. We must ensure that there are safeguards against this kind of national data computer taking us over as the master memory. The United States is considering a national data centre in which the records of twenty or more Government organisations will be amalgamated in one place. It is proposed that records be kept as files of every individual, "so that the information can be as detailed and as useful as possible". My Lords, I ask you, useful to whom?
Imagine what it would be like. In Britain we have a comprehensive National Health Service. One could have a complete health dossier, recording your childhood measles, your incipient tuberculosis at 16, the last filling and the last bridge which the dentist nstalled—and which, incidentally, was very useful for identifying you when they found your corpse—the prescription for your last spectacles, and the breakdown you had when you were jilted. Alongside would be your police record, including your fingerprints, which you gave innocently when you applied for a temporary security job and your motor licence endorsed, for driving up a one-way street yesterday afternoon. In the same comprehensive dossier would of course be the secret dossier which the security officers compiled when you applied for that security job, and when they had checked up on your neighbours and on the girl who jilted you. Included would be your picture, either passport or candid camera, the eavesdropped conversation you had with the friend who you did not know was politically suspect, your employment back records, including the time you had a row with the boss and walked out, your social and financial status, including the mortgage on your house, your bank account, your income tax returns, your clubs, your political affiliations, your educational history and so on.
Any one of those items might separately be quite innocent. As the noble and learned Lord, the Lord Chancellor, said, if you were rushed to a strange hospital, it would be eminently satisfactory if the 1069 doctors could get an instant talk-back of your medical history. Minor overdrafts seem to have figured quite considerably to-day. It might be evidence, not of indebtedness but of credit worthiness, but in other cases (leaving out personal sensitivity) the disclosure of an overdraft might be positively damaging. But taken out of context or in conjunction with dissimilate information, all the items that I am talking about could produce an utterly misleading and dangerously improper "Identikit". It would not resemble you. It would simply be the official version of who you are, what you arc, and what you have done.
I am convinced that, with the best will in the world, there can be no technical assurances that information will not fall into the wrong hands, even with coded telecommunications access—which, I have been assured by technologists, would make this information as secure as in a private box in a bank; only the people who had the key, the code, would be able to get access to it. This is all going to be brought together in a telecommunications system—it will be in the United States, and to some extent here. But there is no guarantee at all—and I am sure that if the noble Lord, Lord Jackson of Burnley, were here, he would reinforce me in what I say—that the information will not fall into the wrong hands. How many wrong numbers and how many crossed lines have you had on your S.T.D. system lately? Imagine putting through a coded signal to the "Master Memory" to find out my birthday, which would be in the innocent "Who's Who" section, and by technical error hitting the jackpot and getting a total recall of all the indiscretions of Ritchie-Calder!
As you will gather, I am strongly against the "Master Memory", because I am jealous for the rights of privacy of the individual. You may know that the anxieties about technological threats to human rights were discussed at the Teheran Conference on Human Rights and that the United Nations and its Agencies and non-governmental organisations were called upon to examine the situation and suggest safeguards. The dangers that were raised were considered under four heads: one, electronic and other forms of intrusion on the right of privacy; two, implications of computer 1070 based technocracy for democratic Governments; three, protection of traditional cultures against the homogenising influence of a technological civilisation; four, new developments in medicine and biology and their impact on human rights.
I have referred in your Lordships' House on previous occasions to the threat of cultural colonialism, by which a technologically dominant Power could put a broadcasting satellite into orbit and dominate the culture of another country, including our own. I would remind you that a broadcasting satellite—unlike the present communications satellite—does not act just as a reflector of transmissions, from one ground station to be picked up by another ground station, but can beam programmes directly into the home. A broadcasting satellite will be a transmitter in the sky, in space, and it will be programmed directly into the home. I will not elaborate that point further now, but your Lordships will recognise its dangers to cultural privacy—the right of people to have a respect for their awn cultures. We must have a Convention to control the programme content of broadcasting satellites, and we must have it now, because when they get into position it will be too late.
The fourth item—the development in medicine and biology—might very properly, I suggest, provide a subject for a further serious debate in your Lordships' House. We have to consider the profound personality implications of artificial transplants, of personality-changing drugs, and gene manipulation, D.N.A. manipulation, and so forth. We are beginning to move now into a position in which men with no qualifications, except that they are in a position to do it, will be able to take us over and change us into other kinds of people. I am not going to elaborate that matter, beck use it is a very big subject.
In the past, men have conspired to deny others their human rights. To-day these rights are threatened not only by men but by impersonal forces. We are liable to fund ourselves bereft of rights by machines which are not evil or tyrannical in themselves but become so by our default or through unscrupulous men. To me, "human rights" means that every person has a right to his own identity, to 1071 his own personality and to his own cultural values. He is a being; he has a name; he has kinship. He is not just a cipher in a Gallup Poll; he is the person who goes to the booth and actually votes, as "John Smith".
I am more and more alarmed every day at the degree to which we are becoming ciphers. To me, who saw Belsen immediately after the liberation and who also went to Auschwitz, to all the other unspeakable horrors of those places was added the anonymity of imprisonment and death—anonymity, the complete disapearance of the individual; just a tattooed number on the skins of the victims. But to-day, in the same way—less horrifying, but just as reprehensible, in my opinion—we ourselves are liable to become statistics and, from the point of view of authorities, cease to be names and faces. In statistical anonymity we will have no names, no faces, no personalities. We shall just become the code numbers in a computer.
§ 5.2 p.m.
§ THE EARL OF CORK AND ORRERY
My Lords, I am inclined to think that the noble Lord, Lord Ritchie-Calder, was right in the impression that he received from his own dossier. At any rate, so far as his knowledge is concerned I think he is a sinister and exciting chap, and I apologise to the noble Lord for missing the first sentence or two of his speech. I assure him that it was inadvertent, because I never miss the beginning of a speech by the noble Lord, for I know from previous knowledge that it is bound to be up to his usual hair-raising standard—I speak figuratively, of course. I cannot—and there are very few who could, or should—venture to follow the noble Lord on his particular subject, for in our midst we have the expert of all experts on this matter. I would simply say that I hope that his speech will be given the greatest possible dissemination to the widest public, because he has described with the greatest possible authority and knowledge what is possibly the most terrifying danger of our times.
To come to the other subjects which have been mentioned in the debate initiated by the noble Lord, Lord Wade, we are, I suppose, engaged in the third of a trilogy of debates on what might 1072 be described, more or less loosely, as "the quality of life". First, we had that of the noble Lord, Lord Byers, which dealt with threats to amenity; then last week we had the symposium of the noble Lord, Lord Soper, which dealt with the clash between material objectives and social wellbeing; and now comes the noble Lord, Lord Wade, to initiate what ought, to my way of thinking, to be the most useful and constructive debate of the three—that on threats to freedom. No doubt there are certain areas of overlap between the three, but I do not see that that in any way lessens the value of the service which the noble Lord has performed in introducing this debate.
We like to think, I suppose, that Tennyson was right in proclaiming that this, in his words,…is the land that freemen till, That sober-suited Freedom chose; The land, where girt with friends or foes A man may speak the thing he will; A land of settled government, A land of just and old renown, Where Freedom slowly broadens down From precedent to precedent.Freedom slowly broadens down, indeed, until the Briton, thanks to the Welfare State among other things, enjoys more rights than any other man on earth, and as many material benefits as most. Free to say what he likes about the Government, free to be paid by his compatriots for not working, either for their benefit or even for his own, dwelling in a land flowing with milk and money, he may well be looked on by envious foreigners as one who lives the life of Reilly. He may be, but is he? Or have those foreigners noticed that, for all these rights, there is indeed a bill—to pay?
Three hundred years ago, or thereabouts, at the time of the Declaration of Rights, I suppose life in England was reasonably sane. True it was infinitely more uncomfortable, especially for the poor, but it was, on the whole, rational. The Party system, however controversial, and the social system, however inequitable, were at least comprehensible. They operated in ways that could, by and large, be understood. But now, by contrast, why, we live in a country and in a world that would probably seem to William and Mary to be both inhabited and governed by lunatics—not 1073 merely on the vast and obvious scale of confrontation between super-Powers, but on the more domestic levels as well. For now we have "The Economy", and a planned economy at that.
Our own economy, like any other, is based on many things, including, for example, the motor car. All the resources of our leading industry, backed by the power of the Board of Trade, are geared to the project of churning out more and more motor cars, and exporting most of them. More and more people are killed by them, and a vast treasure is poured into wider, safer and straighter roads—in theory, at any rate. Great acreages of land are lost to agriculture, the bulldozer supplants the plough; houses, villages, whole communities, wide swathes through cities, are destroyed, uprooted, razed and their inhabitants rehoused at the public charge, while England slowly turns into a land of nuts and bolts—particularly nuts.
An unofficial strike of dashboard varnishers in Coventry brings television cameras to Downing Street and Transport House, and sets the Stock Exchange quivering like a blancmange. And all on account of the twin gods, overseas trade and foreign competition, and the motor car their prophet. There is no escape, I quite see that, but I deny that the whole monstrous giddy-go-round makes any kind of sense outside its own lunatic terms. This is the point that we have reached in our progress towards what we are apt to refer to as "civilisation". Progress towards civilisation, I apprehend, is measured not by stages in, say, the evolution of the human spirit, but by the appearance in the shops of the ball-point pen, the tape recorder and the drip-dry shirt. We have come to cherish what G. K. Chesterton called,All the shapes in which that immense illusion called materialism can terrify the soul.Perhaps it is largely our own fault. We started the Industrial Revolution and now we pay the dark satanic bills.
At a very early stage in this civilisation process we appreciated that the bill for progress would have to be paid partly in inroads into our individual freedoms. For whatever else civilisation may mean, it certainly means, by definition, the organisation of citizens living in a community, with all the give and take that that implies. But we also determined that curtailment of our liberties in the 1074 common interest should be imposed by mutual consent, and not from above; hence Magna Carta and the Declaration of Rights. We took away authority from our Sovereigns, and entrusted it to Governments of our own appointing.
But, my Lords, observe the inevitable result. Sovereignty passed from Crown to people, as intended. There was nothing to prevent its passing eventually from Parliament to Government, from the Legislature to the Executive—and is this not precisely what has happened? Under a sane and rational system perhaps it would not matter. Government being responsible through Parliament to people, the people remain sovereign. But, as I have tried to hint, a sane and rational system is precisely the thing that we no longer have. Instead we have a situation in which England, the Mother of Parliaments—pace the noble Baroness, Lady Summerskill—is bound to look with anxiety on the antics of her eldest child. For the tyranny of kings is in a fair way to being superseded by the tyranny of Governments. The process is not yet complete, but if we take no steps to halt it, it may well become complete. Already it has gone so far that in Scotland and Wales, and even in parts of England, there are to be heard the rumblings of revolt.
May I draw your Lordships' attention to one of the current and all too familiar symptoms of this danger? The operations of the Land Commission—perfectly legal operations—have produced effects which the Government themselves have admitted to be unjust, with the result that amendments have been made to prevent such injustices in the future. But these amendments are not to be retrospective. Injustices already committed are not to be rectified. Why not? Because their rectification is administratively difficult. When a Government admit that they have caused injustice and financial hardship to certain citizens, but refuse to set the matter right because it would be inconvenient to themselves, how brightly, then, does the red light begin to glow? Does not the glow become a glare when the Chairman of the Land Commission himself says that the administrative difficulty is not insuperable, and that the £150 million involved could in fact be paid back immediately if the Government gave the word?
1075 This, I think, is the arrogance of tyranny within the law, and therefore something that no Parliamentary Commissioner can touch—and I wonder whether this might be germane to a consideration of the first of the areas of which the noble and learned Lord the Lord Chancellor spoke: the question of whether the Parliamentary Commissioner can in fact act, or should be enabled to act, within the actual framework of the law; that is to say, against legal injustice rather than against misapplications of legislation. This tyranny, as I have been pleased to call it, is one of the causes of the great malaise that was described by the noble Lord, Lord Soper, in the debate on his Motion last week. It recalls to my mind what was surely one of the outstanding features of that debate. I refer to the memorable speech of the noble Lord, Lord Beswick, who said, among other things, this:Anyone who seriously suggests that the Labour Government is the cause of this malaise is lust being false to himself. Anyone who makes out that the cure is simply to turn to a Conservative Government is playing a Party game that is not relevant to our time."—[OFFICIAL REPORT, 11/6/69, col. 656.]I agree on all counts, and I dare say that the noble Lord will not object to my quoting his words in a context very slightly different from his own. I have quoted a particular case, that of the Land Commission and the betterment levy, because it is topical; just as at another time I might have quoted your Lordships a "Crichel Down". Rights and freedoms are in danger, my Lords, simply because the Parliament that was once the watchdog of the people's liberties against the Crown has taken those liberties ever more and more completely into its own hands, only to allow them to slip out of those hands into the shadowy keeping of Governments. And who, as Juvenal so pithily inquired, is going to keep an eye on the keeper?
I confess that I am alarmed. To quote Chesterton again:I tell you naught for your comfort, Yea, naught for your desire, Save that the sky grows darker yet And the sea rises higher.I do not mean by that that I fear the increasing tyranny of the Labour Government—for which, in any case, it seems possible that the sand is sinking in the 1076 glass. What I fear is the collapse—I might also say the death—of the Labour Party as we know it. I am not referring to the likelihood of its defeat at the polls at the hands of the electorate, though even that is something that I confess to contemplating with mixed emotions. Naturally, sitting where I do, I wish to see the Labour Party restored to its time-honoured place, in Opposition. But I want it to be, as I think anybody should, an effective Opposition, for I certainly do not wish to see one-Party government by any Party. That would be bad enough; but when I say "death". I mean death, not collapse.
The end of the Labour Party as we have known it hitherto—I shall not receive universal approval for this remark—is probably inevitable some day in any case, for in the respect that it was formed for a purpose, in that respect it cannot hope to continue, or at any rate not to continue indefinitely, once its purpose is achieved. The demise of the symbolic cloth cap of the worker implies the advent of the equally symbolic bowler hat for the politician who strove for that demise. What we are witnessing now—and by "now". I may say, I mean this afternoon—is not simply a clash between Labour and the unions, I believe: it is the inherently inevitable split between the Labour Movement, on the one hand, and theoretical socialism on the other; and I do not see that both can survive and continue hand in hand.
On the Benches opposite there sit some whom I like to think of as my friends and who I believe will be ready to acquit me of a charge of Party-politicking when I talk like this, for they will already know that I do not want to see this happen. I know perfectly well that the break-up of the Labour Party would be a calamity for Britain. For, quite apart from the prospect of a long period of ineffectual Opposition, what should ge get in its place? A Party of the extreme Left, perhaps, dedicated to all the unreasoning and outmoded dogmas that the sacred Clause 4 could be made to spawn? That is a possibility real enough and dangerous enough, I suspect, to strike terror into the hearts of most of the Party itself. If that should happen, I believe that the freedom of the subject would indeed be in danger, if not doomed.
1077 Whether the danger to individual rights comes from the Right or from the Left, or bubbles up like a volcano under our feet in the Centre, I think that the danger is real and that something ought to be done before it gets worse. But what? The noble Lord, Lord Wade, spoke of the possibility of a Bill of Rights. I had doubted whether such a thing was in fact feasible, and my doubts were strengthened somewhat, not to say considerably, by the speech of the noble and learned Lord the Lord Chancellor. I refer to the noble and learned Lord's eighteen-minute speech on the subject of the Motion, not to his preliminary sixteen-minute speech as public relations officer for the Labour Party. I appreciate that to attempt to safeguard rights in statutory terms would be to set up numerous conflicts with the existing laws. Such a measure is probably, therefore, not what is required.
What is required, I submit, is some kind of a watchdog body not within nor answerable to the Legislature, that will examine the justice of acts of Government, particularly those performed under delegated powers by Ministers of the Crown. Examine, I repeat, the justice of such acts. I know that the noble Lord, Lord Wade, does not agree with this. He thinks, if I understand him correctly, that this would limit the sovereignty of Parliament. That may be an objection; I am not at all sure. I use the word "watchdog" for a particular reason, for a watchdog, if it is of any use at all, is self-actuating. You do not have to tell it when to bark or when to bite the burglar: it operates on its own good judgment.
Where would such a body be and what would be its powers? It would be within the Judiciary, and would function on the principle that what is legal is not necessarily just. If that be accepted as a constitutional principle, then the function of this court—for it would be a court—would be to say to Government, "What you propose is unconstitutional, and will not be done". Not, I suggest, "should not be done", but "will not be done"—that is to say, an absolute veto.
There is nothing startlingly novel in the idea. Most other civilised countries have accepted it. The Supreme Court in the United States, for example, is a reasonably accurate case in point. Some such arrangement here has become, I 1078 believe, imperative, and for a reason that I cannot state better than in some recent words of my right honourable friend Mr. Quintin Hogg. I quote:For consider. Parliament has become virtually an elective dictatorship. Its constitutional legislative powers are admittedly unlimited. Its legislation cannot be questioned in any court. Originally conceived as a brake on the Executive, these powers are now controlled by the Executive in the shape of a monolithic Cabinet.It is not within my powers or province to know how such matters should best be attended to, but I am pretty sure that something of the sort could be done. I believe that it should be done. For that great freedom, the freedom to receive justice as of right, is in peril. Let that at least be safeguarded, for on other fronts enemies of freedom and of human rights are closing in. And I am bound to say that I think that they are more likely to close in under Governments of the Left than of the Right.
A political philosophy that not only believes in public ownership, which is surely acceptable, but also that failures in public ownership are best cured by more public ownership, is potentially dangerous. Rulers who believe that when controls make the situation worse, instead of better, the remedy is stricter and more deadening control are dangerous. For the end is more government, while one of the evils under which we labour is that there is already too much government. The end is more and more powerful public corporations, operating less and less efficiently as competition against them is diminished; it is more bureaucrats, more ministerial patronage, more Orders in Council; more faceless men shielded by, if not hiding behind the myth of ministerial responsibility; more enforcement, more inspectors, more information-collecting services, more planning, less freedom; and much, much less privacy.
§ 5.21 p.m.
My Lords, I would thank the noble Lord, Lord Wade, for initiating this debate and for his generous references to my late father and to myself. I support a clearer definition of several of the rights of the citizens but not the suggestion that these rights should be listed or included in a single Bill, a Bill of Rights. The name, "Bill of Rights" is taken, I assume, from the 1079 original Bill of Rights of 1689. That was a political measure. It established the rights of the Protestants and limited the rights of the Catholics; it is no precedent for the problems of to-day.
I am opposed to a single Bill for three reasons additional to those suggested by the noble Lord, Lord Derwent. First, many rights are already defined in existing Statutes and common law precedents and it is unnecessary to repeal them and to transfer them to a single Bill. The noble and learned Lord the Lord Chancellor pointed out how complex are some of these rights, how difficult it is to draw the line between liberty and licence. Secondly, the elaborate drafting required means that each is almost enough for a single Bill. Thirdly, I believe that these rights should be dealt with as each comes up.
This gives much greater flexibility and is in line with the British pragmatic approach to problems. There is no written Constitution. Many countries which have one have included a definition of rights in their Constitution. The noble Lord, Lord Wade, mentioned Israel. Israel follows the British practice and has not embarked on a written Constitution. Nor has it gone in for the definition of what are the rights of the citizens, because it was felt that it would take up much too much time. In Britain there is the same attitude, the piecemeal approach. I agree that certain rights need greater definition, some as the result of technological advance—which is included in Lord Wade's Motion.
I should like to make a point which I do not think has been made in this debate until now; that is, that there are two distinct classes of rights. One is the right of the individual against other individuals; the other is the right of all individuals against the Government, in the broadest sense of the term. In the second category I would include wire tapping, in all its forms, which could be Governmental for State security; but there are strict internal limitations. I do not know that a case has been made out for strengthening the limitations, but there is also a problem of individual rights against other individuals—for example, private detectives—which I think need greater definition. The noble Lord, Lord Ritchie-Calder, in what I may say 1080 was a most powerful speech, mentioned all the different types of electronic devices, the "bugged" room, the espionage from a distance. I think that all these forms need definition, stricter control and even outlawry.
Then we come to industrial espionage. Many firms have industrial secrets that cannot be patented. Their rivals are eager to get them. There are three distinct ways of doing so. The first is the stealing of industrial secrets by employees who offer them for sale to rival firms; the second is the luring away of employees of one firm by another firm and their telling what they know of secret processes in their former employment; and the third is the introduction of spies into a firm in order to report. All these involve questions that must be considered: firms to-day need far greater protection than they now have. I would also mention credit rating. What are the rights of an individual whose bank manager tells, in confidence, to some inquirer what his credit rating is? And what of the special credit-rating bureaux that will supply information?
There is a general fear that information that is collected for one purpose may be used for another. In certain respects, the Government have taken definite measures against the misuse of information collected by the Government themselves. For example, census information cannot be used for other purposes, and income tax information is confidential. That is what the noble Lord, Lord Derwent, mentioned as a principle. But it does not apply to private information. Many noble Lords who have spoken to-day have expressed their fear of the computer. It is no longer, "Big Brother is watching you"; it is "Big Computer is watching you". I believe that a case has been made out for a much clearer definition of the protections that should be applied against the invasion of privacy.
Then we come to protection against Press, radio and television reporting. The noble and learned Lord the Lord Chancellor mentioned, as did the noble Earl, Lord Arran, the intrusion on private life. Some people seek publicity but most shun it. Nevertheless, if something scandalous is done it should be reported, and, in my opinion, it is better that there should be too much reporting than too little. But 1081 let us take, for example, the victim of a misfortune. Let us take the widow of some public figure who is killed in an accident. She can be hounded by reporters and cameras. This gives rise to great public as well as private resentment. The Press, of course, exercises considerable tact, but competition does cause lapses by eager reporters. The noble Earl, Lord Arran, referred to the Press Council, which I think has done admirable work. I suggest that the position at the moment is satisfactory and that this is not a subject suitable for legislation as it is impossible to draw hard and fast lines.
Similarly with freedom of thought. Actually "freedom of thought" is a misnomer for freedom of expression. One may think what one likes; there is no machine yet that can read one's thoughts. The Japanese had a law against "dangerous thoughts"—actually they meant against the expression of dangerous thoughts—and it was a machinery for the repression by the Government of thoughts considered dangerous from their point of view. On the whole, freedom from censorship has been gained, but the protection of the expression of opinion by one individual against others is very difficult.
The noble Lord, Lord Wade, mentioned, as did the noble and learned Lord, the Lord Chancellor, John Macdonald's draft Bill. In Clause 4, on the freedom of speech and opinion, Macdonald says:Every person is entitled to express his opinion on any thing or matter"—et ceterasubject only to the right of any person aggrieved thereby to seek relief at law for injury to reputation.As a principle, this is very fine, but what about obscenity? What about blasphemy against the Diety? God cannot seek relief in law for an injury to His reputation. People think that we are now in for a completely permissive society or, to use an Americanism, a society where "anything goes". But I submit that this would cause great offence to millions of God-fearing people. No, my Lords, I think that the drafters must think again and realise that it is impossible to provide simple solutions.
The second category I mentioned, the right of the individual against the Gov- 1082 ernment, has concerned many noble Lords this afternoon. Again we should be in difficulty if we tried to draft principles. When he presented a Bill in another place, Lord Lambton included this clause:There is no right to enter any premises or properties without a warrant.That, again, is an excellent principle. An Englishman's home is his castle. But what about hot pursuit by the police? An escaping bandit dashes into a warehouse and the police in a patrol car who are coming after him pull up outside. The policeman says, "Hold on a minute, chum; I must go and get a warrant." Or suppose there is a 999 call, and a woman shrieks, "Help, help, somebody is trying to kill me!" The reply would be, "All right; we will apply for a warrant." Suppose a tire brigade is called to a fire, and a fireman batters down your door. Would you sue the brigade for illegal entry? I am not surprised that the Bill was refused a Second Reading.
My Lords, there are several other respects in which individuals need greater protection against the Government for example, the right of appeal in cases of refusal of citizenship, refusal of a passport or refusal of entry into Britain. These are all administrative decisions and I think it quite wrong that there should be no formal right of appeal to an independent tribunal. It is not enough to have a right of appeal to the Minister. For five years I was a deputy chief immigration officer in a Colonial Government—in Palestine—and I had constantly to review the decisions of immigration officers who were on duty at the ports, airports and land frontiers. Very often they were junior officers, tired, and with a rather dyspeptic view of life. Being exposed to so much trickery they had their doubts, and people were detained and returned to where they came by the next plane, boat or train. I think that everybody who is stopped by executive decision, or refused something which he thinks he has the right to obtain, should be told of his right of appeal and given legal counsel, and his own interpreter, because in a great many cases a language difficulty is involved as well.
I also suggest that there should be an absolute principle that where there is 1083 secret information by security personnel—by the police, or immigration officers, or M.I.5—which might justify somebody's being refused a passport, or refused admission to this country, the information should be submitted to the tribunal. The idea that a counter-espionage officer can say, "We have strong reasons to protest against this permission being given", is not enough. The tribunal would be just as loyal as the intelligence officer and could be trusted with information which would be imparted in confidence. It would then be for the tribunal to make up their mind whether the information was sufficient to support a refusal.
The noble and learned Lord, the Lord Chancellor, raised the question of a special division of the courts to deal with all questions of administrative law. I support this idea, but I would not suggest anything as complex as the French system, the Conseil d' État, with its own hierarchy. There is now a precedent in New Zealand where the initiative has been taken for an administrative law division of the Judiciary—one more example of pace-setting in the Commonwealth. New Zealand was, after all, the first Commonwealth country to introduce the Parliamentary Commissioner. I think this needs further investigation here. The suggestion of a Royal Commission would seem to me the best method of approach, and I warmly endorse it.
As was said by the noble and learned Lord, the Lord Chancellor, the Parliamentary Commissioner, the Ombudsman, has proved to be a very valuable safeguard against maladministration, and I agree that the present limits are too narrow. As the noble and learned Lord said, they exclude the hospital service, nationalised industries, the police and local government. I think it was wise to start on a small scale and expand, for fear that the Parliamentary Commissioner might be swamped. There is only one field about which I am doubtful, and that is local government. After all, local authorities are not responsible to Parliament. They have their own elected councils, and I would suggest that the solution would be to have a commissioner for each local authority who would be responsible to that authority. One has been introduced in the city of Jerusalem in which I spend most of my year. 1084 Jerusalem has its own Ombudsman, and there have been very effective results. I suggest that that is the right line of advance, rather than giving the Parliamentary Commissioner authority in local government matters in Britain.
But what is the use of rights, my Lords, if people do not know about them? I strongly advocate a greater extension of the citizens' advice bureaux. They were invaluable during the nightmare of World War II, and the jungle of laws and regulations is still a nightmare for many citizens to-day. I think that citizens' advice bureaux should be made compulsory in all local authority areas and their existence should be widely advertised. But even if the citizen knows his rights, what is the good if he cannot fight the Government for the recognition of his rights? Here again, as the noble and learned Lord the Lord Chancellor said, a considerable extension and strengthening of legal aid is needed. There is a request for nearly £1 million sterling to pay for this extension in legal aid. The fields in which approval has been given by the Treasury form an exceedingly small fraction of the £1 million. If the Government is really interested in the protection of the rights of the citizens in their perpetual struggle against itself, I would suggest that it should see that the rest of the £1 million is voted without delay. I regard that as just as important as trying to define rights and much more important than trying to draft a single Bill of Rights.
§ 5.41 p.m.
§ LORD BEAUMONT OF WHITLEY
My Lords, we are reaching the end of a far-reaching and interesting debate, for which we are all grateful to my noble friend Lord Wade. I hope that your Lordships will forgive me if I pick up one or two points made in the debate before going on to the single main point that I wish to make.
First of all, I should like to say how much we on these Benches, like, I am sure, a great many other noble Lords, welcome the hint that the noble and learned Lord on the Woolsack gave about the possibility of an extension of the law. Of course we are disappointed that he could not be more firm and definite, but we understand, and certainly hope, that there will be progress on this, particularly with regard to the Ombudsman and the 1085 law of privacy. I thought that in his firm rebuttal, and deserved rebuttal, of the Conservative claim to have a monopoly of liberty, the noble and learned Lord was a little unfair about the part taken by a large number of Conservatives in such bodies as the National Council for Civil Liberties. Speaking as one who takes a strong interest in this work, I am always impressed by the tremendous energy of such people as Dame Joan Vickers and the support and sympathy of the noble Lord, Lord Harlech.
This particular side of civil liberty, dealing more with rights against the law than with economic rights, is one on which all Parties can get together and can take a strong non-Party line. I entirely agree with the noble and learned Lord about this blind spot that the Conservative Party appears to have on the subject of economic liberty. Economic liberty is just as important as other kinds of liberty. Liberty is freedom to choose between courses of action, and we can be as crippled in our ability to choose by our economic position, by lack of money or lack of education, as by any laws and regulations put over by Government. On the other hand, I think that the Labour Party is not always alive to the danger of Governmental and bureaucratic control, and if I say that one of the great virtues of the Liberal Party is that it tries to bring these two into balance, it is not because I am a member of the Liberal Party but because one of the reasons which led me to join the Party was that I believe this balance to be important.
I thought that my noble friend Lord Arran, in talking about the liberty of the Press, was quite right when he implied in his speech that the case he was making had already been accepted. I think that this is shown by the fact that, in spite of their being slightly provocative, there was no growl from any noble Lords at the remarks my noble friend made. I think we appreciate very much the improvements that have happened in the Press over the last few years. I agree with what the noble Baroness, Lady Summerskill, said in her speech. It appears to me, if we look at the whole realm of human rights in England to-day and project ourselves 20 or 30 years ahead, that if there is one respect in which we have been seen to have been 1086 prejudiced, powerless, inhuman and thoroughly wasteful, it is in our attitude to women's rights, not necessarily but to a great extent before the law, and certainly in public opinion.
I have been disappointed by the altitude of so many speakers towards the whole idea of a Bill of Rights. Certainly I would take issue with the implications of the remarks of the noble Bareness, Lady Gaitskell, who said (I hope I have it right) that a Bill of Rights is no substitute for the spirit of liberty. I entirely agree with her, of course, as I imagine do most noble Lords, but that is no reason why we should not have strong reinforcing and declaratory legislation as well. Surely this argument against a Bill of Rights is exactly what noble Lords on the Conservative Benches urge against the Race Relations Bill: that it is no substitute for the spirit of fairness; it is enough to have that spirit. We have to reinforce this spirit by legislation. I should have thought that in the field of human rights this is what we want to do.
But I have been more disappointed—and here I come to my main point—that this debate has not thrown up more examination of the whole principle of entrenched legislation and the power of the Government and of a more or less single Chamber of Parliament. Until we had the speeches of the noble Earl, Lord Cork and Orrery, who certainly went into this, and of the noble Viscount, Lord Samuel, who did so to a lesser degree, it did not appear to me that we were in touch with this extremely important point. Because democracy is not just about the imposition of the will of the people. It is surely, at least our form of democracy, about the protection of minorities from the majority, and it is here that there is some danger of to-day.
Rousseau said:The people of England are free at a General Election and then they enslave themselves.Strong words, my Lords, but even Rousseau was speaking before the prerogative of the Crown had completely disappeared and before the powers of your Lordships' House had been reduced to a very minimum. I am glad, on the whole, that these things have happened; but that does not mean we should be complacent about the power that we have 1087 put in a single place. I have been particularly perturbed at the treatment of the Bill for the reform of your Lordships' House, because it seems to me that on all matters of constitutional reform, particularly dealing with Parliament, it is not very sensible to put all the power in the hands of the most interested parties themselves. This is something of which we ought to be aware.
I think that we must devote more time and more trouble to an examination of where the power in a democracy should lie. I believe that we too easily accept that nothing must stand between what another place decides and action. In my view, there must be balances and counterbalances. We do not have them in our unwritten Constitution—we hardly have them at all. It may be that we shall never get them. It is very nice to be able to trust to the good sense of the legislators and of the people of this country. Liberals are often accused of being starry-eyed and idealistic. We are also fairly cynical about power, and have been over a long period of time. The people who say that "It cannot happen now", and that "It cannot happen here", are the people who, in the end, are asking for trouble. We have only once heard the cliché, so perhaps I may repeat it; that "The price of liberty is eternal vigilance". And eternal vigilance can be helped, I think, by strong, declaratory and, if necessary, entrenched legislation of a kind which will have a check on a single all-powerful senate.
I have not had time to go into this matter deeply this evening. I merely wish that your Lordships had tackled this subject at this particular point a little more, because I should have liked to listen to your Lordships' wisdom on what seems to me so much the very central point as to whether a Bill of Rights is or is not the right solution. I, for my part, confess that I still think that it is.
§ 5.51 p.m.
§ LORD CHORLEY
My Lords, I should like to say a word or two in this debate. I did not put my name on the list, because I had to be away for a substantial part of the afternoon and although I heard the earlier speeches I did not know whether I should be back in time to add 1088 a comment or two at the end. I will make my remarks quite short. I think there is a great deal to be said for the belief that from the point of view of civil liberties a Bill of Rights can be valuable. I have always taken a great interest in the American Constitution, and recently I was in the United States, where, partly through the original Constitution, and partly through the Amendments which were later made to it, they have what constitutes a Bill of Rights. There can be no question that to the American citizen this has been a sheet anchor of liberty time after time. As demonstrated by the Supreme Court in the United States, there can be no questioning the real importance which the Bill of Rights has had in that great country.
To take one instance, to me, who has not been in the United States for some 20 years, the problem of racial discrimination—which is obviously infinitely more difficult there, and which certainly has not been solved there any more than it has yet been solved here—has improved almost out of knowledge during that time. I went back with the experiences of the late 'forties in mind and found the situation radically changed. I should think that to a large extent this has been due not only to actual decisions of the Supreme Court in the United States—decisions given on the American Bill of Rights, and on the American Constitution and the Amendments thereto—but also to the effect that that liberalising influence of the Supreme Court over the last 20 years or so has had on public opinion in America, which is a most important factor in this matter. I should therefore like to support Lord Wade's suggestion that we should seriously consider putting a Bill of Rights on to our own Statute Book. Although it could not become a fundamental law, in the way that it is in the United States, I think that with a guiding legislative code of that kind to help them, it would not only assist our courts, but liberalise public opinion.
That brings me to the other point that I should like to mention (if it has been mentioned earlier, I apologise), and that is the light which the recent case of Sweet v. Parsley, which came before your Lordships' House not long ago, throws on a wide aspect of the English criminal law. From the later years of the last 1089 century, as I am sure your Lordships are all well aware, we introduced a method of establishing criminal offences without any guilty mind on the part of the criminal. Obviously, to a large extent, that type of legislation is very necessary. Unfortunately, the case of Sweet v. Parsley is by no means a unique case. Dozens of other cases of the same kind—although perhaps not so extreme—could be adduced by any person who is familiar with our criminal law. Dozens of other cases show how, as the result of failure on the part of ourselves and those in another place to appreciate what we were doing, we have made all sorts of actions, or lack of actions, criminal in cases where obviously there was not only no guilty mind, but no sort of negligence on the part of the person concerned.
Miss Sweet, as your Lordships will remember, let her cottage in the country to some people who made a wrongful use of drugs—cannabis. She let the house in the ordinary way, and had absolutely no idea of what was going on. Yet because of the way in which the legislative enactment was drafted, she was brought before the magistrates and convicted: and your Lordships' House, the supreme tribunal, eventually ruled that that was wrong. But if it had not been for Miss Sweet's pertinacity and the way she pushed her case, the decision in favour of a conviction would have been a governing authority. There are many other governing authorities of the same kind.
This is a serious matter. Continually in my own experience as a practising lawyer, particularly as a magistrate and at quarter sessions, I have come across this sort of thing. I think it is time that some procedure was initiated in Parliament by which our attention is drawn, as these Bills and Orders in Council go through, to the question of whether something is made an absolute offence without a guilty mind being brought into the matter. We should give proper attention to whether this is the right sort of case to establish this extreme form of criminal responsibility.
I think it would be valuable if this matter could he looked at more in detail, so that if a Bill, an Order in Council, or 1090 any other legislative enactment (and of course they always go through this House in one way or another) contains a clause creating a criminal offence without any criminal responsibility, in the ordinary sense of the expression, on the person who is made guilty by the Bill or Order in Council, that fact should be brought to our attention. We should then give careful consideration to whether this is not a serious infringement of the general liberty of the subject; and if we feel that it is not a proper case for this, we should take the necesary steps to stop it. Those are two points that I think are of some importance, and I appreciate your Lordships' allowing me to intervene in this rather irregular way.
§ 5.59 p.m.
§ THE LORD CHANCELLOR
My Lords, if I may have leave to speak again I shall not detain your Lordship; for long, because I really said what I wanted to say when I addressed your Lordships before. I do not think I disagree with anything that my noble friend Lady Gaitskell said. My noble friend Lady Summerskill raised the question of equal pay; I rather thought that she might. I think that successive Governments have a bad record on equal pay. It has been said for a long time that we are in favour of it, and it is about time that we carried it out. But I do not think my noble friend is right in saying that we simply ignore it. I was interested to see recently a report of an inter-departmental working Party on the national minimum wage. In paragraph 184 they say:The Government are fully committed to the application of the principle of equal pay, and since 1966 have been examining jointly with the C.B.I. and the T.U.C. the problems involved in this application. On 26th June 1968 the First Secretary announced that she would he having discussions with both sides of industry with a view to agreeing a timetable for the phased introduction of equal pay over an appropriate period. As a preliminary to further discussions, the tripartite inquiry is at present being conducted by the D.E.P., C.B.I., and T.U.C. into the likely cost of equal pay in different parts of industry. Meanwhile the Government have made it clear that the phasing of a programme for the introduction of equal pay will have to take account of general economic circumstances".We are pursuing it; we are not being idle about it. I see that this Committee came to the conclusion—and I am not really qualified to say whether the figures 1091 are right or not—that the application of a common minimum of 7s. 6d. an hour to both men and women, with a 50 per cent. premium for hours worked in excess of 40 per week, assuming this was generally applied in industry and that juveniles would receive pro rata increases, would cost an extra £3,800 million a year. That is obviously the reason why this can only be done over a period of years. As the noble Baroness will see, we have committees working on it, and they cannot work too fast so far as I am concerned.
The noble Earl, Lord Arran, referred to the Press, and I entirely agree with what he said. I agree there has been a very noticeable improvement in this field in the past fifteen years. He is probably right in suggesting that it is partly due to the Press Council, and partly due to public opinion. Whether the individual ought not to have some legal right may, nevertheless, be open to question. In the case I took, at the moment the private citizen can do nothing, because if it is true it is a complete answer to any action of defamation, so there can be no action of libel. That is not so with criminal libel. Prosecutions for criminal libel are extremely rare. It is perhaps questionable whether the individual ought not to have a legal right of protection from publication of matter which is not really, or ought not to be, of public concern. I appreciate that the line to be drawn is a very difficult one. That is the difficulty.
I noticed that when criticism was made of the newspaper which insisted on publishing the name of the donor, contrary to the request of the doctors, and which led to the doctors saying that this caused a stoppage of donors and so people died, the newspaper at once said that the public had a right to know. That is the question: do the public have a right to know anything and everything which a newspaper may dig out? I was fascinated by the speech of the noble Lord, Lord Ritchie-Calder, with his extraordinary knowledge of modern inventions. He made me feel we ought to have had a law of privacy a very long time ago.
We had, if I may say so a very good speech from the noble Earl, Lord Cork and Orrery, and I would agree with him that there can be such a thing as tyranny 1092 within the law. I sometimes feel that when all legal remedies have been exhausted we ought to have a Court of Last Resort, particularly in criminal cases, which, ignoring matters of law, could look at the thing as disinterested, distinguished citizens might do. I agree with the noble Viscount, Lord Samuel, that it is really much better to deal with each subject as it comes up, rather than trying to deal with everything in one vast Bill of Rights. The Macdonald Bill is an example of the actual difficulties of a Bill of Rights. I agree with him that the question of nondisclosure of information is obviously an important one, and that there is more need with local authorities in some sense, so far as the Parliamentary Commissioner is concerned, than in any other field. I would apprehend with him, that one must have a separate person, or separate people, since the Parliamentary Commissioner works because he can report to a Select Committee of the House of Commons, who can take action in relation to both Ministers and civil servants, whereas Parliament has no direct control over local authorities.
I listened with great attention to what both the noble Lords, Lord Beaumont of Whitley and Lord Chorley, said about a Bill of Rights. I will promise not to close my mind about a Bill of Rights, but I can only say that I am waiting to see one that would be practicable. All those that I have seen so far either state not very accurately the law as it is now, or are so general and so woolly that it would be absolutely impossible for anybody to know how they could be applied. I am aware of the fairly recent example of the Bill of Rights in Canada; but although that was introduced some years ago, I have not heard that it has had any real, practical effect on any cases which the court has decided. The court, I gather, when it was sought to apply it to some previous Act, said, "Well, they did not repeal the previous Act when they introduced the Bill of Rights, so they cannot have meant it to have any effect on the previous Act". Something of the same sort might happen here.
May I say that I am indebted to my noble friend Lord Chorley for his suggestion about Sweet v. Parsley. I do not think this has strictly to do with a Bill of Rights, but it is more a law reform point. It is quite true to say that in 1093 the old days a criminal offence was something which everybody knew was morally wrong, because criminal offences were limited to that kind of thing. So it was always the law that you could not commit a criminal offence, unless you had a guilty mind. Gradually, as we created absolute offences, and said, "If a man does this it does not matter whether he has a guilty mind or not, he is to be guilty", very often we in the Courts asked ourselves, "In this particular case, as the Act does not say, did Parliament intend this to be an absolute offence, or did it intend, as in the old days, that there must be a guilty mind?" Lawyers are not allowed, in arguing the point, to refer to Hansard, but I have frequently looked at Hansard in such a case, and the answer is that Parliament never intended anything at all, because the point was never raised and never discussed.
It seems to me that there is a good deal to be said for the proposal made by my noble friend Lord Chorley, that it ought to be somebody's business to raise the point. I think I am right in saying that in the Bill of Rights proposed by Lord Lambton this year there was a clause which did not appeal very much to my right honourable friend the Attorney General, that the Attorney General should have to look at every Act and every piece of subordinate legislation to satisfy himself that it complied with the Bill of Rights. There is no reason why on this rather limited point the noble Lord's suggestion should not be adopted. It is primarily a matter for my right honourable friend the Home Secretary, and I will certainly convey that suggestion to him.
My Lords, we have all had a most interesting afternoon, for which we are indebted to the noble Lord, Lord Wade. May I thank him again for having introduced the Motion.
§ LORD RITCHIE-CALDER
My Lords, before the noble and learned Lord sits down, may I ask him to repeat the figure which has caused some confusion? Was it £300 million additional cost a year, or £3,000 million?
§ THE LORD CHANCELLOR
My Lords, £3,800 million. That is on a footing of 7s. 6d. an hour for both men 1094 and women, with a 50 per cent. premium for hours worked in excess of 40 per week. Assuming extended repercussions throughout the entire wage and salary structure, it might cost an extra £3,800 million a year. Those figures assume that juveniles would receive pro rata increases.
§ 6.11 p.m.
§ LORD WADE
My Lords, I am very grateful to all those who have taken part in this extremely interesting debate. I certainly do not wish to spoil a good debate by commenting at length on the speeches we have heard. May I therefore be forgiven if I make only a few brief remarks? I should like to thank the noble Lord, Lord Derwent, for his speech and also for filling a gap in mine by his historical review. I am not quite sure whether he is in favour of entrenchment or not. I think not. I understood him to say that he did not think that one Parliament should take away the powers of a future Parliament.
§ LORD DERWENT
My Lords, I am sorry if I did not make myself clear. I meant the opposite, whatever I said. What I said was that a Bill of Rights could not stop one Parliament from altering what a previous Parliament had done, sc long as whatever it did was not against the Bill of Rights. Therefore, there should be entrenched clauses in the Bill of Rights.
§ LORD WADE
My Lords, I think I understand that. But my own view coincides with what is stated on page 14 of Mr. Macdonald's Report. I think it is an excellent Report. A great deal of work must have been put in to it, and the fact that it has aroused so much interest is evidence of this. Of course I did not expect the noble and learned Lord on the Woolsack to rise and say that he accepted the whole of it straight away, first go. Things do not work out quite like that. But he has certainly dealt with the subject very sympathetically.
May I make these few comments? So far as the Ombudsman is concerned, I hope that his powers will be extended. I might perhaps mention that I introduced a Private Member's Bill on this subject, which unfortunately was defeated. So far as the Report of the Law Commission is concerned, I have been unable 1095 to obtain the Command Paper and have had to rely on Press reports. But I hope that something will be done about that. It seems to indicate that all is not quite well so far as administrative acts are concerned. I would join with my noble friend Lord Beaumont of Whitley in thanking the noble and learned Lord the Lord Chancellor for what he has said. I agree with the noble Baroness, Lady Gaitskell, in that a Bill of Rights will not suffice by itself; it depends on what is made of it. Nevertheless, perhaps some of the remarks of my noble friend Lord Beaumont were fair.
I am most grateful to the noble Baroness, Lady Summerskill, for her support, particularly on Clause 2; I was greatly encouraged by it. As to the speech of my noble friend Lord Arran, we did not attack the Press. I agree with the noble and learned Lord the Lord Chancellor that there has been improvement. In any case, the noble Earl is a worthy champion of the cause of the Press. But, of course, intrusion into private lives does not apply only to the Press; it goes wider than that. The noble Lord, Lord Ritchie-Calder, speaks with such great expert knowledge that I found his speech fascinating and at the same time disturbing. I do not think the problem to which he referred will be completely solved by legislation at a national level, but that does not absolve us from attempting to try to deal with it, and I urge that we tackle it before it is too late.
I think that one purpose of the speech of the noble Earl, Lord Cork and Orrery, was to point out that Parliament is not sufficiently a watchdog. With that view I agree. On his constitutional proposals, I will read in Hansard what he said. I am not entirely sure that I agree with him so far as entrenchment is concerned. I was greatly interested in the speech of the noble Viscount, Lord Samuel. There is of course a difference between the Bill we are now considering and the original Bill of Rights. However, if the principles are brought together in one Bill it does not follow that the interpretation by the courts would not continue. It is not quite the same thing as a rigid Constitution. I certainly welcome his constructive suggestions.
1096 My noble friend Lord Beaumont of Whitley made an extremely able speech and made it almost unnecessary for me to reply to this debate. I welcome his point about the protection of minorities. However, on hearing his remarks I felt that we ought to start the debate all over again on this subject of entrenchment, because there are two points: first, should we have a Bill of Rights; secondly, should we have entrenched clauses? But I assure your Lordships that I am not going to start the debate all over again. I am grateful to the noble Lord, Lord Chorley, and I thank him for his support. I was very happy about the decision in Sweet v. Parsley, but it raises some interesting points of law which perhaps go, as the Lord Chancellor said, a little beyond the terms of this debate. In again thanking everyone who has taken part in the debate, may I, as is customary, ask leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.