§ 3.35 p.m.
THE EARL OF ARRAN
My Lords, I beg to move that this Bill be now read a second time. I have set myself a formidable task. I am introducing a Bill of Rights, and if it, or whatever issues from it, were passed into law it would be the first Bill of Rights since 1689. I am almost entirely unqualified to undertake this task. I am no constitutional lawyer; I am no advocate. My only justification—and it might be regarded as the best justification that a man can have—is that I am an individual and jealous of my rights and of the rights of other individuals, who, I believe, are in danger of losing them.
First, what of the Bill itself? It is based on the Canadian Bill of Rights, and leave to introduce it was sought, unsuccessfully, by Lord Lambton in another place. I do not propose to weary your Lordships by taking you through all the clauses. This is, after all, a Second Reading. Let me concentrate on the matters that seem to be most important. All of them, of course, matter, but I think that some are more or less non-controversial.
Your Lordships will notice that I have divided Part I, Clause 1, into those freedoms which are, I believe, unchallengeable—that is to say, paragraphs (a), (b) and (c)—and have added the qualifying 244 words, "subject to law", to those provisions which need to be qualified. For instance, "freedom of expression" sounds very fine, but in view of the Race Relations Act, necessary as it was, one cannot express oneself freely on this subject; nor can one speak one's mind so freely as to cause a breach of the peace. Then take Clause 1(h), which refers to the education of children. There is a whole complex of laws relating to children, including one, I imagine, which forbids you to beat your children regularly after meals, although that might come under Clause 2(b), which forbids "cruel and unusual" punishment. That, incidentally, was a clause in the 1689 Bill of Rights. These are just a few examples.
Clause 2 spells them out in more detail, though not I hope too much. I thought, with respect, that the Macdonald Bill, which we discussed in the debate of the noble Lord, Lord Wade, went too far. It contained clauses which were highly contentious. I have limited myself to those things which need to be said clearly and simply. The only provision to which I think exception can reasonably be taken is paragraph (m) of Clause 2, which says that no law shall be applied so as to:impose retrospective taxation of income or capital, or impose rates of taxation higher than those … legally in force prior to the purported retrospective impositionThis is my opinion, and I stick to it.
Next—and, as it were, out of context—I would draw Lordships' attention to Part II, Clause 7, which was not in the Lambton Bill. The noble and learned Lord the Lord Chancellor spoke in his pamphlet, New Charter, of a possible State of Emergency. It is indeed most relevant. I believe that the worst thing that Hitler ever did to us was to cause us to suspend habeas corpus through the odious instrument known as "18B". But one must fight a ruthless enemy with his own weapons.
My Lords, these are the bare bones and I am aware that there are serious omissions. I refer, of course, to intrusion into privacy, to citizenship and to the lack of reference to duties as well as to rights. I hope noble Lords will not think I am so foolish as to overlook them, nor so cowardly as to duck them. I will take intrusion into privacy first. It is very much in the public mind at the 245 moment, and indeed the noble Lord, Lord Mancroft, in 1960, with his customary prescience, introduced a Bill on the right of privacy which got a Second Reading. That was before the computers got into their stride. The dangers are far greater now. Last year the noble Lord, Lord Windlesham, introduced an important debate on this subject, which your Lordships will recall. The noble Lord, Lord Ritchie-Calder, has repeatedly warned us of the possibilities. I have not mentioned intrusion into privacy, for the good and, I think, insurmountable, reason that this subject is under discussion at the moment by the Younger Committee, and I am sure we should await its recommendations. I am inclined to think that the matter is so complex and potentially so controversial that it could well constitute the substance of a separate Bill. Certainly a failure to act in one way or another in this matter is to me totally inconceivable.
Next, there is another omission—citizenship; and here I am being careful because I fear to trespass into the field of political controversy. I do not know whether the Government are contemplating legislation or, if so, what form it will take. There is the question of the Kenyan-Asians, for example, which is ever with us. Let me not wreck my Bill by trying to anticipate. Last, there are duties. I wrote to the most reverend Primate the Archbishop of Canterbury and asked for his views. He answered forthrightly that, for a Christian, rights also involve duties. I was struck by this argument, which of course also applies to any responsible person of any faith or non-faith, so I asked the right reverend Prelate the Bishop of Chichester to speak on this point, which he has very kindly agreed to do. Personally, I should have thought that for a Christian, at any rate, these duties were made clear in one of the oldest books in the world, the Bible, in the form of the Ten Commandments, though these tell you what you should not do rather than what you should do.
Now, my Lords, perhaps we may think what effect, if any, this Bill will have. I think we should not concern ourselves too much with points of detail. The Bill itself will not be before your Lordships again. I am hoping that another and a better Bill will come to your Lordships in the months or years to come. Last of all there remains Clause 3, the preliminary 246 examination of legislation by the Parliamentary Commissioner. I will not mention it at this stage; it is the nub of the Bill and I shall refer to it later.
Now may I speak on the principles on which I have introduced the Bill. First, I regard this—and I hope others may feel the same—as a non-Party political issue. In the words of the noble and learned Lord the Lord Chancellor when in office, as reported in the Guardian:Constitutional reform should be done if possible through consensus of politics".I agree. If Parliamentary supremacy is to be diminished it can be diminished only by Parliament itself, and therefore it is proper that any Bill of Rights should start in Parliament. Furthermore, there is the danger that any Bill of Rights passed with the support of one Party alone might easily be repealed by a subsequent Government. For myself, I speak from the Liberal Benches, and I am proud to do so, though I have never made a Party-political speech in my life, but I would have made exactly the same speech from any of the Benches. I hope your Lordships on all sides will show the same objectivity.
True, the Government must take the credit for introducing the phrase in the Queen's Speech:My Government will make it their special duty to protect the freedoms of the individual under the law and will examine ways in which they may be more effectively safeguarded.True, the noble and learned Lord the Lord Chancellor voted in another place with four other Cabinet Ministers—the Home Secretary, the Foreign Secretary, the Lord President of the Council and the Minister of Education—in favour of introducing Lord Lambton's Bill, which is in fact almost identical with the Bill under discussion. Yes, my Lords, the noble and learned Lord the Lord Chancellor has indeed set his heart on a Bill of Rights. But there is no Party political credit or debit to be gained from this Bill. Any credit will go to Parliament itself for admitting that it is in danger of becoming tyrannical and for voluntarily imposing checks and balances on its own supremacy. One further point. I do not myself believe that any one political Party has a monopoly of care. My Lords, we all of us care. Each Party claims to be the Party which cares most—especially at election times. But surely we all care. 247 Our approaches may be, and indeed are, different, but in the last resort we really all want the same thing.
Now on the basis of this argument, can we together look at these things and see whether they have our approval? There are in fact three possibilities open to us this afternoon. The first is to decide forthwith that a Bill of Rights is unnecessary. The second is that we need a Bill and need one now. The third possibility is to ascertain by Parliamentary examination whether we need a Bill, possibly based on the framework of my own Bill but subject to considerable revision. This is where we come straightway to my second Motion before your Lordships' House to-day, which of course I can move only if your Lordships give my Bill a Second Reading and thereby show that you are in favour of the principle of taking a closer look at these things. That Motion is to appoint a Select Committee of this House—I should have preferred it to be a Committee of both Houses, but there are dangers here, particularly in the matter of delay—to examine these things and take evidence from all who wish to give it: from the political Parties, the freedom organisations, the Churches, the lawyers, the unions and the representatives of other countries which have a Bill of Rights or some form of written Constitution.
Now for the arguments in favour of a Bill of Rights. Put quite simply, they are these. We have to-day a completely new style of life. Who will deny it? It is faster; it tends to be more authoritarian; it is more mechanised. What has stood us in such good stead over the past centuries is, in my submission, no longer applicable to-day. In terms of law we live in a period of almost continuous legislation, direct or subordinate. Over the last five years an average of a thousand pages have been added to the Statute Book each year, and 5,800 pages of Statutory Orders were added last year alone. My Lords, I am not saying that any of it was bad or unnecessary. I am simply saying that through the cumulative effect of this unceasing stream of laws, which few, if anyone, have the time to read, our freedoms as individuals are being worn away as surely as water slowly wears away a stone. Is it not time at least to inquire into the results 248 of this erosion and see whether we can do anything about it?
In 1689 Parliament decided to state its powers in relation to the Crown. In 1970 I believe that the individual, or the person, or whatever we like to call him or her, should state his or her own personal basic rights in relation to Parliament, whose powers have increased steadily with the result that the balance has been upset. We should not be frightened of listing the basic rights of the person, or, if you like, as it is called, codifying them. In fact the 1689 Bill of Rights worked remarkably well. No attempt, so far as I know, was made to repeal it. It is still of great relevance to-day, and indeed one at least of its clauses is still mandatory: the Crown may not levy an army unless with the annual approval of Parliament, and this approval still needs to be given. Parliamentary privilege, an important thing to us all, stems from this Statute. So does the idea of free elections, Magna Charta, though much of it has fallen into desuetude, produced the principles of habeas corpus, the keystone of our liberties, and trial by jury.
Now I come to the modalities of the 1970 Bill of Rights. I favour a Select Committee, and strongly, because, as I have said, if Parliament's sovereignty is to be questioned it can only be questioned by Parliament itself. Such a body as, say, the Crowther Commission on the Constitution, whose terms of reference are to examine the functions of the central Legislature and Government in relation to the counties, nations and regions of the United Kingdom, or even a committee of jurists like the Law Commission, do not fulfil this condition. They are not part of Parliament; a Select Committee is. Yes, my Lords, the obvious, indeed to me the only, answer, is a Select Committee which would in due course report back to your Lordships' House for our Committee stage. It would report and recommend what it thought best. It may come down in favour of what The Times calls a weak Bill, one which merely codifies and amplifies what is already thought to be law; or a strong Bill which would include fortification, or in some way—this word is used by The Times—entrenchment.
I ask your Lordships to look at these two matters together, the Bill and my subsequent Motion. You may like the 249 Bill, or parts of the Bill or none of the Bill, but I also ask you, in considering it, to look not only at its weaknesses, which are many, but rather as an instrument, a vehicle, for taking this great matter a further stage on its journey. It would be a point of departure, something for the Select Committee to work upon. I hope your Lordships will forgive this, for me, very long preamble. I felt it necessary to make these points in advance. They are, once again, first, that I hope that this Bill will be regarded as a purely non-Party political affair to be agreed by Parliament as a whole; and, second, that I should be grateful if your Lordships will look at my Bill and the proposal to set up a Select Committee together. The two Motions on the Order Paper are essentially interdependent one upon the other. They are, if you like, a package deal.
I promise that I shall not be long now. I turn to the historical aspect, the evolution of our constitutional tradition. It looks as though every few hundred years or so we find ourselves oppressed by a new tyrant, not necessarily a malevolent despot as in other countries; and he or it in turns needs to be reminded that he or it can go too far. The tyrant this time is Parliament. I prefer this word to the word "Government", though it is, of course, the Government or the Executive through the Whips which gives the orders; but it is Parliament which enacts, with approval or under protest. As the Lord Chancellor said in his personal contribution to the pamphlet New Charter:For consider, Parliament has virtually become 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.And to the Observer newspaper, he said, as Lord Chancellor:Parliament is constantly making mistakes and could, in theory, become the most oppressive instrument in the world. Sometimes a stage comes when things cannot be left alone any longer. Very often when that stage is reached the most conservatively-minded person turns out to be the most radical in practice.I am sorry to quote so much from the noble and learned Lord, but he puts these things so much better than I could.
The noble Lord, Lord Shawcross, who unfortunately has had to go to Geneva, is reported as describing Parliament as 250 "simply dictatorship in a disguised form". He wrote in an annual report of Justice:A new Bill of Rights would be a new Magna Charta for the little man—or little woman, incidentally—ensuring his right not to be pushed around, and would provide an example to foreign countries and an assurance that we were not pressing upon them constitutional safeguards that we were not prepared to accept for ourselves.A telling argument, my Lords. We hand out Constitutions like Christmas presents, but what is good enough for those countries is apparently not good enough for ourselves.
In the absence of a modern Bill of Rights, who are the watchdogs of our freedoms? Who are the ones who kick up a fuss? I would say the Back-Benchers, among whom I am proud to number myself, and the Press. But are these safeguards sufficient, and do the Press especially show up the injustices? They do so largely when they are newsworthy. I work for the Press and I know that. Otherwise, they do not. I repeat, are these safeguards sufficient? Do we not also need a Statute to protect our individual freedoms now and henceforth?
Here I come to what, the other clauses excluded, I regard as the nub of the Bill. It is Clause 3, which says:The Parliamentary Commissioner shall examine every Bill introduced in or Statutory Instrument laid before either House of Parliament, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part of this Act, and he shall report any such inconsistency to both Houses at the first convenient opportunity.This paragraph, or one similar to it,—not of the Ombudsman, but on the principle—found the approval of the noble and learned Lord, Lord Gardiner, who generally opposed the idea of a Bill of Rights and, I suspect, still does, because as he said on Lord Wade's Bill that it would either restate what was already law or be in such general terms as to make it impossible to forecast the effects. But, I repeat, he did approve of this one proposal in Lord Lambton's Bill, and I hope he will still approve. The only difference is that I have substituted the Ombudsman for one of the Law Officers. The Law Officers are drawn from the ranks of the Party in office, however they may struggle to remain impartial, and the only man who is universally 251 regarded as personifying perfect impartiality, if such a thing exists, is the Ombudsman. But it would be up to the Select Committee to recommend on this point. They could come down, as in Lord Lambton's Bill, on one of the Law Officers of the Crown.
Perhaps a word about the Ombudsman might not come amiss. I think the Ombudsman has proved a success. As the noble and learned Lord, Lord Gardiner pointed out, in 10 per cent. of the cases the Commissioner has examined over the past two years he has found that there has been a maladministration. That figure alone, to my mind, has justified the existence of his office. I am personally in favour of extending the practice and appointing other Ombudsmen in the Provinces, in the regions. But the Bill I propose would in no way conflict with the work of the Parliamentary Commissioner, although it would involve him in extra duties.
The noble and learned Lord, Lord Gardiner, who I suspect is still not in favour of a Bill of Rights, said in Lord Wade's debate that from Canada, the last major country to be given a Bill of Rights, he had not heard that it had had any practical effect on any cases the court had decided. Since then it has been shown that the Bill is not a dead letter. There has been a most interesting case in which the Bill of Rights was cited, that of Regina v. Drybones, an Indian. I will not bother your Lordships with the details, but that case shows at least that the Canadian Bill of Rights is far from being a dead letter.
My Lords, I have done. If I have wearied you, it is because I had to. I have put the bare facts first and the indications subsequently. I hope that I have succeeded in clearing away to some extent the undergrowth which surrounds the issue, and in bringing into sharp relief the points which are uppermost I shall have succeeded at least in part. At the risk of over-simplification, I suggest that your Lordships have to decide two things: first, whether you think there is a case for appointing a Select Committee of this House to examine the need for a Bill of Rights—it could even be a completely new Bill—and the form which it takes. Secondly—though of course this is first on the agenda for discussion—that the Bill, with all its faults, is a 252 reasonable instrument for placing before such a Select Committee as a framework upon which to build. I hope that, if I have not persuaded your Lordships to look indulgently on my Bill, you may yet not think it so inadequate as to be unworthy of further examination by the appropriate body which, to my mind, can only be a Select Committee of this House.
Meanwhile, I ask your Lordships to remember that this is a Bill of Rights for the individual. I ask you to look at these things as individual men and women. If this Bill should be granted a Second Reading, I further ask you not to go away because I shall immediately move my second Motion. My Lords, I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Earl of Arran.)
§ 4.3 p.m.
§ THE LORD CHANCELLOR
My Lords, until I saw the proposed list of speakers for this afternoon it had been my belief that I was to wind up this debate, and I am not at all sure that that would not have been the wiser course for a member of the Government to pursue. But when I put this point to those who are wiser than myself they pressed upon me the opinion that if a member of the Government were not to reply immediately, with some indications of the attitude of the Government towards this measure, it would be construed as a lack of courtesy towards the House; and naturally enough, if the argument is put in this way, there can be only one answer to it. If, therefore, to some extent, despite the fact that I have done my best to prepare myself for this task, I think aloud, I hope that the House will forgive me. And should I seek leave at a later time to reply to arguments put by subsequent speakers, perhaps again the House may be indulgent enough to give me that leave.
My Lords, the presence of some seventeen names of Peers who have signified their desire to take part in this debate is quite sufficient justification for the noble Earl's decision to bring forward his Bill. It signifies beyond a doubt that this is a subject which the House wishes to discuss, and therefore it would ill-behove me if in criticising the Bill, as I shall probably feel it my duty to do, I were to 253 take a captious or critical view of any of its details. This would be quite wrong.
I know of no political Party or responsible body of opinion which is not genuinely concerned about the impact of modern life upon the individual. This is not simply a question of legal rights. It is sometimes a question of noise; of environment; of the pressure; of the great size of organisations; of pace; of economic pressures. These things are really the stuff of which modern politics is made. Therefore it would ill-become me if, even inadvertently, I seemed to be unsympathetic to what I may call the ideas behind the Bill. Indeed, it would be impossible for me to adopt such an attitude even if (which is not the case) I were to have that view, because, as the noble Earl has reminded the House, this is a subject upon which, when in Opposition, I both wrote and spoke a certain amount. The noble Earl has kindly quoted passages from what I said from time to time.
It is also fair to say to the noble Earl (and I hope it is no great confession of weakness on my part), that from time to time my views on this subject have changed. Had I been speaking on it, say, ten years ago, I think I should have dismissed the idea of a Bill of Rights wholly out of hand. I will give the House later the reasons that I would then have adduced, because I think they are material to what we are to discuss this afternoon. I do not take that view now, and again I will try to tell the House the sort of reasoning which has led my opinion on this subject to develop.
For a moment or two before I examine that matter, I should like to take up the point at which the noble Earl left off, because there was one point in his speech which took me completely by surprise. It was his apparent belief—which I do not share, but on which of course I stand to be corrected, since I speak without preparation on the subject and in the presence of those who are much more familiar with the facts of life about the procedure of this House than I can hope to be at present—that if the Bill were given a Second Reading and then sent to a Select Committee, that Select Committee could operate, as it were, as the Select Committees on Private Bills sometimes do or, alternatively, as a Select Committee of either House of Parliament always does, by examining the subject at large 254 and reporting to the House in general terms.
As I understand it, that is a wholly erroneous view of what would happen if the two Motions in the noble Earl's name were carried. If the House passes the Second Reading of a Bill it is, as I understand it, because the House accepts its general principle; and if after Second Reading the House then proceeds to remit the Bill to a Select Committee, again as I understand it, there is no difference, except in size and place, between the procedure which takes place before that Select Committee and the procedure which would take place if the Bill had gone on in the ordinary way through its Committee stage on the Floor of the House: before a Committee of the Whole House. In other words, if what the noble Earl would really like this House to do is to have a general inquiry on the subject of individual rights and the possibility of legislating to protect them, then, unless this Bill is in itself a suitable instrument, he ought to put down a Motion for a Select Committee, and not to move that this Bill be read a second time and that it be remitted to a Select Committee of the House. Because if that happens, my Lords, the only thing that can take place is that the Chairman of Committees, or the Chairman in charge of the Select Committee, would put the Question, That clause after clause of the Bill shall stand part, or, if Amendments are moved to Clause 1, page 1, line so-and-so, "for 'and' insert 'or'", to discuss the Amendments.
With respect to the noble Earl, and subject to the better opinion of the House, I think that the latter part of what the noble Earl said is really based on a misapprehension. If I am wrong, I stand to be corrected, because I put this view forward without having had the opportunity of consulting others who are wiser than myself.
THE EARL OF ARRAN
My Lords, would the noble and learned Lord prefer, or would it be more constitutional, that a Select Committee should consider the subject in vacuo, rather than a document which has been laid before it? Can a Select Committee just deliberate on a subject? Surely it must have something to work on as a point of departure?
§ THE LORD CHANCELLOR
My Lords, again as I understand it, the point of departure which a general Select Committee, as distinct from what the noble Earl is proposing, would have, would be the evidence which it sees fit to examine. It would call for witnesses either to send in a written memorandum or to give oral evidence. The noble Earl no doubt would be asked to give his views, and the various societies would be asked to give their views; and then the Select Committee would report to this House as to the conclusions it had formed upon that evidence. As I understand it, if a Bill receives a Second Reading the only thing which the Committee can consider is the Bill, in the ordinary way in which Parliamentary Committees do consider Bills, and which is very familiar to all noble Lords in this House. It is important to stress this at the outset of my speech because it goes to the root of some of the things that the noble Earl was saying, or hoping to achieve by his activity.
That leads me to the Bill itself, and to the general considerations for and against such a Bill. The noble Earl was perfectly right in saying that not only I but, I think, three or four prominent members of the present Cabinet unsuccessfully voted in favour of giving leave for Lord Lambton to introduce a Bill of which the Long Title was similar to this. The Motion was defeated in another place, and so the Bill never saw the light of day. In fact, I do not know what it would have contained had it been introduced into another place. But the considerations which lead a Member of Parliament, of either House, to vote in favour of a First Reading, or of "leave to introduce" (to use the terminology of the other place in relation to this particular procedure), are wholly different from the criteria that have to be applied to a Bill, after it has been introduced and read a first time, in a Second Reading debate.
I must tell the noble Earl, sadly but I am afraid without doubt, that the only conclusion I can reach is that this Bill will not do. It is my duty to advise the House as to what I honestly think; I know the degree of my own fallibility, and I know that after thirty years of public life one can be very wrong about things. Nevertheless, I must tell the House, quite candidly, that I do not think this Bill will do. Leaving aside any 256 possible captious criticism about its details, or the draftsmanship, I do not think that it can be made to do by the Committee procedure. I will tell the House why I have come to that conclusion.
The first thing I should like to do, therefore, is to describe what had been, and what to some extent still are, my basic difficulties about accepting a Bill of Rights of any kind, and then to consider how far those difficulties have been overcome by the present proposals. My difficulties were two in general character. In the first place, I thought—and up to a point still think—that it is an anachronism in the 20th century to talk in terms of legislation of this sort. The second objection is a more technical one: that under the British Constitution as it has developed there is a logical contradiction involved in legislation of this kind. There is something in both these criticisms which this Bill has not succeeded in removing.
Of course general declarations exist in our Constitution and on our Statute Book. Magna Charta, in its 1297 version, is still partly on the Statute Book. The Petition of Right, of, I think, 1628; the Bill of Rights of 1688 or 1689; the Act of Settlement of 1702—these are all fundamental constitutional Statutes. But I would say that they all reflect basically an unsophisticated state of the law. They represent less a system of constitutional law in which rights can be enforced, than the landmarks in the struggle which brought such a system into being. They are landmarks in the struggle between oppression and the rule of law, rather than an effective mechanism for enforcing the rule of law in the latter part of the 20th century.
Take, for instance, the most general and acknowledged rights. In my experience (and I can see sitting on the Cross Benches a most formidable array of legal talent to dispute the subject with me), rights are never wholly absolute, and never wholly unqualified. There are circumstances, for instance, in which even life can be taken. There is not even an absolute right to life as is postulated by the first clause, and I think, the first line of this Bill. The captain of a ship may have to close a bulkhead and entomb members of his crew. That certainly happens in war, and I think sometimes 257 happens in peace. If anyone chooses to compare the text of this Bill with, for instance, the European Convention on Human Rights (to which I will revert at a later stage, and which is of great importance in considering this Bill), I think he will see that even the right to life is not stated in the bald and unqualified form in which it appears in the noble Earl's draft. Quisling, and I think the Nuremberg criminals, lost their own lives under what was, at least arguably, retrospective legislation.
The purpose of a Bill of Rights, according to this line of argument, is achieved when the principles underlying it come to be so generally accepted that they have become articulated and applied throughout the general corpus of legislation. The right to life, for instance, becomes, among other things, prosaically but valuably enough, the Fatal Accidents Act of 1846, Lord Campbell's Act, by which the widow obtains damages if her husband is killed as a result of a breach of statutory duty or negligence. The right to trade articulates itself into the Companies Acts whereby people are entitled to trade without endangering the whole of their possessions. The right to associate becomes the Trade Unions Act of 1871. "Thou shalt love thy neighbour" becomes, among other things, the employer's duty to fence machinery which is dangerous—or the farmer's duty, if the House passes the legislation, to take care to keep his cattle off the highway. "Thou shall not commit adultery" becomes a decree nisi for divorce, with appropriate orders for custody, maintenance, and costs.
I am bound to say I am not put out by the fact that in international law we have subscribed to the Universal Declaration on Human Rights of 1948 or, even more specifically and to my mind much more importantly, to the European Convention, which embodies the most important rights in the Universal Declaration.
In my humble submission, international law is precisely at that stage at present in which such general declarations are required to give general guidance of what is acceptable conduct in international affairs. Our own lifetimes give numerous and decisive examples of the need of such general declarations in this field. Moreover, the European Convention is, 258 I should have thought, a general argument against this Bill and not for it, because it provides machinery for enforcement independent of the Government of this country and Parliament, and sometimes embarrassing, or potentially embarrassing, to both. Nor, on the whole, am I much put out by the fact that almost every Constitution which we have conferred upon newly enfranchised members of the Commonwealth, to which the noble Earl referred specifically—there have been a considerable number since the war—have contained some declaration of fundamental rights not dissimilar from those embodied in the noble Earl's Bill, although I would say that they were probably more workmanlike than the present measure before the House.
The reason for my belief in these Bills brings me to the second objection to legislation of this character which I have always felt; that is, that in the context of the British Constitution as it has developed a Bill of this nature involves a logical contradiction. Obviously, when a nation begins with a successful war of independence—the classic example, of course, being the United States of America—or with a formal bestowal of sovereignty, as did Canada after the Durham Reforms in, I think, 1867, it becomes reasonable at that stage to begin with a statement of the principles which one means to follow. In some circumstances, though not I think in all, it is right to entrench these, especially where the new State is intrinsically not homogeneous and there is danger of oppression by a majority over a minority. Moreover where as in many cases, there are a number of different communities or different geographical territories to be incorporated within a new State, a written Constitution on such occasions is something of a necessity.
I use the expression "written Constitution" in the sense in which it is generally understood, although, as Lord Birkenhead once pointed out in a case in which he was sitting in this House judicially as Lord Chancellor, the phrase is in fact a misnomer. He coined the alternative phrase—and I should have preferred it, but for the fact that the other is better understood—"a controlled Constitution" to indicate that what is really the distinguishing feature in such Constitutions 259 is not writing, but the power of the courts—that is to say, of a court like the Supreme Court or of the general body of courts—or some other body, to act as referee and to declare some acts of the Executive or of the Legislature ultra vires and void. This right is exercised habitually by the American Supreme Court over Congress and the President, and it may be that we need a controlled Constitution in this sense.
Something of what I have written, to which the noble Earl kindly referred, indicates that before I took office I was making a tentative approach towards this view. But, as I think I have always maintained, if that were done it would have to be by an act of Government supported, I would hope, by all Parties, taken deliberately and after a prolonged period of inquiry, consultation and debate. The particular mechanism which I suggested was a Constitutional Conference, which was to some extent overtaken over part of the field by the Crowther Commission. But this Bill is not the appropriate vehicle, and could not be turned into the appropriate vehicle, for turning the British Constitution into a written Constitution in the sense in which I have used the term.
As it is, we in Britain have no such fundamental power in the courts; or, rather, to put the matter rather more precisely, the courts possess this power over the Executive, they possess this power over local authorities and their officers, and they possess this power over courts of inferior jurisdiction, but they do not—as yet, at any rate—possess such power over Acts of Parliament as such. Nor is it easy to see, although it may be possible to suggest means, how such a power can under our Constitution easily be conferred upon them.
For the logical difficulty can now be stated. There are two fundamental principles of our Constitution as stated in the classic work of Dicey. The first is the rule of law, but the second is the sovereignty of Parliament. The Queen in Parliament is omnipotent. The Queen in Parliament is sovereign in the absolute sense. This is a fundamental doctrine of the British Constitution. It is not, therefore, a question of should not; it logically cannot be amended simply by one Private Member's Bill, because if 260 we pass this Bill or any other Bill to-day, in whatever terms, however well drafted, it can be repealed or amended to-morrow or the day after or next year or at any other time. And if a later Bill be passed which is inconsistent with the general principles of a Bill of Rights, according to ordinary rules of construction, the effect must be that the later Act amends the earlier Act so far as is necessary to give them both validity. There is no elaborate ritual known to us, as yet, at any rate, as in countries with controlled Constitutions by which alone constitutional amendments are made.
Whatever else is true about this Bill, it makes no attempt to grapple with what seem to me to be the two fundamental questions; and as both raise fundamental difficulties it is obvious that a criticism which is based on them becomes a fundamental criticism, and not, I hope, a captious criticism or a criticism dealing with the detail of the Bill or with the way certain phrases are put. In order that I may be absolutely candid with the House—I said that up to a point I have changed my mind—I should like, if it is not troubling the House too much, to say what has led me to alter my opinion from the rather rigid view which I have just been stating.
Two sets of circumstances, neither of them recognised by the present Bill and neither of which the present Bill does much to assist, led me to change my mind. The first is—and I published this in Opposition—that I thought the temporary majority in the House of Commons is far too capable of converting itself, even if it never does so, into an instrument of oppression in modern circumstances if its powers are to be wholly unlimited and unquestioned. Apart from this House (which with its present constitution unreformed, or not further reformed, might well turn out in practice to be a broken reed) the House of Commons has power even to prolong its own existence. I doubt whether any other legislative Chamber in the world is possessed of so much power.
The second set of circumstances—again I may be wrong—is that it seems to me, after 20 years' experience since the war, that this country is hopelessly over-centralised. There is nothing here between Whitehall and the county or the county borough. There is no intermediate stage, 261 and in this we are practically alone among civilised nations. No country of comparable size or importance owns areas of local authority so small or politically so meaningless, since no county borough even possesses its own hinterland and no county centres upon its county town. This was the question which the Redcliffe-Maud Commission discussed at much greater length and which I hope will be the subject of some kind of determination or discussion by Parliament during its present life.
Now if we ask ourselves questions so diverse as, "What is the reality, apart from emotion or sentiment, behind, for instance, Scots or Welsh nationalism?", or, "Why can we not devise a system of local taxation less unwieldy and less unjust than the rates, when other countries do so?", or, "Why can we not restore more effective autonomy to local bodies?", or, "Why can we not solve the problem of a rational Second Chumber?"—if I may come nearer home—we are driven back again and again to the fact that our centralised system is to some extent an elective dictatorship based upon St. Stephen's and upon Whitehall. Even the danger of a General Election, if I may venture upon this thorny topic, is a little smaller than it used to be in my youth, when Mr. Baldwin dashed to the country, in 1923, on a hunch about food taxes. With the polls to guide him and the prerogative of Dissolution at his command, a modern Prime Minister does not gamble, like Mr. Baldwin, with the uncertainties of a popular vote. Within limits, and until at any rate the last General Election—a painful topic upon which I do not intend to expatiate—the Prime Minister is assumed to know. Until that Election on June 18 only two sitting Governments had been beaten since 1945, and then each time by fewer than 10 seats. Even the last Election, to quote a Wellingtonian phrase, was perhaps too close a run thing to be altogether comfortable for anybody.
I therefore concluded that, if it were possible it might be desirable to achieve a Constitutional Statute. But such a Statute would not contain many of the items appearing in the present Bill, and it would contain many others not present in it. I was aiming at a different target, and I was employing weapons which I suspect to be a little more sophisticated.
262 That brings me now to the weaknesses of the Bill in its present form—not that I want to take fractious advantage of it, which I think would be both churlish and ungenerous, because the Bill reflects, though not probably from the noble Earl's own pen, a great deal of hard work and honest thought.
THE EARL OF ARRAN
My Lords, perhaps I may interrupt the noble and learned Lord to say that it represents the thinking of the Government of Canada.
§ THE LORD CHANCELLOR
I think not, my Lords, for reasons which I will give, because in fact the Government of Canada, at any rate, attempted to get round the difficulty of the sovereignty of Parliament—an attempt which has been deliberately omitted from the structure of the present Bill—and their measure I think did not contain what the noble Earl himself has described as the nub of this Bill, which is the Ombudsman's or Parliamentary Commissioner's functions. But as the noble Earl has referred to the Canadian Statute, I should like to say this to the noble Earl about it. It was a brainchild of Mr. Diefenbaker's Government. He in fact showed it to me when I was visiting Ottawa before it came through, and I do not therefore want to say anything ungenerous about it, but I thought at the time, and I think now, that it is virtually a dead letter.
It is true that in one case since it was enacted some ten years ago—the case with the remarkable and rather endearing name of The Queen v. Drybones, to which the noble Earl referred—it was operative, but I should like to tell your Lordships what The Queen v. Drybones decided. Drybones was a Red Indian, and Drybones got drunk outside an Indian Reserve. He was penalised under a Statute which said that Red Indians should not get drunk outside Indian Reserves, and he pleaded, with reason and justice, the Bill of Rights. It was decided that he was able to do so, and one is glad to think that in Canada he was thereby saved by Mr. Diefenbaker's foresight. But such a Statute is wholly unnecessary in this country because we have not got Indian Reserves, and if we had we would not make it illegal to be drunk outside them. In any event, the present race relations legislation would make it very difficult for us to do so. 263 So I do not think that the Canadian Statute is quite as good a precedent as the noble Earl seems to think.
Now this present Bill begins with a Preamble. Normally, I do not read the Preambles to Bills, and I dare say I am not alone in that. Francis Bacon, my predecessor on the Woolsack, as in many other things in advance of his time, condemned Preambles to Bills, and so did Lord Halsbury in the First Edition of his work on the Laws of England. Modern legislation has largely abandoned Preambles except in a stereotyped and formalised form, but this Preamble clearly indicates the target at which the present Bill is aimed, and it delineates what lawyers call the mischief of the Bill. It puts the target as follows: first, the totality of laws and legislative documents—Statutory Instruments and the like; second, the extended jurisdiction and powers of tribunals; third, the growth of rules of procedure before tribunals; and, fourth, the inconvenience of review procedures—a target which I do not wholly understand.
I have two criticisms of this target as recited in the Preamble, and in my judgment they are both of them fatal to the Bill. The first is that if this were the mischief at which the Bill is aiming it is clearly aiming at the wrong target altogether. The second, and even more extraordinary, is that even if these four points, or any of them, were the right target to aim at, the Bill makes no attempt whatever to hit that target. None of the evils named is grappled with at all by this Bill. It is not a Bill designed, for instance, to reduce the totality of legislation or legislative documents, or the extended powers of tribunals: it is a Bill aimed at the limitation of the sovereignty of Parliament—nothing short of it. It is, in short, a political manifesto, and not a successful attempt at a workmanlike piece of legislation. Of course, in using the phrase "a political manifesto" I do not mean to impute to the noble Earl in the least—and I should be grossly unjust if I did—any Party political motive in putting it forward.
§ THE LORD CHANCELLOR
No; nor even to the Dominion of Canada, although I am bound to say that the 264 Conservative Government of that Dominion which introduced it was not above political motivations—nor, indeed, I think, is any Administration which happens to command the support of a popular electorate. But at any rate that is what I feel it is.
Now may I examine the target aimed at a little more closely? No doubt it is true—indeed, it is trite—that, with the increased population of these Islands and with the vastly greater complexity of modern life, the totality of laws and legislative documents has become infinitely greater and is the subject of considerable apprehension. To some extent I imagine that both sides of the House would agree that it had to be; there was no way of avoiding it. To some extent I might make a Party political point and say that this Government try to suggest a remedy by not doing quite so much and by withdrawing from some spheres of government. But, either way, this is a question of marginal argument. We have stated a problem, but the Bill states the problem and makes no attempt to solve it. You do not solve the problem of the complexity of modern life, with its multiplicity of rules and regulations, by restating fundamental rights about which everybody is agreed. The reaffirmation of fundamental rights in general terms is a legitimate political response to tyranny, but not a legislative answer to complexity.
My Lords, take the second, third or fourth of these targets, one of which—I think the second—is tribunals. Tribunals have arisen, not to diminish people's rights but to protect them, and sometimes even to confer them. That is the political fact. They may or may not have been effective to do so. The Council on Tribunals, commanded by the noble Baroness, Lady Burton of Coventry, is largely there to see that tribunals are effective. But tribunals, like all other human institutions, are not always as effective as they are intended to be. But what they are—and this is the point I am making—is part of the healthy human response made by society to protect human rights against the growing complexity of the law. They are part of the solution and not part of the problem. In the main, they are not examples of oppression; they are part of the response of humanity against the fear of oppression.
265 Although one wants in all proceedings to avoid unnecessary complexity, the object of rules and customs of procedure before tribunals, which is another of the targets aimed at, is not to deprive people of their rights but to prevent such things as an emotional speech, or an appeal to prejudice, or a suddenly sprung case from taking the other party by surprise, so depriving him of his rights. And may I say, in passing, since I see the noble and learned Lords on the Cross-Benches, that I think I am right in claiming for the courts that they have shown themselves increasingly alive to the problems raised and posed by the Bill. The development of the action for a declaration; the development of the procedure by way of prerogative writ, has brought within the ambit of the Court, and without any legislative act by Parliament, a number of activities which, when I first went to the Bar, I think most lawyers would have advised would have been wholly beyond their jurisdiction. So we—and by "we" I do not mean only Parliament, or the Government, or the Civil Service or the Ombudsman, but society as a whole—are aware of the problem; society is seeking to find its own legitimate answer to it through the various organs which it possesses.
I look at the first Part of the Bill simply as legislative proposals, and I ask the House to consider whether and to what extent they can be regarded as valid statements of principle, whether and to what extent they contain sufficient qualifications or exceptions, and whether and to what extent they could be helpfully or usefully enforced. The last of the three questions is not, I think, the least important. I should like for a moment in this connection to look at the structure of the Bill which is now in our hands.
Clause 1 contains a number of so-called general rights, fundamental rights. I think that they have been more simply stated, for instance, in the Americal Declaration of Independence; they may have been better stated as in the Universal Declaration of Human Rights in 1948, or in the European Convention to which we are parties. As the noble Earl has admitted, the corresponding duties and responsibilities are nowhere spelt out, the necessary qualifications and exceptions are nowhere made. In that respect the European Convention 266 is much better than the Bill, as anyone who compares the texts of the two will see. There is no doubt in my mind that the machinery in the European Convention is more effective than the Bill and renders it to some extent unnecessary.
THE EARL OF ARRAN
My Lords, may I for a moment interrupt the noble and learned Lord? Is it not a fact that although we have ratified most of the protocols of the European Convention, these things do not become law in this country unless they are enacted.
§ THE LORD CHANCELLOR
My Lords, it is not so much that they do not become the law of this country unless they are enacted: rather that someone who feels that he is being deprived by the law of this country, after having exhausted his judicial remedies, of these rights is enabled under the Convention to claim protection first of the Commission and then of the Court. It will not be beyond the knowledge of noble Lords that in fact this is going through the Commission at the present time in a very notable and publicised case, although it would be wholly improper of me to do more than refer to the fact.
My Lords, this brings me to Clause 2, which is the enforcement clause. The mechanism employed is to deprive the Queen in Parliament of sovereignty, no less. Even the Canadian Bill did not purport to do this, since it provides that the Canadian Parliament could legislate to the contrary. I must say, with due respect to the noble Earl, and with full recognition of his intentions, that I think it wholly undesirable that a fundamental change in the Constitution of this kind should be attempted by a Private Members' Bill, and it is wholly unlikely that a Government would attempt to do it without at any rate public consultation with various interests in the country, including the official Opposition Parties. What is even more absurd is that the attempt must be wholly unsuccessful for the reason which I have stated: that it can be repealed and amended at any time one likes.
The third clause, which is the only other clause that I need refer to, contains the reference to the Ombudsman. It will be remembered that the Ombudsman is not a lawyer. His office is not, in the 267 main, equipped with lawyers: his function is to detect ex post facto maladministration by Ministers and Government Departments. Yet here he is, in what is called the nub of the Bill, in Clause 3, entrusted with the task for which I would, with great respect to him, say he was unsuited. I entirely agree with what the noble Earl said in his favour; and I admit that I was wrong when I described him as—I forget what it was, but it was something very horrible—when he was introduced. At any rate, I publicly recant this description, whatever it may have been. But here in Clause 3 he is entrusted with the task to which I think he is unsuited and which might turn out to be incompatible with his present activities and which I suspect, even if he were technically equipped to do, he would find it impossible to perform: to wade through the immense mass of Government legislation and detect in advance which of all items impinged on the rights established and entrenched by Clause 2. I should have thought that the courts were the only possible bodies to achieve such a task. I have given my reasons for doubting whether either this Bill attempts it in that way or whether a Private Members' Bill could do so.
My Lords, I think there are one or two lessons that we can learn from this exercise. At the risk of extreme triteness, I start by reiterating that the price of liberty is eternal vigilance. Nothing can exempt the Court of Parliament, and more particularly the House of Commons, as the Grand Inquest of the nation, from performing its due tasks of scrutinising legislation in advance, repressing abuse and proposing remedies. This is not achieved easily, I believe, by the kind of Bill that we are discussing to-day; it is achieved only by a continuous process of debate and criticism—of men, of measures and of events—in relation to particular situations. Nothing can take the place of an independent Judiciary in declaring invalid acts done in excess of power or contrary to natural justice; and in recent years the Judiciary, in a series of outstanding decisions, both in the Court of Appeal and in your Lordships' House—and I am glad to notice the noble and learned Lord, Lord Denning, here because he is one of the Judges I would commend in this direction; 268 and the noble and learned Lords, Lord Reid, and Lord Morris of Borthy-Gest, are certainly two others—have shown themselves to be increasingly aware of the nature of these problems and of their peculiar responsibility towards it.
I accept that there is need for a new devolution of power from the centre. Lord Crowther's Commission, which is still sitting, and the Redcliffe-Maud Commission, which has reported, must deal with these issues. Although this is something that we shall debate, we believe that there is need for legislation in the field of tribunals and trade unions and family relations; in the invasion and definition of privacy, in the rights of individuals against powerful corporations or local authorities. All these, I hope, will come before the present Parliament; and for a general statement of our aims I would refer your Lordships first to our Election Manifesto and then to the Queen's Speech. I make these references, my Lords, not with a view to indicating that we are better than any other Party in this respect, but simply, to show that we, equally with other Parties, are dedicated to these principles which have made our country great. But I think that for a general reform of the Constitution, if, on the whole, public opinion thinks it is necessary, we must wait for a general discussion before an adequate conference: we cannot hope to do it by means of a Bill which has the limitations, and I believe the weaknesses, which I have endeavoured to show to your Lordships this afternoon.
THE EARL OF ARRAN
My Lords, before the noble and learned Lord sits down, may I ask him this question? He has much impressed me, and has to some extent confused me, being much better versed on these things and much cleverer than I am. May I ask this straight question? Is he against a Bill of Rights?
§ THE LORD CHANCELLOR
My Lords, I think that to answer that question I should first need to know what was in the Bill—it is rather like "a pig in a poke". I am against this one. I am not prepared to say that I should be against a constitutional Statute which gave us some of the features of a controlled Constitution—on the contrary. I have advocated it and I made two positive suggestions towards it. I thought it would be possible to allow Parliament to 269 enact by an Act of Parliament that a ritual phrase could be used before certain fundamental rights were infringed: an interpretation clause by which courts would assume that an Act of Parliament did not have that intention unless the ritual phrase appeared in its text. And thirdly, a self-denying ordinance by one or both of the Houses of Parliament whereby if the ritual phrase was used it might be treated as a hybrid Bill. But by the time I have said that, in about three sentences I hope, I hope to indicate both that I have given attention to the noble Earl's question and also that it raises issues rather beyond a plain, "Yes", or a plain, "No".
§ 4.51 p.m.
§ LORD GARDINER
My Lords, I shall not, I am sure, depress your Lordships if I say that I do not propose to occupy very much of your Lordships' time on the Second Reading of this Bill. The reason for that is not at all because I do not consider this an important subject; obviously it concerns the liberties of the citizen and is indeed a very important subject. But there are two reasons why I propose to speak only quite briefly. The first is this: I do not propose to offer my noble friends any advice as to how they should speak or, if there is a Division, how they should vote on this Bill. I think they are quite capable of deciding for themselves, as of course, also are noble Lords on the Cross-Benches.
There is a tendency for Governments, perhaps naturally, to want to take a view even on Private Members' Bills. I can remember a Bill introduced by my noble friend Lord Chorley, on which the Government of which I was a member thought it necessary to take a view. But if I may express a purely personal opinion, I think that both Governments and Oppositions ought perhaps to think twice before they oppose the Second Reading of a Private Member's Bill. We live in days when politicians are perhaps not as well regarded by the public as at one time they were and nothing leads the public to take a more cynical view of politicians than when they find them saying one thing in Opposition and another when in Government. The reason usually given for that is of course that the Government are responsible, whereas when you are in Opposition you are not responsible. The implication from that 270 is that where you find a Party—this is not in the least a Party political point; it applies to every Party—taking one view in Opposition and another in Government, obviously the view they take in Government is right and the view they take in Opposition is wrong. As a matter of fact, any examination of history will show that that is not necessarily so.
I am quite persuaded that the time will come when there will be general agreement that what my noble friend, Lord Gifford, said on his Visiting Forces Bill was right and that the contrary view was erroneous. Even within the last 24 hours we have seen a clear example. We shall all remember how my noble friend Lord Brockway battled almost alone over the issue of boy entrants to the Forces, and the Government, of which I was a member, did not feel able to change the position. We have to remember that there is great difficulty in a Minister who, unlike the noble and learned Lord, the Lord Chancellor, is not an expert in the affairs of his own Department overriding a very strong and unanimous Departmental view. But we were sympathetic. We did set up a Committee, the Committee has reported in terms substantially accepting Lord Brockway's view and the Government have now accepted it. That is only one of many examples of the view taken in Government not necessarily being the right view.
The second reason why I do not propose to speak at any length is that last year, on June 18, we had, as your Lordships will remember, a very interesting debate in this House on a Motion moved by the noble Lord, Lord Wade, on human rights, and we discussed the whole question of a Bill of Rights at considerable length. I explained why I was not a Bill of Rights man. I invited the House to consider the different Bills of Rights that we had seen—and we were aware then of the terms of the Bill which Lord Lambton had wanted to introduce—and why I did not consider that they were practicable. At the end of the debate I said: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."—[OFFICIAL REPORT, 18/6/69; col. 1092.]271 I am bound to say, my Lords, that I think the noble Earl's Bill is a considerable improvement on any I have seen before. I observe that nearly all of the objectional clauses in previous Bills to which I drew attention have disappeared. While I still could not bring myself to vote for the Second Reading of the Bill I would not propose to vote against it, because of the proposal that if the Second Reading is carried it should be sent to a Select Committee of your Lordships' House. I am a great admirer of Select Committees of your Lordships' House, having seen many of their Reports. Of course, the noble and learned Lord, the Lord Chancellor, is quite right in saying that what they would have to examine would be this Bill. But they could add to it, they could subtract from it, they could call evidence, they could get expert help; and I should think that if the House comes to the conclusion that the subject deserves further consideration it would be very much better considered by a Select Committee, which has all those advantages, than by a Committee of the whole of this House. I do not doubt that the Bill which would come back might in many respects, perhaps in all those to which the noble and learned Lord has referred, be changed. They might want to omit the Preamble.
I agree with him in thinking as hopeless the clause which provides that every future Bill is to be submitted to the Parliamentary Commissioner to see whether it conflicts with the Bill of Rights, but that is only because the Parliamentary Commissioner is the wrong man. I have the highest admiration for him but in every other country with which I am familiar which has an Ombudsman, the Ombudsman is a lawyer. It so happens that the Parliamentary Commissioner is not a lawyer. The question whether one Bill has overridden a basic Bill is a question of law. The Parliamentary Commissioner is not a lawyer and moreover he has not a single lawyer on his staff—I think that people do not realise that. When he wants to know what the law is he asks the Treasury Solicitor. I do not know: the Select Committee might say that the Treasury Solicitor would be the right man; or they might say that a small Joint Committee of both Houses should look at Bills, rather in the same way as we have a Special 272 Orders Committee to look at Special Orders. But those would be matters for the Select Committee to consider.
My Lords, I do not propose to say anything further because I explained at great length in the previous debate why I was not a Bill of Rights man. But I very much hope that if the House takes the view that this Bill ought to have a Second Reading, the subsequent Motion on the Order Paper will be carried.
§ 5.0 p.m.
§ LORD WADE
My Lords, I would at the outset thank my noble friend Lord Arran for moving the Second Reading of this Bill. He has made a very valuable contribution to the discussion of this subject of human rights. The fact that it has brought forth extremely thoughtful contributions from the noble and learned Lord who sits on the Woolsack and from the noble and learned Lord, Lord Gardiner, is evidence of the importance of the subject.
I believe that serious consideration should be given to the noble Lord's proposal for referring this Bill to a Select Committee after it receives a Second Reading. I would myself be content to see that procedure adopted. It would give an opportunity not only for the consideration of the clauses of the Bill but also, if important matters of principle have been discussed in the debate on Second Reading, allow clauses to be added to the Bill or maybe deleted from it. While it may well be true that the procedure outlined by the noble and learned Lord who sits on the Woolsack would be proper, I think it would diminish the opportunities of discussing important matters of principle.
I dealt with this subject of human rights somewhat fully in the debate which I opened, to which the noble and learned Lord, Lord Gardiner, referred, and I propose to make comparatively few comments this afternoon. I am sorry that the noble and learned Lord, Lord Gardiner, is not enthusiastic about a Bill of Rights, although I rather expected him to say what he said on the subject. My noble friend referred to constitutional reform. Constitutional reform cannot always await complete consensus of opinion, but I agree that it is desirable that a large measure of agreement should be achieved, if possible. In discussing this Bill, I am sure that those who take part will 273 endeavour to be as constructive as possible.
One of the advantages that I see in the Select Committee procedure is that views put forward on Second Reading would be considered at greater length when the Bill came before the Select Committee. With this in mind—and it illustrates the point that matters of principle can be considered in discussing the Bill—I suggest for consideration by the Select Committee a possible amendment to Clause 2, to add a further subsection at the end. This would come, I think, into the category of principle and therefore appropriate to mention on Second Reading. The noble and learned Lord on the Woolsack has referred to the Preamble. I am not going into the question of the advantages or disadvantages of Preambles, but the Pre-able contains the words:… the extended jurisdiction and powers of tribunals and administrative bodies".But as I see it this is not followed up in the Bill. I suggest that if this Bill receives a Second Reading, there should be added at page 4, line 3, the following:prevent anyone whose rights are affected from having access to the ordinary courts of the Realm on appeal from decisions of tribunals or administrative bodies.The effect of that would be as follows:… no law of the Realm shall be construed or applied so as to preventand so on.
I believe that it is fundamental to the rule of law that all decisions affecting people's rights should be tested in the first, or any rate in the last, resort in the ordinary public courts of the land. This should be made clear in the Bill. It may be that most citizens do not wish to find themselves in court at all, but I believe that they like to feel that in the last resort they can go to the ordinary courts of the land.
One of the issues discussed by several noble Lords in the debate of June last year was the extent to which a Bill of Rights should contain entrenched clauses—that is to say, whether the Bill should be amendable by future Parliaments, in what manner and with what safeguards. I suggested at the time that where a future Bill purported to amend or override the Bill of Rights, this should be clearly stated. I think the noble and learned Lord who sits on the Woolsack has given 274 an indication of what he had in mind. Certainly I had in mind a procedure whereby it would be made clear in the Bill that the original Bill of Rights was being amended. I also suggested that such amendments in a Bill which proposed to amend the original Bill of Rights should be considered and reported on by a Select Committee before the Bill reached the Statute Book. I recall that some similar proposal was put forward by the noble and learned Lord who sits on the Woolsack when he spoke at that time, and that is the kind of suggestion that requires consideration.
I must say on reflection that if a Bill of Rights were placed on the Statute Book, there might not be the immediate danger that the next Parliament would repeal it outright or drastically amend it, but probably the greater danger would be that the principles contained in the Bill would be gradually whittled away, almost without Parliament noticing, by the steady flow of legislation. Therefore we require some kind of warning light, some body charged with the task of examining legislation, including Statutory Instruments, with particular reference to their bearing on the Bill of Rights, if we have one on our Statute Book. I can see the force of the noble and learned Lord's argument about the Ombudsman. I think it essential that a lawyer, or body of lawyers, should be concerned in this examination. But that does not affect the principle that we need this warning light and some procedure for examining our legislation.
I am well aware of the contention that in Britain we have been accustomed to rely on specific remedies for specific injustices, but I do not think we need forgo the benefit of that custom. It is not inconsistent with the laying down of general principles. Many important principles have been laid down in the courts of the land but that has not affected the advantage that we gain from specific remedies for specific injustices. I hope that your Lordships will not be deterred by the argument that it is difficult to devise appropriate words. I think the noble and learned Lord, Lord Gardiner, will agree that all too often those who oppose a reform put forward the contention that it is difficult to find appropriate words. Finally, I hone that we shall not be deterred by the contention that our common law principles have 275 been evolved over a long period of time and that they alone provide the necessary safeguard. True, they are extremely valuable, but surely it is possible, and I think that in time it will come to pass, that a Bill of Rights would strengthen and not ossify the principles of British justice and at the same time indirectly support those in other countries who are anxious to see similar principles enshrined in their law and enforced in their courts. For these reasons, I hope that this Bill will receive a Second Reading.
§ 5.10 p.m.
§ BARONESS GAITSKELL
My Lords, I have a rather uncomfortable feeling that I am trespassing on lawyers' territory, and I must tread very gently in this den of lawyers. I am sadly out of sympathy with the noble Earl's Bill as drafted. I find the Preamble very reactionary—and I do not use that term in any offensive way. Anyone with experience of United Nations resolutions is for ever allergic to preambles. Here I sympathise with the noble and learned Lord the Lord Chancellor. I have a feeling that the ideas in this Bill were stimulated by some popular myths, one of them being that a democratic Labour Government is some kind of dictatorship. Despite the fact that we have no written Constitution, I do not believe that in recent years, as the Preamble to the Bill says,the rights and liberties of the subject have … become obscured and restricted".In fact, I believe that under the Labour Government many of our laws, tribunals, rules and customs have been promoted and clarified; that the rights and liberties (here I agree with the noble and learned Lord on the Woolsack, who mentioned this in his brilliant speech, although he did not mention the Labour Government) have been safeguarded.
The question of a written Constitution and a Bill of Rights in different countries came up in the United Nations when I was there, when we debated the International Covenants. I remember that on one occasion, when sticking too carefully to the brief that I had been given, because I was so ignorant on the subject, and due to my flimsy knowledge, after I had made a flattering remark about the splendid written Constitution of the Soviet Union I repeated the unguarded phrase that "not everything enshrined in a written 276 constitution was acted upon". What followed was a tremendous attack on me by the Soviet delegate, who wanted to know how I dared question and insult and sneer at the Soviet Union's written Constitution.
We know, of course, that in the United States, the fact that a strong Bill of Rights exists has not prevented many violations of human rights. We have to bear in mind the limited value of such an instrument. We rely on our unwritten constitutional conventions: though they are not legally binding, they are observed in practice. We have, however, exported a written Constitution to our Commonwealth countries. The noble and learned Lord the Lord Chancellor explained, in, I thought, a most interesting way, why we did this. And in this written Constitution are the safeguards inherent in the sovereignty of Parliament.
This Bill of Rights introduced by the noble Earl is much narrower than the guarantees that we have written into the Constitution that we have passed on to the Commonwealth countries. It does not include any enforcement machinery, and it is not clear or evident how the Parliamentary Commissioner could provide any effective remedy to secure redress to the citizen who is harmed by the abuse of power. It seems to me that it is the individual's rights and interests that should be guaranteed by laws which are fair to the individual citizen. Abuses of power can, of coarse, come from Parliament, the Civil Service and local government.
One of the strongest arguments in favour of our having a Bill of Rights (and here I most humbly disagree with the Lord Chancellor) is that we have ratified the European Convention on Human Rights, and that under Article 1 of the Convention the United Kingdom is obliged to ensure to everyone within its jurisdiction the Convention's human rights and guarantees. Also, under Article 13, the United Kingdom is obliged to provide an effective remedy before a national authority for any violation of the Convention. It seems to me unnecessary, and almost absurd, that we should not be able to bring such violations before a British court or Commission, but have to go to Brussels for this. That I think is a strong argument for a Bill of Rights to-day. The noble Earl's 277 Bill does not mention the European Human Rights Convention or the United Nations International Covenant.
There is no doubt that a Bill of Rights—though not, alas! this one—could make a contribution to the protection of individual rights in Britain against abuses by the Legislature and local government. This would be a way for an individual to challenge the abuse as a matter of right. Parliament, as has been said so often, can deal with all kinds of abuses by special reforms and laws. The Labour Government had a very good record, as exemplified by many of the laws that they passed during their term of office. If I may list a few of them, they include the Race Relations Act; equal pay; redundancy payments; the Theatres Act; the Criminal Justice Act; the Parliamentary Commissioner Act and the Rent Act. It is, as I say, an impressive list; and perhaps I might ask the noble Earl whether he has forgotten his own Sexual Offences Act. All these measures, far from restricting freedom, have increased individual liberty. The Labour Government added another fundamental freedom for the individual; namely, the right of individual petitions. Ironically, the European Commission can investigate any of these Acts of the Labour Government, so that it is a Conservative Government that has to consolidate this advance.
After reading an excellent Fabian tract called, Democracy and Individual Rights (Fabian pamphlets are now a kind of extension college for me), we could, it seems, take the modest first step of translating the European Convention into English law, and of providing some method of enforcement, so that our laws keep in line with international standards. The fundamental reason for any Bill of Rights is, after all, the safeguarding of the citizen from the abuse of public power. I should have been glad to support the noble Earl on his Bill, but I cannot help feeling that, as drafted, it is defective. It does not help to bring our internal law up to the highest international standards.
§ 5.20 p.m.
THE LORD BISHOP OF CHICHESTER
My Lords, now that the noble Baroness who has just spoken has for the time being removed this proposed Bill from the scrutiny of the legal experts, I hope that from these Benches I may make a 278 comment or two about it. I do so, first of all, in quite genuine regard for the noble Earl who has moved the Second Reading of the Bill and shown his concern for liberty in many ways, and also because anything that seeks to uphold or give further acknowledgment to the dignity, worth and position of the individual obviously must commend itself to the support and sympathy of anyone on these Benches.
That phrase, "dignity, worth, and position" is a good one. It suggests that a human being is a whole, and there is some intrinsic personal worth, but also some outward position, and they can never be separated. From these Benches I would say that human rights are not just invented or derived from human law, as perhaps is suggested in this Preamble; they are ultimately derived, if they have any ultimate foundation at all, from God and from His own care for human beings. That would mean that if they are not underpinned by some religious convictions, it is likely that the foundations of the rights of man before law will ultimately be imperilled.
This Bill is right in claiming that however human beings derive their essential rights, these rights must be embodied in law, and in the customs—which I take to mean the ideas and practices, and all those indefinable elements in society which promote and create law in the end. That must be behind it. It would be a great pity if I ever gave the impression, or any of us from these Benches gave the impression, that you could in some way separate the intrinsic value of human beings—call it something which is religious or spiritual—from the value as it is expressed in society and protected by the legal provisions of that society. I hope that would be unquestionable. I say that because there is quite a common view which has been produced quite recently that the Church and Christian opinion ought to confine itself to the spiritual affairs of men, and not busy themselves (or some would say "meddle") with bodily affairs at all with their social or political situations. We strongly deny that.
Looking back to the 18th century there was, in the development of the slave trade, certainly no lack of concern for what was then regarded as the spiritual welfare of the unhappy slaves; provision 279 was made for them, and quite distinguished Christians in the 18th century defended the slave trade on the ground that it gave to certain people an opportunity for learning the Christian faith which they would never have discovered in their own isolated and remote tribal areas. But to-day there would be very few Christians, if any at all, looking back upon that period who would not have wished that this kind of reasoning had been challenged, and to praise or uphold an institution which was a denial of the very dignity and worth which the Christian gospel is meant to uphold was a very unhappy stage of the Church's life.
We must, therefore, say that any society or régime which encouraged and en-enforced Churches or Christian opinion to confine their interest to the spiritual aspects of man's worth or dignity, and kept them rigidly outside their political or their social conditions, would not be a free society such as the society to which the noble Earl has referred in his Bill, and we all wish to maintain. Therefore, I have great sympathy with what has been suggested in this Bill because as the noble and learned Lord the Lord Chancellor and others have indicated, there is a constant vigilance required in the maintenance of the liberties which we now possess and which changes in society at once promote new problems. There is a conflict (shall I say?) coming out between the right to live and the right to die; there is a conflict sometimes between the rights of the mother and the rights of the unborn child. Even in such an innocent phrase as "freedom of conscience and belief", which, naturally, I should be expected to espouse from here, modern conditions raise a number of acute questions, not only in the area which we have in this House debated this week, but in the field of education in so far as freedom of conscience and belief imply not merely a power to contract out of any religious presentation, but also a right to learn something about it, as an educational right. This is a new problem in a pluralist society with a great deal of immigrant pupils of different faiths, who are, none the less, our responsibility.
These are a few instances of the fact that, unless society is highly sensitive to human values, no Parliamentary Commissioner, or others, can really step in and 280 do our work for us. The noble Earl's claim that these rights should be brought before us and asserted is something with which we would all sympathise. How practical that is in such a Bill as this I could not say, although the noble Earl's suggestion has received a good deal of rough handling already from those who can judge it on its legal merits.
I should like to cite two hesitations that I have on quite different grounds about such a Bill. One has, in a sense, been referred to by the noble and learned Lord the Lord Chancellor. It rests with this Preamble. As I read it, speaking as a layman, it seemed to imply to me that in the multiplicity of laws and regulations that have come our way, and are growing in their number, the rights and liberties of the subject are being steadily curtailed. Perhaps in some ways this can be put out as a fair thesis, but in other ways it can be much more strongly maintained that the rights of the citizen are being steadily enlarged. I speak not with reference only to one particular Government, but to a rather wider area in our history.
If we look back over a number of years we can say that legislation in this country has emancipated half of the community straight away in the rights and position it has given to women. Although those rights are not fully extended—and I am sure that noble Ladies present would certainly take up swords with me if I claimed that they were—none the less there has been a considerable advance in this field. We have given far greater rights to individual partners in marriage, and in education and welfare we have greatly extended the rights of minors in the community. Indeed, we have reduced their minority by bringing the age of majority to 18—another extension of liberties. In the whole field of personal morality there have been considerable extensions, as the noble Earl will recognise from his own initiatives taken. It could be argued that the tendency to-day has been in many fields to liberate individual people rather more than to restrict them further. Even when it comes to minor laws and regulations, surely it is clear that in many ways these restrictions are not aimed at, or have the effect of, curtailing liberties, but rather of promoting them.
Any drivers of motor cars in the 'twenties will remember how free we were 281 from regulations at that time, yet no one can possibly contend that to remove existing regulations would free the motorist to-day; in our kind of world it would simply produce chaos. The facts of modern life are such that it is necessary to have a continual restraint on individuals in some aspects if all individuals are to have a reasonable degree of freedom. Therefore, this is a contention which would be a dangerous one. There is a decay—the noble Earl said otherwise, but I would disagree with him. Authoritarianism is in decline, not in advance to-day. We accept more the degree of permissiveness in the modern society on the grounds that individuals should, so far as possible, be free to choose in the spheres of their own personal life without the inhibition either of law, parental authority or even custom—
THE EARL OF ARRAN
My Lords, when I said "authoritarianism" I was referring to authoritarianism by Parliament, by Government, by the Executive; not by individuals. I agree entirely with the right reverend Prelate on that.
THE LORD BISHOP OF CHICHESTER
My Lords, I fully take the point, but I doubt very much whether you could have ultimately authoritarianism in one field and not in another; I think they spill over. But, on the whole, the assumption that I have read, or perhaps misread, into this, that the liberties of the subject are in decline, ought to be challenged. It might be suggested, otherwise, that the only way towards freedom lies in fact in reducing laws to their minimum; and there are many people who would like to reduce law in this country not only to a minimum but almost to extinction.
The second hesitation I have—and the noble Earl has already referred to it—follows upon this. It is a rather more difficult one to express. In some ways it could be argued that what we need to-day is a recognition of the significance, not of the individual but of the community; and a plethora of rules, even when they are rules paternalistically given for our welfare, may result not so much in a diminution of liberty but in a diminution of responsibility. That is one of the reasons, perhaps, why there is a great cry for participation in the 282 modern world. The rights of participation, which are now being accepted in greater measure, also imply certain duties of participation, too; that is to say, a healthy community should both protect rights and, clearly, also assert the implications of living in a community and our responsibility as members one of another for the community.
I wonder very much whether a Bill of Rights by itself would not seem far too one-sided for the kind of contemporary world in which we are living, something that does not sufficently assert the opposite side of life, which is the obligations of Man. Clearly, rights and duties are inseparable. You cannot expect duties of people where there is no freedom, since duty means doing freely what is expected of you, and not by compulsion. Equally, one cannot expect rights to be maintained for long beyond the point where they are exercised responsibly. The two are very closely linked up together. In a sense, what you are decides not merely what your rights are but what your duties are and what is expected of you. Therefore, if we are asserting the dignity of Man we cannot do it very well if we underplay the duties of Man.
This would apply a great deal to some of the rights that are set out in this Bill. It is true that freedom of conscience implies a duty to inform your conscience—a duty even, I would say, to suffer for it. Samuel Johnson, when once asked whether it was right for the Government to persecute Christians, said, after some thought, that the Government had a right to persecute the Christians, and the Christians had a right to be persecuted. This is part of an essential right of conscience, to suffer. It might apply in other fields. Parental rights and parental duties such as are indicated here clearly fit side by side. This cannot, I realise, be easily included in a Bill—although I believe the ancient legislator Solon did in fact include in a Bill or an Act that, in the case of civil disturbance or strife, any citizen who did not lake sides was liable to penalties. That may be an extreme form of opposition to neutrality which we could not pursue ourselves, but it would seem to me that this emphasis upon the other side of it as part of 283 our condition as human beings, as members of one another—and I would go further than that, of course—ought to be asserted in some way. If we are going to make a declaration of the one, we must in some way build into it something about the other, too. How this can be done I cannot say; but without that I would judge a Bill of this kind to be too liable to misinterpretation to have my support.
§ 5.35 p.m.
§ LORD DERWENT
My Lords, I hope the right reverend Prelate will forgive me if I do not follow him in his arguments, because I want to be as brief as possible. I am to some extent speaking to-day because I have been asked to by the noble Earl, Lord Arran. I believe he has made a great mistake, because I do not think he is going entirely to like what I am going to say. I understand that he asked me to speak because of a speech I made in the debate initiated by the noble Lord, Lord Wade, to which many speakers have referred. I am not going to give your Lordships the great treat of repeating all that speech, but I would say this. The arguments, to which I hold—at any rate, the early ones—were based on this thought: that something was urgently needed to be done because the two great bastions in this country, which were traditionally the bastions of the freedoms and right of the individual, were the Law Courts and Parliament. The Law Courts, of course, have done a magnificent job, particularly in recent years, but only in so far as they were allowed to, because they cannot go beyond the laws which Parliament makes. I said then, and I think now, that Parliament is falling down, and has fallen down, on that particular job.
The reasons I think are twofold. One reason is the mass of legislation that has been churned out since the war, much of which is controversial on political or on other grounds; and because of that the interests of the individual, I do not say have been forgotten, but are apt to be forgotten in some legislation. The other reason why I think Parliament is probably not doing its job—and this applies more to the other place than here—is the strength of the Party system that has grown up, the strength of the Whips. 284 My noble friend Lord St. Aldwyn would love to hear me say that that was so here. But in the other place there is the strength of the Whips, and Governments with a majority in the other place can largely force through legislation, sometimes without proper discussion. That was the basis of my argument last time; and so far I agree with myself.
I went on to say that I thought something in the nature of a Bill of Rights was required. Then I stuck my neck out—I was then speaking from the Front Bench opposite—and said I thought it was not too difficult to draft a Bill of Rights that would work. May I say straight away that I think the noble Earl's attempt is far better than the last attempt we discussed. But I, like my noble and learned friend on the Woolsack, occasionally alter my mind, and I have come to the conclusion that a Bill of Rights is not what we want. I very much doubt whether it would serve any useful purpose in this country.
Take the Bill we are examining. I am not going into Committee points although there are certain parts which I dislike and in Committee would oppose; but I reckon, on reading the Bill very carefully, that any intelligent Minister, advised by intelligent staff, could drive a coach and horses through almost any of the wording of this Bill if he wanted to. Much of it could be made to mean almost anything. I hope I am not putting the case too strongly, but I do not think you could restrict a powerful Executive. And if you could, if Parliament wanted the Bill of Rights to be overruled, as my noble and learned friend on the Woolsack has said, Parliament could do it. I have come to the conclusion that a Bill of Rights is not the right way of handling the situation. May I say one more word about the Ombudsman. I entirely agree with the noble and learned Lord, Lord Gardiner, that the Ombudsman is not the right man to tell Parliament to look into a question, and so on.
I have so far been completely destructive, and I apologise to the noble Earl. I have, however, a constructive suggestion to make. I am not expecting an answer from my noble and learned friend this afternoon, but I hope he will at any rate consider this suggestion, and if he likes later to comment off the cuff I 285 shall be grateful. As I say, I do not think legislation will handle this matter. On the other hand, Parliament very often passes legislation without realising—certainly not wanting to, but without realising—that it is infringing human principles and rights, for the reasons I have given.
What I should like to see is a small permanent Committee of five persons, rather analogous to the Law Commission but with quite different functions, of which at least one and possibly two members should be lawyers who have considerable experience of Parliamentary Bills. This Committee should be permanently in existence. No Member of either House should be a member of it. It would be the duty of this Committee to examine every Bill, whether Government or Private Member's Bill, to see whether the then rights of individuals were likely to be affected. The Committee would report to both Houses of Parliament, at any rate before the Committee stage of the Bill and preferably before the Second Reading. I think a small Committee of that kind could do the work. It would be independent and Parliament would then do what it liked, but at least the Members of both Houses would know where rights were being infringed. I hope that a suggestion of this kind, rather than legislation, may be considered.
I would say to the noble Earl that I am very glad he has introduced this Bill. As I said last time, it is a matter that ought to be looked at repeatedly in order to try to find a solution. But I regret to say that I do not think I can vote for the Bill. As to the noble Earl's second Motion. I just do not believe that a Select Committee could go into the question. It could not, in my view, draft a Bill which would be effective; but I think a Committee might.
§ 5.43 p.m.
§ BARONESS WOOTTON OF ABINGER
My Lords, the noble and learned Lord the Lord Chancellor has explained with such eloquence and so exhaustively the fundamental objections to this Bill that I fear my task is reduced to that of painting the lily, if the noble and learned Lord will allow me to use that floral metaphor in this connection. We all appreciate the object that the noble Earl, Lord Arran, had when he introduced 286 this Bill, and I am sure we all share with him a strong feeling that it is necessary to protect our liberties with the utmost vigilance. But the instruments of 1688 are not appropriate in 1970. We live in a world of extremely rapid technological change, and one of the results of that change is that the liberties of yesterday very easily become the tyrannies of to-day; and though it may be a paradox, social welfare and personal freedom itself may well be dependent upon the acceptance of certain restraints. As the noble Earl himself said, we live in a new style; and a new style of life demands a new form of dress.
It seems to me that the noble Earl's Bill begins on the wrong foot. It begins with an obvious and curious bias against tribunals, and almost, I think one might say, against judicial procedures. But as the noble and learned Lord the Lord Chancellor has pointed out, these tribunals are created largely in order to defend our liberties. To be specific, rent tribunals exist to prevent gross exploitation and to prevent improper eviction from our homes. Tribunals under the National Health Service give the patient the right to make his complaint, and to have it judicially heard, if he is not getting proper service from his doctor; equally, it gives the doctor the right to speak in his own defence and to have a fair judicial hearing for himself. The mental health tribunals give a right to persons who are detained against their wishes in mental hospitals to appeal to impartial tribunals as to whether they are not fit to rejoin the community.
THE EARL OF ARRAN
My Lords, may I interrupt the noble Baroness for one moment? I am sure that everything she says is correct in regard to tribunals. All the same, I think that in popular eyes the word "tribunal" is not regarded as a body to which people can go for help: it is rather regarded as something before which they have to appear. I am sure that that is a misapprehension, but for the last 200 or 300 years, in my opinion, a tribunal has been regarded as a sort of courtroom. Am I wrong in that?
§ BARONESS WOOTTON OF ABINGER
My Lords, I venture to suggest that the noble Earl is entirely wrong, because the three examples which I have given are conspicuous examples of tribunals to which one can go in order to get help; 287 and I would particularly quote also the planning inquiry. I never attend a planning inquiry—and at one time I used to attend a good many—without passionately wishing that some representative from countries behind the Iron Curtain was also present. And I am not biased in favour of planning inquiries, because three times in my life I have asked for planning permission and twice I have been refused.
Now, my Lords, I should like to look for a moment at some of the specific clauses of the Bill. In introducing his Bill the noble Earl suggested that the first three points in Clause 1 are non-controversial. I venture to suggest, however, that "enjoyment of property" is a highly controversial phrase. The right of property is not an eternal statute or edict that remains for all time: it is liable to modification in the changing social and technical conditions of the age. The "enjoyment of property" might be interpreted to mean that if one owns a house one has a right to live in it at any time and to evict a tenant, without regard to whether the hardship of the landlord is greater than the hardship of the tenant. One might hold that one could do with one's property what one likes—for example, building an extra structure upon it. One of the occasions when I failed to obtain planning permission was when I wanted to modify my property so that I might get vehicular access on to the roadway. This was refused, on the ground that it would be a dangerous exit and therefore liable to endanger the safety of persons on the road.
If we go on into the later parts of the Bill we find that it is extraordinarily comprehensive and, I should have thought, far too detailed. The coach-and-horses to which the noble Lord, Lord Derwent, referred, could easily drive through it. We find, for instance, that one of the rights that we are to be guaranteed is that a person charged with a criminal offence isto be presumed innocent until proved guilty according to law in a fair and public hearing …A very large number of persons charged with criminal offences are persons under the age of 17, and most of us are very glad that, though we hope they get fair 288 hearings, it is forbidden by law that those hearings should be in public.
Then any person is to have the rightto form an association or union of his choice for the promotion and legitimate protection of his lawful profession or occupation and to leave such association or union if he so chooses without legal, professional or other discrimination or disability.It may well be that some disability, some discrimination, may be necessary if we are not to have totally chaotic industrial relations. Under another paragraph, parents are to be allowed to send their children to schools of their choice provided that those schools,conform to the minimum standards accepted or approved as ensuring the moral and professional education of infants.My Lords, schools may be full; they may be specialist. There must be some limitation on the rights of a parent to select any school for his child.
Finally, when we come to the last paragraph in Clause 2 we have something which is almost Gilbertian. The whole clause is governed by the phrase:… no law … shall be construed or applied so as to …and the final paragraph says:authorise any individual unlawfully to seize, endanger, or jeopardise the property … of another.It seems a little odd that that contemplates that we should have a law which would authorise a person to act unlawfully.
I know that the noble Earl regards these as Committee points, and that we might then modify the Bill so that these objections cease to have force. But I think that if he hopes to tidy up his Bill in Committee he may find that he has tidied it away, and that there is a very real danger that it will be impossible to find any form of words that does what he wants it to do, and what we all perhaps want it to do, and does not do what we do not want it to do. Indeed, I think we might go further and say that almost any form of words which can be written into a Bill of this kind, in the changing world of to-day, might be interpreted by a Government that so wished as to give freedom to the strong and the powerful to trample upon the weak and the powerless.
§ 5.53 p.m.
§ LORD SOMERS
My Lords, the noble Baroness who has just spoken has put in far better words, due to her greater experience, a great deal of what I intended to say. But I should like to say to the noble Earl who introduced this Bill that I am very sorry, and I mean genuinely sorry, that I shall not be able to support it. I know the motives behind his introduction of the Bill were entirely sincere and genuine, but I cannot feel that a Bill of Rights such as the one we are considering to-day is appropriate. Just about a year ago I was asked by the Society for Individual Freedom to introduce a Bill which was almost identical with the one we are looking at to-day. I refused then to do so, because I did not feel that the time was right. I felt that people throughout the country were only too keen on asserting their rights but forgetting about their responsibilities, their duties and their loyalty to their fellow citizens. Therefore I refused, and I do not think that things have changed a great deal to-day.
The noble and learned Lord the Lord Chancellor referred to the Bill as something of an anachronism, and he is indeed quite right. All the rights in Clause 2 which it is intended to prevent from being eroded by the law are in fact in existence already. It does not seem to me that there is any point in emphasising their existence. I would much rather see something which encouraged people to realise that if they are to have rights they must justify them by giving something of their own to their fellow citizens. We must look facts in the face and realise that to-day this country is in almost as great a state of emergency as if she were at war. The amount of crime has risen, the number of strikes has been a great threat to industry, and the financial state of the country is very perilous. Therefore, I feel that it is not the time to introduce a Bill of Rights, but rather, if possible, a Bill of Duties, and I am very sorry that I am unable to support this Bill to-night.
§ 5.56 p.m.
§ EARL AMHERST
My Lords, I do not propose to take up much of the time of the House. I wish to raise only one particular point concerning our own personal freedom which, if this Bill were to be given a Second Reading and possibly go 290 to a Select Committee, which I hope it will, can be looked at and possible remedies found. The point I wish to raise is in connection with these computer banks of personal information. At the present moment, according to my information, the situation in the United States has reached a point where anybody can form a company, an agency, to collect all kinds of personal information, using every kind of method, possibly questionable, possibly not. This information is then put into a computer bank and is at the disposal of anybody who chooses to pay for it. I am told that legislation is proposed in the United States to try to curb this activity, which seems to me a highly undesirable one.
I am not saying for a moment that the position is anything like as bad as that in this country, but perhaps I may give three instances of things which I think are rather frightening. In the first instance, in the Institute of Directors Medical Centre—an excellent Institute and a very good medical centre—they counsel their members to have a medical check-up every year, a very wise, sensible thing to do. But this is accompanied by a questionnaire which asks all kinds of questions, social questions; what they eat or do not eat, who their friends are, what plays they see, what books they read and so on. This can all be very valuable alongside the medical report on their metabolism, and it is all stacked away in the computer. I believe that the individual doctor can get access to that information if he wants it.
Similarly in BUPA, which is an excellent organisation. They also conduct annual medical checks, or even more frequently; medical checks are very fashionable these days. The same thing applies. A questionnaire is asked of the applicant and all his personal details are noted down and put in the computer. Further, which I think is a little more frightening, I am reliably informed that in the rather higher realms of the nationalised industries it is not at all unusual for somebody to come along—it may be the Board of Trade or some other Government agency that controls a particular person—to ask individual questions of a person, with a view, I suppose, to using the information for selection boards or something of that kind. In all these cases, it is on a voluntary basis; you are asked to do it, 291 not forced, but I am told that the implication is that if you refuse you are marked down as unco-operative, which can be used as a mark against you in the future. I do not know, but supposing this information is then produced at a selection board to determine an appointment, is there any means whereby the individual can challenge this information? Can he challenge as to who files this information? Presumably, getting the information on to a computer involves quite a few people—clerks, secretaries and so forth. Probably it is too much to expect them all to be absolute models of discretion. There are far too many people seeing these things. For how long are these records to be kept? What is valid information to-day may not be valid in two or three years, or even in ten years' time. It may be quite out of date by then. Is there any regulation by which this can be controlled, so that if the information is not brought up to date it is destroyed?
I have one question which is a little out of context. During the last war the various agencies of the Forces, the Army, the Navy and the Air Force, had their special branches. The Army had the Special Investigation Branch. These people produced every sort and kind of personal file on all sorts of people. From my own personal memory, I can say that some of the files were totally inaccurate and prejudiced. What has happened to all this information? Who has it? Is it stacked in Army or Navy records somewhere? Can anybody get it? With computer information, can anybody go and get access to that? Can an officer of the Special Branch of Scotland Yard go along, flash his badge, and say, "I want to see the file of" so-and-so? I do not know. I hope that if this Bill is passed, there may possibly be some opportunity to examine these frightening things, to see whether there may not be some means to curb what I can only describe as this dangerous, monstrous computerised "snoopering".
§ 6.3 p.m.
§ LORD STOW HILL
My Lords, if I offer to address your Lordships I hope I may be excused, my name not being on the list of speakers. I did take the necessary steps, but owing to a misunderstanding my name was omitted: it has, I 292 think, been restored to the place that it might otherwise have occupied. The noble Earl, Lord Arran, is highly esteemed in this House, and all of us would applaud the motive with which he undertook this most difficult initiative.
If I address your Lordships fairly shortly in giving my reasons why my advice to the House would be not to vote for the Second Reading of this Bill, it is because the noble and learned Lord who sits on the Woolsack, in his most admirable and comprehensive address to your Lordships, said in much better terms than I can find so exactly what I would want to say. I think I agreed almost entirely with him, except that I think my mind would not have vacillated in the way in which he said his did on the question of whether we should have a controlled Constitution—and I will give reasons later why I take that view. But the question of whether or not we should have a controlled Constitution is not raised by this Bill, because it has been pointed out that this Bill, if it became law, could be repealed by a later enactment passed by this or any other Parliament. Therefore it could not be the stepping-stone towards a controlled Constitution, even if that is desirable.
I entirely take the point which the noble Lord the Lord Chancellor made, that it would be invidious to make captious criticisms of this Bill; and I will try to avoid doing so. But I confess that I feel that it has certain serious defects. As the noble and learned Lord the Lord Chancellor said, we are not back in 1688 or in 1700, when the Bill of Rights and the Act of Settlement were passed. Those were major constitutional enactments, designed to afford a guide for centuries of evolution, in which basic agreements arrived at after the long struggle for power between the Crown and the people were recorded. That is not the situation today. There may be a case for writing into the Constituent Acts for some of the new emerging Commonwealth countries entering on a new sovereignty and independence a formulation of basic rights. That has been done in the case of a number of them. But I am bound to say that the formulation of those rights in many of those countries has not availed very much to safeguard the rights of free Parliamentary Opposition in those countries.
I say that because I would submit to your Lordships that writing down on a 293 piece of paper, whether in an Act of Parliament or on any other piece of paper, a number of admirable principles would not, in all probability, if the crunch really came and if the fundamental basis of democracy were threatened, help very much. It might do a great deal of harm. If we enact in a Statute that certain courses of conduct are to be followed we perhaps get a warm feeling inside and think that we have done something. If we enacted at any rate that course of conduct in the terms of this Bill, we would have done—and I say this with the greatest respect to the noble Earl—precisely nothing, except perhaps introduce a great measure of obscurity in the interpretation of a number of our Statutes.
In this year, 1970, after centuries of democratic development, is it really of much help to state in an Act of Parliament that there is in this country "freedom of conscience and belief"? Does anybody ever doubt it? Has it ever been questioned? I would ask this question of the noble Earl. Supposing the Act of Parliament that we pass said, not that there shall be freedom of conscience and belief, but the precise opposite: that there shall no longer be freedom of conscience and belief, what would happen then? I should have thought no sensible person would pay the slightest attention to an enactment either in the one form or the other. It would be completely and utterly irrelevant to the course of our affairs to-day.
May I dilate for a moment on Clause 1? There are set out in paragraphs (a) to (h) certain basic rights, as they are described. Paragraph (d) is prefaced by the words "subject to law". What is the result of enacting a Statute in these terms? Take the case, by way of an example, of paragraph (e) which proclaimsthe right of the subject to move freely in and out of the Realm",subject to a qualification. Test that by reference to the Commonwealth Immigrants Act 1968, an Act for which I voted because I thought the Government had no alternative to introducing it, but which undoubtedly, I should have thought, in the case of Kenya Asians who are British subjects and the holders of British passports, does conflict with the wording of paragraph (e), which refers to: 294the right of the subject to move freely in and out of the Realm …I ask, looking at the Act passed in 1968: if we pass this Bill, would it make the slightest difference to that Act? The answer must. I should have thought, clearly be "No", because paragraph (e) is prefaced by the words that I have quoted, "subject to law". The 1968 Act is part of our law and, therefore, if we pass into law these words which appear in Clause I, they will not have the slightest effect. It would be no more than a pious expression of intention. At the outset, I say with the greatest respect to the noble Earl that an Act of Parliament is really not the proper instrument for an exercise in exhortation, however commendable.
When I pass to Clause 2, it seems to me that there we are getting into a sphere in which we are making for the maximum possible confusion in the interpretation of our Statutes. What does Clause 2 proclaim? That,… no law of the Realm shall be construed or applied so as toinfringe against certain of the maxims which are set out in the succeeding paragraphs (a) to (o). May I test that by taking one as an example? Paragraph (m) prohibits the interpretation of a Statute in such a way as to read it as imposing "retrospective taxation of income or capital". Going back almost to the beginning of the century our Finance Acts contain a number of provisions which directly, and in terms, impose retrospective legislation. If this Bill becomes law are we from now on, when we read those Statutes, to pretend that they do not say what they plainly do? Surely that is making for confusion.
THE EARL OF ARRAN
My Lords, with great respect to the noble Lord, Lord Stow Hill, there is no question of this Bill before us becoming law. I am not proposing that. I am simply proposing that it be referred to a Select Committee. Nobody has the slightest intention of seeing this Bill on the Statute Book. I thought that had been made clear to the House from the very beginning. This is going on all the time, people picking up paragraphs (a), (b) and (c) and making a nonsense of them all, driving a coach-and-horses through them. I just ask them to consider this Bill as an instrument for 295 forwarding, not to pick holes in it—something that it is quite easy to do.
§ LORD STOW HILL
My Lords, I am extremely sorry to have incurred the noble Earl's displeasure, and I will try not to offend again. I will say no more about his Bill because, from his remarks, I take it that he will not seek to make this Bill part of our legislation in this form.
Having said that, may I pass to the second question that is, in effect, raised before your Lordships' House to-day? If this Bill is given a Second Reading (may I use the phrase de bene esse?) as a bad and inadequate Bill, but nevertheless as a platform towards a Select Committee, is it really desirable now to think in terms of a new Bill of Rights, or a statement of fundamental rights? If I may say again to the noble and learned Lord the Lord Chancellor, I am very much more confident in the existing system than I think he is. I know that he does not lack confidence in it, but what he said was that at an earlier stage he would have been "anti" any Bill of Rights proposal, but that of recent years he has wondered whether a majority in Parliament could not be used for tyrannical purposes, and, therefore, whether we should not move towards a controlled Constitution.
I do not think that the guarantees of our constitutional freedoms will rest, as things are now and are likely to be in the foreseeable future, on the terms of a written Statute. I have complete confidence in the Back Bench Member rising in his fury from his place and, if I may use an Americanism, "raising hell" if a Minister on the Front Bench seeks to offend against the basic freedoms. It seems to me that that is where our guarantee is; and in the rugged independence and rigid objectivity of our judges, and the humanity of our juries. I think it resides in a free Press; in the readiness of a foreign correspondent, for example, to lay down his life on the battlefield in order to purvey news of what is happening to the rest of the world. It resides in the proverbial quiet little man in a bowler hat riding on the top of the Clapham omnibus and "blowed if he is going to be shoved around".
Our guarantee is to be found—and I know this from personal experience, as I 296 have "spouted" from dozens of Yorkshire platforms for hours—in the stiff-lipped Yorkshireman who will listen for an hour to nonsense being "spouted" from a platform without a perceptible change in his countenance, except possibly the faintest semblance of a smile. I think it lies with the protesters against almost everything: the firm-voiced male and female in Trafalgar Square, in the Albert Hall, in Hyde Park, or carrying heavy banners along draughty streets in any of our great cities flanked by a grave, impassive police officer marching by their side. I think it resides in the Nonconformist conscience. I think it resides in the long-haired student, in the lunatic fringe in all Parties, and in all avenues of thought. My Lords, my belief—and may I say my passionate belief?—is that if all those fail us; if the mood of this country changes drastically and catastrophically; if the Back Bencher, the judge and the journalist forget their duty, and the protestor is muted, why then the time has come when we should have to reconcile ourselves to succumbing to some type of Fascist or communist yoke, in a Britain wholly unrecognisable—but not until then.
It is perhaps not inappropriate to remind ourselves of the reaction of the people of this country during the grim and pitiless 1930's, before the world war. In one great country after another moral values were contemptuously disregarded and trodden underfoot, and the air of Europe was foetid with the stench of authoritarian doctrines in various forms. Yet throughout all those grim years in this country there was scarcely more than a whiff of it—although I suppose we all remember the haunting dole queues of the unemployed, the ill-dressed and ill-fed children, and the wide economic distress that in other countries brought Hitler and his kind to power. This country, my Lords, lived unscathed through those years, and I should have thought that if we simply look back at those years we can have complete and absolute confidence in the independence of this people, which will not bow to any yoke. I feel that there is the guarantee of our liberties; and we need no writing in a statute of general principles, however admirable. For those reasons, I should certainly not be able to vote for the Bill, or for the purpose behind the 297 Bill, which is the setting on foot of an inquiry, as the noble Earl has explained, as to whether a Bill of Rights, and in what form, is necessary and desirable.
§ 6.18 p.m.
§ THE EARL OF CORK AND ORRERY
My Lords, my maiden speech is too far behind me for me to cast myself upon your Lordships' mercy and ask for your indulgence, but I feel I shall perhaps have the sympathy of the House in having to follow the noble Lord, Lord Stow Hill. To follow a master advocate in his speech is a fate which has befallen me before. It places me in a predicament, because if I support him my puny words will be of no account and nobody will pay any attention; and if I attack him my words will bounce off him like rubber-tipped arrows off a man in plate armour. So perhaps the noble Lord will forgive me if I do not follow him until his words may have been swallowed up by the sound of mine, and I hope I will catch him up again a little later on.
I have no intention of rehearsing the long list of debates, including attempts at legislation, that have gone before on this subject. They are very long, and in one respect at least they have been depressing. If I may refer again to the debate initiated by the noble Lord, Lord Wade, in June last year, and also to the speech at the end of that debate, from the noble and learned Lord, Lord Gardiner, who at that time graced the Woolsack, I would remind your Lordships that the noble and learned Lord said these words at the end of his speech:My Lords, we have all had a most interesting afternoon,"—[OFFICIAL REPORT, 18/6/69, col. 1093.]Is the noble Earl, Lord Arran, to be told at the end of this debate that we have all had a most interesting afternoon? I hope that some gayer fate awaits the noble Earl and his Bill. Has not the time come to start trying to translate opinions into action? We have had plenty of opinions expressed in all these long debates, and what has emerged from them all? Two things, I suggest: first, a kind of vague opinion, not supported by everyone but fairly generally held, that something ought to be done; and, secondly, this Bill.
298 This Bill is an imperfect Bill, and the noble Earl said so himself. But it is all we have, and I think that it ought to be submitted to a Select Committee. I understand, if I may say so with the greatest respect to the noble and learned Lord on the Woolsack, that the possibilities of a Select Committee lie rather nearer to the beliefs of the noble Earl, than to those of the noble and learned Lord himself, in the fact that a Select Committee could deal with such a Bill on a very wide range, as has been indicated by the noble and learned Lord, Lord Gardiner. But, in any case, the alternative is nothing.
At the moment, I have it in mind to speak of two dangers that I see threatening our liberties. The first I will touch on in only the briefest manner, although it is potentially the most dangerous, and that is the master file. The master file, or the master memory as it has been described in a frightening manner in other debates by the noble Lord, Lord Ritchie-Calder, has gained your Lordships' attention before and will doubtless do so again, so I will do no more than remind you of what it is. I am told that it is likely to be at the disposal of the State within live years from now, and consists of a system of linked computer banks which will be capable of compiling and storing, with instant total recall, a complete life history of every man, woman and child in the country with the result that large numbers—unknowable numbers, perhaps—of faceless men and shadowy departments will be able to receive any or all of this information at the flick of a switch within a space of four minutes.
This indeed is "Big Brother" coming to life in a nightmare way, and 14 years before 1984. I do not know whether it is possible to legislate against information going into such computers, nor are we concerned with that in this case. That is a matter of privacy. But I think that if anyone is going to be placed at a disadvantage by such records, which can be used in evidence against one and which are bound to be both biased and incomplete, a person ought, at any rate, to have the opportunity of knowing what the tapeworms have been storing up against him behind his back.
So I would propose, if it ever came to such a point, a new paragraph (i) at the 299 end of Clause 1 in some such terms as this:the right of the subject to access to any record of his past that may be used to his discredit".No doubt there are drafting difficulties in that, and the whole proposal would become the subject of another debate. But I have fed that thought into your Lordships' personal data banks, and will now pass on to what I regard as the second enemy of freedom, which is second only in the order in which I have taken it in my speech.
The second enemy is government. I am in some doubt whether at present we are proceeding towards or away from greater civilisation, but I am quite sure that we are more civilised than we were some centuries no. At an early stage of this civilising process, we appreciated that a bill for progress would have to be paid for partly in inroads into our own personal individual liberties. For whatever else civilisation may mean, it certainly means by definition the organistation of citizens living in a community, with all the give and take that that implies. But we also determined that curtailment of our liberties should be accepted by agreement, and not imposed upon us by powers from above—hence Magna Charta, the Declaration of Rights, the Bill of Rights of 1689, the Reform Act of 1832, and other similar measures.
We took away authority from our Sovereigns and entrusted it instead to Parliaments of our own appointing, and that should have been the end of the process. But we know now that it was not, although I noticed—and this is where I begin to overtake, panting faintly in the rear, the noble Lord, Lord Stow Hill—that there are some, including the noble Lord and the noble and learned Lord on the Woolsack, who imply that that has been the end of the road and that Parliament is sovereign. I do not think it is. In attributing those thoughts to those two noble Lords, I should like to make a rough quotation from what the noble and learned Lord the Lord Chancellor said. He said that a temporary majority in the House of Commons is far too liable to transform itself into an instrument of oppression.
The noble Earl, Lord Arran, said that the tyrant this time is Parliament, in say- 300 ing which I think he did his Bill considerable harm. I do not agree with him, and in a moment I shall say why. What has happened, in fact, is that sovereignty passed as was intended, first of all from the Sovereign to Parliament as representing the people, and then from Parliament to Government, from the Legislature to the Executive. In theory that would not matter, perhaps, because, the Government being answerable to Parliament, Parliament remains sovereign. But in practice that is certainly not the case, for the Cabinet system has evolved to a point at which the tyranny of Kings is now in a fair way to being succeeded by the tyranny of Governments.
We need not cast our minds back very far to remember the perfectly legal operations of the Land Commission, which produced effects which the Government themselves admitted were unjust, with the result that amendments were made to prevent further injustices ever taking place in the future. But those amendments were not retrospective. Injustices already suffered were not to be redressed. And why not?—because their redress was administratively difficult. When a Government admits that injustice and financial hardship have been caused to certain individuals, and yet decline to put a matter right because it would be inconvenient to themselves, how brightly does the red light then begin to glow? That was done under a Labour Government, but I intend no Party point. For your Land Commission I will play you a Crichel Down at any time. I have no doubt that instances of this kind can be multiplied with a fair balance of discredit all round.
By way of prevention, this Bill proposes in Clause 3 an extension of the powers of the Parliamentary Commissioner. This has been much criticised, and I think rightly criticised for all the reasons put forward, simply because the Parliamentary Commissioner is not the man; and, secondly, because he has no power to do anything at all. My proposal would be rather more radical and a good deal more widespread, for what is it that stands between the sovereignty of Parliament, which the noble and learned Lord on the Woolsack, the noble Earl, Lord Arran, and the noble Lord, Lord Stow Hill, said is the paramount power 301 still and liable to become tyrannical—but which I say is not—and the power of Government? My Lords, the answer is the Three-Line Whip.
To come back again to Clause 3—and I am leaving aside for the present all question of who should be charged with the scrutiny of proposed legislation—I would amend the last two lines, for it is not enough to report any inconsistency to both Houses of Parliament. What is needed in the case of any Bill or clause or Statutory Instrument that is found and declared to infringe the provisions of the Bill of Rights, is a power to veto absolutely and publicly the use of the Whip on either side; in other words, to order a free vote. On such a vote no Government could fall, or would fall; yet at a single stroke the paramountcy of Parliament as guardians of the liberties of the citizen is restored. For the vote would be a true statement of the majority opinion of the House, of both Houses, and not a mere rubber stamp banged down by whatever Government happen to be in power. It may be said—and, indeed, it has been said—that Parliament has the power to override the Bill of Rights or any oilier Bill because you cannot, and in my opinion do not want to, try to entrench anything under our Constitution. Very well; but then it would have been done by a free vote taken by the representatives of the people, which is a very different thing indeed from its being ordered by a Government commanding a majority in the House of Commons which they can use, as I say, like a rubber stamp. That is where tyranny lies, my Lords.
Now are there any insuperable technical difficulties in the way of this idea? I do not know, but I doubt it. Does it involve any constitutional impropriety? I think not. Who, then, will object to it? Governments? I would give a good deal for the privilege of being able to overhear the deliberations of any Cabinet trying to find a passable excuse for doing so. Surely this idea should commend itself particularly to the present Administration, dedicated as it is to getting government off the backs of the people. And, as I say, my Lords, it could be written into this Bill by means of an Amendment to the last two lines of Clause 3.
302 As to the rest of the Bill, there are some few Amendments that I would propose, including a quite simple and short one to take out Clause 2. But I have nothing to say about Amendments at this stage. All I still have to say is this. My Lords, I pray you, do not throw out this Bill unless you have it in mind to produce a better one, and to produce it soon. Do not throw it out because of a belief that no process you can think of will turn it into a viable Bill fitted exactly to the purpose for which it is designed. Let there be no resistance to its further progress on feeble, half-hearted or defeatist grounds, such as that to commit it to a Select Committee would be to waste that Committee's time. For if indeed that he what your Lordships think—and I trust it is not—I hope you will conclude, in effect, that little time remains, and that to run the risk of wasting the little that does remain is preferable than to let it trickle away with nothing done. My Lords,The Bird of Time has but a little way To fly—and Lo! the Bird is on the Wing".May I repeat the familiar, if much misquoted, words of a former Master of the Roils in Ireland, the orator, John Philpot Curran? I say "much misquoted", and I stand to be corrected myself here, because I have in mind no fewer than two noble and learned Lords who either sit or have sat upon the Woolsack, and if in fact they were paraphrasing no doubt they will forgive me for suggesting that they were misquoting. The words are these:The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime, and the punishment of his guilt".But what is vigilance without action? And what use to spend an interesting afternoon watching a crime being committed beneath your window if you do not bother to summon the police? In the belief that here is at least the chance of action, I commend this Bill.
§ 6.34 p.m.
My Lords, I note the lateness of the hour and have tried to prune my speech with regard both to the clock and to what has already been said. I congratulate the noble Earl, Lord Arran, on to-day's initiative, but have 303 to confess that my attitude to the Bill will, I fear, be of small comfort to him.
The 17th century declaration ofthe true, ancient and indisputable rights and liberties of the people of this Kingdomwas born out of past experience. To-day's proposal stems from concern for the present situation and fears for the future which I consider are justified. I approve the objective, but, as I see it, am in difficulty over the means or the form of the Bill. I am troubled by the actual spelling out of specific rights and liberties. I am troubled on two counts. The first recognises the especial difficulties of drawing up such a declaration in the absence of a written Constitution. The second is that I have very real, deep-seated misgivings about our ability ever to draft such a declaration in a way adequately to cover the complexities of existing rights and liberties. My concern here is that we may never find the right words for this. Many times noble Lords, and particularly noble and learned Lords, have warned the House of the risk of, for instance, accidental exclusions stemming from endeavours to draft—shall we say—all-embracing perfection.
This is not to say that I do not acknowledge that the time may be appropriate for the spelling out of existing rights and liberties (and here, perhaps, is the hidden bonus) simultaneously reminding the individual of his responsibilities to those rights and of the respect he should have for the rights of others. But they would also be spelled out for Parliament, and this evokes considerations, I suggest, frighteningly far removed from the risks of accidentally misleading a tap-room or campus lawyer. It is on the grounds of these two main objections, as well as others with which I will not weary your Lordships this evening, that I find that I cannot, should it come to a vote, support the noble Earl, Lord Arran.
I had hoped to hear something more substantial from the noble and learned Lord upon the Woolsack as to what the Government may have in mind; and before I sit down I should like to say that I believe that we should now actively be seeking to devise new ways and means, and to augment old ways and means, of securing the absolute sovereignty of Parliament, and that sovereignty in respect to Governments.
§ 6.39 p.m.
§ LORD LLOYD OF HAMPSTEAD
My Lords, the noble Earl who introduced this debate rightly remarked that it is a non-Party issue, and the varying views which have been expressed from different parts of the House have sufficiently illustrated the truth of that view. Of course, we are all in favour of human rights these days. Indeed, any of us who might seek to oppose some measure which is seemingly put forward in the hope that it will support human rights may well be stigmatised as a reactionary. But I feel that one must risk incurring that odium by expressing one's dissent from a Bill of this sort, both in principle and so far as this particular measure is concerned.
At this late hour I do not propose to rehearse all the arguments in this matter which have already been put with such cogency and with characteristic brilliance by the noble and learned Lord who sits on the Woolsack. I would merely venture to add a point or two which perhaps have not been fully brought out. One point that I should like to put before the House is that a Bill of this kind might have no effect at all; it might prove to be, in the words from Macbeth, nothing more than "sound and fury, signifying nothing". On the other hand, the Bill might have an effect. And what effect would that be? It would be substantially to increase the power of the judges in the field of construction. One must ask oneself whether that would be a desirable thing; and one suspects that in the context of a Bill of this sort nothing would be more unwelcome to the judges themselves than to be given a potentiality of power which would bring them right into the political arena. One may take the experience of the American Supreme Court which has been operating a Bill of Rights for a great many years; and one knows—it is accepted on all sides—that that Court has been brought right into the political process.
This has a number of consequences. It becomes apparent that when judges are interpreting decisions and provisions of Statutes in relation to certain political principles, their decisions will be found to vary according to their own particular philosophy. We may find ourselves back in the situation of John Selden's celebrated gibe in the 17th century, in the early days of equity, that equity varied with the length of the Chancellor's foot. 305 Indeed, in the United States to-day it is well known that there are two differing schools of thought in the Supreme Court. One expresses the doctrine of judicial restraint associated with the name of the late Mr. Justice Frankfurter, while the other expresses the much more aggressive approach and construction associated with other judges, particularly Justices Black and Douglas.
Then, again in the United States, when the Executive's objectives by way of legislation are being, as it thinks, frustrated by the courts, one finds disputes arising between the Executive and the courts and attempts to influence the courts, particularly from the point of view of judicial appointments. For instance, there was in 1937 the celebrated so-called "court-packing" Bill by which the late President Roosevelt attempted to alter the structure of the courts because he was not getting the decisions that, rightly or wrongly, he thought he ought to have had. There have been recent judicial troubles of this kind in the United States.
I should like to give one example of the way in which a Bill of this sort might easily create considerable problems for our Judiciary. One of the things this Bill seeks to do is to deal with the constitutional rights of an accused person in criminal proceedings. This has been a burning issue in the United States recently. Many of the decisions of the Supreme Court in favour of a very liberal approach—particularly, for instance, the Gideon case dealing with the rights of representation with which this Bill purports to deal—have created a "backlash" which has been raised in the context of the campaign for so-called law and order. Is one not entitled to ask oneself whether it is desirable to find our courts and Judiciary, famed for their independence, for their being totally aloof from political issues, brought into this kind of controversy? Is this not a matter more appropriately to be left to the wisdom of Parliament, to operate within the field of the sovereignty of Parliament, rather than to enable the courts to achieve objectives of this kind by a side wind and thereby find themselves ensnared in political controversy?
I am anxious to be as brief as I can; and one could say a great deal about the Bill in detail; but in view of the 306 fact that the noble Earl is not insisting upon any particular part of this Bill but is merely seeking to get the matter discussed in a Select Committee, I think it would be otiose to dilate on particular provisions. But I should like to make one observation of a more general character; because one must bear in mind that when one has extremely vague general principles embodied in a Bill of this sort, they often produce surprising consequences when left to the construction of the courts.
For instance, I should like to ask the draftsmen of this Bill whether they have considered that the sort of words employed in Clause 1, which so far as I can see are very largely taken from the American 14th Amendment, were used for over a century in the United States as the basis for the courts enforcing rigid laissez-faire economics. So much so, that in a celebrated case in 1905, despite the dissenting judgment of the celebrated Mr. Justice Holmes, who remarked that the 14th Amendment does not enact Mr. Herbert Spencer's Social Statics, the court struck down as void a statute restricting the hours of work of women in bakeries. And this was done in the name of freedom of property. One must remember, therefore, that there are considerable perils in introducing Statutes which contain these resounding general principles; for nobody knows where they are going to lead.
There are many points that one could remark upon in respect of the structure and detail of the Bill; but I spare your Lordships my further comments and conclude with the observation that it was said of Thomas Carlyle that he led his readers into the wilderness and then left them there. I cannot help thinking that a Bill of this kind would have just that effect. It would put the courts into a situation where they would have to decide issues of great complexity in the context of extremely general principles, and the public and the lawyers would be unable to predict what might emerge from their decisions. Therefore, although I entirely accept the benevolent motivation of the noble Earl, I cannot help but recall that "Hell is paved with good intentions"; and it sems to me that this is a measure which is fraught with no very obvious benefits and with some considerable perils. Therefore, speaking for myself, I feel bound to oppose it.
§ 6.40 p.m.
§ LORD COLERAINE
My Lords, I agree with other speakers that the noble Earl, Lord Arran, has given us a most interesting afternoon. I agree with my noble friend, Lord Cork and Orrery, that we ought not to leave it there. I should be prepared to follow the noble Earl into the Lobby in support of this measure. I would do so in the exercise of one of the two options which he offers. He said that we could either accept the Bill or give it a Second Reading and refer it to a Select Committee for the examination of all the problems associated with it. That is why I support the Bill. I do not do so because I think it a particularly good Bill. Although I am not a lawyer I am convinced of its practical imperfections by the arguments of my noble and learned friend on the Woolsack and those of the noble and learned Lord, Lord Stow Hill. But I think this a subject of such immense importance to all of us and to our future that we should not dismiss it out of hand; we should give the chance for further investigation by a Select Committee.
Obviously, my Lords, I do not want to make a long speech or to deal with everything that has been said in the debate; but I should like to address myself for a moment to what I think were the two main points made in his speech earlier this afternoon by my noble and learned friend on the Woolsack. He said that this Bill of Rights—I think he also implied any Bill of Rights—would be an anachronism. He said that Magna Charta, the Bill of Rights of 1688 and the Act of Settlement were all landmarks in the struggle between oppression and the rule of law. But does my noble and learned friend really believe that that struggle is ended? He does not. He has exposed to us his doubts this afternoon. He has told us that he sees serious danger, potentially, in a temporary majority in the House of Commons, especially under the constitutional system as we have it to-day in which, effectively, there is Single Chamber government. I think he admitted in his speech that that is what we have to-day. It seems to me, therefore, that, so far from being an anachronism, some kind of safeguard written into our Constitution is even more necessary to-day than in 1688 or at the beginning of the 18th century.
308 My noble and learned friend went on to say that a Bill of Rights involved—I think his words were "a logical constitutional contradiction". He posed the two principles of Professor Dicey, the rule of Law and the sovereignty of Parliament. He said that under our Constitution the sovereignty of Parliament must always win. I agree that there is that contradiction, but I wonder whether it is not one that could not, and ought not, to be resolved. Like most of your Lordships. I imagine, I was brought up to believe that an unwritten Constitution, such as we have, had immense advantages over the written Constitutions of other "tribes outside the law", like the Americans or the Australians or the Canadians. But looking back on my Parliamentary life I am inclined to think that my early education was wrong and that if you are to have Single Chamber government as, effectively, we have to-day, it is vitally necessary to have some kind of written Constitution.
My noble friend Lord Cork and Orrery was against a written Constitution, but he gave one suggestion about how the power of the Executive over the Single Chamber, the House of Commons, could be curtailed. There are other and more far-reaching methods. There are what I believe are called entrenched provisions. You can put into the Constitution provisions which shall not be altered without consulting the people as a whole, without a referendum. That system has worked perfectly well in Australia, and I believe it has worked in some of the States in America too. That is not undemocratic, because the final decision is with the people, but it does take the final decision away from the Cabinet and the Chief Whip and the Civil Service, and I think that is where we must look for danger of oppression in the future.
I agree with my noble and learned friend that these matters are not a fit subject for private legislation, and I think that the noble Earl, Lord Arran, would agree with that. But the method that the noble Earl has suggested, of giving the Bill a Second Reading and moving that a Select Committee be set up, means that the major issues which have been ventilated in the debate this afternoon could be considered. My noble and learned friend said that perhaps we ought to make changes in the Constitution, but it must be as a result of public discussion. 309 What better way of starting the discussion than to follow this debate with a Select Committee which, as I understand it, could call witnesses and, in the words of the noble and learned Lord, Lord Gardiner, could add to or subtract from the Bill and, as was said by the noble Baroness, Lady Wootton of Abinger, as well as tidying it up could tidy it away? What better forum could there be for the discussion of these very serious problems that face us as a nation to-day?
I have only one thing more to say, my Lords. My noble and learned friend said that in fact a Select Committee could not be this forum; it could only agree that a clause stand part, or it could delete "and" and substitute "for" and so on. The noble and learned Lord, Lord Gardiner, as I understood him, contradicted my noble and learned friend. This is a very great day in my life, even if it is not in the life of the noble and learned Lord, Lord Gardiner; because, for the first time, I am prepared to follow the advice of the noble and learned Lord, Lord Gardiner, in preference to that of my noble and learned friend who sits on the Woolsack.
§ 7.0 p.m.
§ LORD FERRIER
My Lords, when the noble Earl, Lord Arran, asked whether I would support him, I said that I would wait until I had heard the debate and this I have done. With your permission, my Lords, I would bring out one or two points which have not been mentioned but which I think are factors for our consideration. We have listened to coaches and horses being driven through the Bill with great skill and alacrity, but the impression which I have formed is that possibly there is not quite an understanding of the extreme sense of frustration which resides in the minds of a great many people in this country—simple people who, unlike the gentleman in the bowler hat on top of the bus, mentioned by the noble Lord, Lord Stow Hill, who would not be pushed around, feel that they are being pushed around and that they can do nothing about it. For that reason, I would follow the noble Earl into the Lobby in support of this Bill if only, as the noble Lord, Lord Coleraine, has just said, because the matter should be further considered and the perhaps roughly forged instrument that the noble Earl has placed in our 310 hands should not be just cast aside. The noble Lord, Lord Stow Hill, referred to the Act of 1968, against which I spoke and voted. Had a Bill like the Bill we are now discussing been on the Statute Book then, that measure could not have been laid before Parliament.
As for the sense of frustration that people feel, I wonder whether noble Lords appreciate the strong feelings that exist in many places in Scotland about the attack upon fee-paying schools. Many people in every walk of life find thrust on them the fact that they might not be allowed to choose how their children should be educated, no matter what they wanted to contribute to the cost.
There is another thing which may be new to your Lordships, as it was to me. Something which the noble Earl, Lord Cork and Orrery, said makes me mention it. In a discussion I had the other day with a simple but shrewd working man in Scotland, he told me that he had no banking account. I asked why he did not use the Giro. He replied, "What? Me use the Giro? Not on your life. I am not going to give my money and resources into the hands of people who have plenty of information about me through the tax authorities." This was a new one to me, but it brings out the fact that there is a wide sense of being pushed around, with this grim shadow of an information bank behind it and only 14 years to go to 1984.
§ 7.4 p.m.
§ THE LORD CHANCELLOR
My Lords, I can speak again only by leave of the House, and if that leave is given, as I rather hope it may be, I will promise not to outstay my welcome if I can possibly avoid it. I hesitate, in the light of the speech of my noble friend Lord Cork and Orrery, to say that we have had an interesting afternoon. On the other hand, if I were to say that we had had an extremely dull afternoon, I would offend everybody else. So I will say that we have had an interesting debate. This is not a winding-up speech in the ordinary sense, because on Private Members' Bills it is not the custom of the Government spokesman to wind up in the same way as when he deals with a Government Bill. But I must draw attention to the almost startling piece of Parliamentary oratory which fell from the noble Lord, Lord Stow Hill. I think that when your 311 Lordships read his speech to-morrow morning you will say that the age of oratory is not dead. It really was a moving and remarkable piece of Parliamentary English.
At the end of the day, we have to decide what to do. I should like to say at once that my noble friend Lord Coleraine is perfectly right in saying that the noble and learned Lord, Lord Gardiner, gave a more accurate account of the limitations of a Select Committee than I did. I said that I spoke subject to correction. I sent out for information, and I find that I gave too restrictive a view of the Select Committee's powers. I have given the noble Earl, Lord Arran, the particulars of my information. But I still think that the Select Committee is much too restricted a body to examine this important subject and that this Bill is far too restrictive in influence, even on a Select Committee. So I think that the point I made is none the less a valid one, despite the fact that what I said about the degree of its restriction should not be relied upon as accurate.
Having said that, I would also say something that I should not have said had this Bill been Government business and I had been making an ordinary speech by way of reply. Three noble Lords at least, probably more, have referred to the danger of the computer bank. I should like to point out that this is one of the things this Bill does not think of safeguarding against, it has nothing whatever to do with this Bill. Nevertheless, this is a fact which the Government are taking extremely seriously in their thought. This is not a Party point, and no doubt the noble and learned Lord, Lord Gardiner, would be saying the same thing if he were standing where I am standing now.
My Lords, Government Departments have over the years—and this is a matter of traditional practice—worked out effective procedures which ensure that information they hold about individuals is safeguarded against unauthorised or improper disclosure. What needs to be done now is to make sure that equal or more effective safeguards are applied to information held on computers. The Government have set in train a comprehensive survey to find out by the end of this year what categories of information 312 are held, or are likely to be held, in the computer systems of each Department and the rules governing its storage and use; and we shall then proceed to decide what shall be done. Of course, Parliament will be kept informed.
Outside the Government there are other computer banks over which we have no control and which equally would not be affected by this Bill. But they would, I think, unless I am mistaken, be within the terms of reference of the Younger Committee, which is sitting and which I think should be allowed to proceed upon this particular inquiry. Despite talk of 1984, I should not like the House to leave this debate with the impression that the Government do not take very seriously that part of what noble Lords have said, and do not sympathise very much with what noble Lords are saying. But I think I am entitled to point out that it is not contained among the things at which this Bill is aimed, nor could this Bill be used as an instrument for safeguarding the rights of the individual against the computer. Therefore it really serves as an illustration of my general point in opening about the ineffectiveness of this method of approach, rather than as a criticism of what I was saying.
I do not resile from what I have said, in spite of the criticisms of my noble friend Lord Coleraine. Nor do I think that the battle against tyranny is over. On the contrary, in the 20th century it has proved sharper than ever. But it has moved on different frontiers and in different ways. What I sought to question was whether internally to our own country this particular method of approach—that is to say, a re-statement of general principles, the vast majority of which would command agreement on all sides of the House—had any validity for the present, when the problem was how to enforce it and to what extent those principles need to be re-stated.
I do not believe that this Bill offers any progress in that line at all, and I am afraid that I was strengthened, rather than weakened, in that conviction after listening to the amusing and witty speech of my noble friend Lord Cork and Orrery. There was, it seemed to me, a logical fallacy in the bulk of what he proposed, because he came to the conclusion (contrary to what I said verbally, which I think reflected the same kind of anxiety 313 that I was seeking to express) that Parliament was no longer sovereign, and that that was what was wrong with the present situation. His principal remedy was that by an Act of Parliament that would be put right. But ex hypothesi if that were the problem—and I do not think it is—an Act of Parliament is the only thing that could not put that right, because as our Parliament was no longer sovereign and effective such an Act would be in itself an ineffective instrument.
When he solemnly proposed a veto on the Three Line Whip, I am bound to say to him that I do not think he could have put that forward seriously if, like me, he had served in the House of Commons for the greater part of his adult life. The fact is that if you put in an Act of Parliament that the Three Line Whip was to be vetoed, first of alt it would be stopped by a Three Line Whip before it started; and secondly, if by some misfortune it got through, it would be wholly ineffective, because as soon as this Committee of three, four or live wise men but none of whom were Members of Parliament, invoked the rule by saying: "This is a subject on which there should be a free vote of the House", that would be as good as a wink to every one of the 630 Members of the House of Commons to vote on his strict Party lines under the strict dictates of his own conscience. With respect to my noble friend, this betrays a degree of political naïvety which almost left me speechless.
§ THE EARL OF CORK AND ORRERY
If my noble and learned friend will forgive me, I think I am allowed to say something. He says that if such a Bill to forbid a Three Line Whip were introduced in another place it would be instantly forbidden by a Three Line Whip, which presumes, I imagine, also ex hypothesi, that it would be introduced by the Opposition. But supposing it were introduced by the Government. Would it then be defeated by the Three Line Whip?
§ THE LORD CHANCELLOR
Ex hypothesi a Bill to undermine the whipping system of the Government Party would not be introduced by any Government. That, I should have thought, hardly needed saying; and this again betrays, I regret to say, on the part of 314 my noble friend both a logical inconsistency and a certain political naivety. If the facts are that Whips are in control of the Government, the last thing they would introduce would be a provision to destroy their own power. I should have thought that that would stand out a mile.
It is very plausible, with great respect, to say with my noble friends Lord Coleraine and Lord Cork and Orrery: "This is being very ungenerous and churlish. Let us get action at last. This thing has been debated ad nauseam, and you have never done anything at all. This Bill, we know, is rotten, and the proposer says that it will not do. But let us refer it to a Select. Committee in the hope that they may catch some fish in the river." Supposing the river has no fish, and supposing one thinks that this line of approach is hopeless, who is going to serve on this Select Committee? I have heard no volunteers. Are we really going to impose upon some of our number the invidious duty of looking into a Bill which is no good in itself, to see whether some other Bill, about which a large number of Members have expressed rather more than doubts as to whether anything on this line would be any good at all, can be devised?
Supposing one abandons any theory of restrictions on a Select Committee on this Bill and simply answers the question of my noble friend Lord Coleraine about whether this is the appropriate forum (and here I may be replying to something that the noble and learned Lord, Lord Gardiner, said), I do not think I am saying anything different now from what I said in Opposition. What I said in my speech to PEST, which was the foundation of the various other articles that I wrote about it, was that nothing short of a constitutional conference in which all the great interests of the country were represented, presided over or opened by Her Majesty, would solve a constitutional problem of this kind. And here we are being asked rhetorically by my noble friend Lord Coleraine whether a Select Committee of the House of Lords would have this absolutely galvanising effect. I do not think it would: and that is the answer. I do not think you can subvert the rule of the Queen in Parliament, or veto Three Line Whips, or destroy computer banks, or 315 do any of the things which noble Lords would like to do (some of which I should like to do myself) as a result of a Bill of Rights of this kind, even after the deliberations of a Select Committee confined ex hypothesi to this House. I just do not think it will do.
I hope that the noble Earl, Lord Arran, will not think that I was trying to make captious, ungenerous, pedantic or sea-lawyer-like objections to his efforts, which I think we have all enjoyed. We all feel for him about it, because we share the sense of frustration, as my noble friend Lord Ferrier has said. If, at the end of the day, you are convinced that this is not the way, and that a Select Committee, after spending hours and hours of theft time, would arrive at nothing worth translating into practice, what is an honest Lord Chancellor to do but to say so, and to advise people to vote accordingly: which is against the Second Reading of the Bill?
If the noble Earl, as I rather hope in the light of criticisms which have been made, withdrew the Bill, I should be happier still. Then, if he thinks that an inquiry into individual rights by a Select Committee of this House, untrammelled by proposed legislation of an admittedly unsatisfactory kind, could do good, he has a very easy course in front of him: it is to approach the Leader of his own Party and the Leaders of the other Parties to see whether this is the general view of the House. If it is, I should be the last to stand in the way, provided that an adequate number of suitable volunteers for this task were available from the ranks of your Lordships. I can only say as honestly as I can that I do not think this Bill will do.
§ LORD CROWTHER
My Lords, before the noble and learned Lord resumes his seat, may I ask him a question about the interesting announcement that he made in the early part of his speech with regard to an inquiry into the use and possible abuse of computers in Public Departments? The present terms of reference of the Younger Committee specifically exclude from its consideration any possible invasion of privacy by agencies of the Government. May we take it that that exclusion will, or may, now be removed?
§ THE LORD CHANCELLOR
My Lords, I am not authorised to give an answer to that question, but I think the noble Lord may have misunderstood what I said. What I said was that the Government were at the present stage instituting their own inquiry into the range and size of their computer banks and how they are going to prevent their misuse; and that we should then make an announcement as to what we intended to do about our own computer banks. That does not exclude extending the terms of reference as the noble Lord suggested. But my reference to the Younger Committee was exclusively about private computer banks not held by the Government. And I should have thought, subject to correction, that that was already within their terms of reference.
§ THE LORD CHANCELLOR
I am glad to hear the noble Lord, Lord Byers, who is on the Committee, confirm what I say. The Government computer banks are the subject of a Government inquiry which we hope will be completed by the end of the year.
§ LORD CROWTHER
My Lords, I hope that I may have the indulgence of your Lordships to ask a supplementary question. If it should appear from this official Governmental and private inquiry that there is something to investigate, might one hope that this would then be remitted to independent investigation either by the Younger Committee or by some other means?
§ THE LORD CHANCELLOR
My Lords, I am grateful to the noble Lord for asking the question which I certainly will take on board", if I may. I am not authorised to go further to-night. As your Lordships know, if I answer at all I answer on behalf of the whole Government, and I am not in a position to give a reply to this. I will convey to my colleagues what the noble Lord has said interrogatively to me and I am sure that they will take note of such an authoritative question, if questions can be authoritative.
THE EARL OF ARRAN
My Lords, may I ask the noble and learned Lord whether I heard him correctly in his latest and most interesting offer? Was he 317 suggesting that the three Parties should get together and decide between themselves whether a Select Committee could be found to serve on this subject?
§ THE LORD CHANCELLOR
My Lords, I was suggesting to the noble Earl that I do not think that this Bill, as a Bill, could be of any more use to the House than as providing the subject for this afternoon's debate. That is to say, I do not want it to get a Second Reading and therefore I do not want it to go into any Committee, either a Committee of the Whole House or a Select Committee.
I gathered, irrespective of any mistake that I may have made about the powers of a Select Committee on the Committee stage, from what the noble Earl said—and I had the same impression from the noble Lord, Lord Coleraine—that he wants a Select Committee of this House to inquire generally as to the rights of the individual, and how they can be protected. This is a quite different proposition. I said that if the noble Earl withdrew the Bill, or it was defeated on Second Reading, he had a very clear course of action open to him on which I would not stand in his way. That was to see, through the usual channels, through the Leader and Whips of his own Party, and the corresponding organisations in other parts of the House, whether there was a general feeling that this ought to happen. If there were such a feeling, I have no doubt that the House could do it and would do it. It would not be for the Government to stand in their way. This is a question for the House, to be operated through the usual channels. It was not, in the ordinary sense, an offer, but it was an expression of opinion which I hoped would meet with fairly general approval.
THE EARL OF ARRAN
My Lords, may I ask the noble and learned Lord whether that matter would be debated? Would the matter of whether or not a Select Committee should be set up come before the House as a whole, or would it be decided through the normal channels?
§ THE LORD CHANCELLOR
My Lords, it is not for me to tell the House. I should have thought that the logical corollaries to what I was saying were that if there was a general feeling that there ought to be a Select Committee, some- 318 one would move for one. It would then be debated in the House, and either the House would set up such a Select Committee or it would not. If it did I do not think it would be for the Government to do anything, except to assist the House in the elucidation of the advantages and the disadvantages. It would certainly come before the House, because you cannot set up a Select Committee unless you have a Motion before the House; so I think there is every chance that further debate would take place.
THE EARL OF ARRAN
My Lords, may I ask the noble and learned Lord what is perhaps an improper question? Would he personally, quite apart from his Governmental responsibilities, regard a Committee of that sort with benevolence?
A NOBLE LORD: Do not push it.
§ THE LORD CHANCELLOR
My Lords, I think perhaps I had better reserve my answer to that question, because it would probably be for the Leader of my Party to govern my benevolence up to a point.
THE EARL OF ARRAN
My Lords, the noble and learned Lord will surely see that that is extremely important. If we are simply going to have a Motion, and he gets up and speaks non ex cathedra, but from the side of the Woolsack, saying that he thinks that that is a jolly bad idea, it is obviously going to kill the Bill dead.
§ THE LORD CHANCELLOR
My Lords, if the noble Earl will be comforted thereby, I will undertake not to speak at all, whether ex cathedra or otherwise. On the other hand, the usual channels can usually ascertain what the feeling of the House is after some discussion. If it was discovered that there was either a general feeling that the subject ought to be debated, or that a Select Committee ought to be set up, it would not be any good my speaking ex cathedra for or against. The House can do it, or not do it, if the noble Earl persisted in the face of discouragement. I certainly would not do anything to discourage him: I doubt if I could overcome his optimism.
§ 7.25 p.m.
THE EARL OF ARRAN
My Lords, the noble and learned Lord is too kind. May I say some words about the debate which 319 will not take long? I have listened to the debate this afternoon, and frankly on occasions I have been shocked at the levity which certain Lords chose to adopt to destroy certain clauses of the Bill. That was not to the best advantage or to the credit of the House. I found certain statements, notably from the noble and learned Lord on the Woolsack and the noble and learned Lord, Lord Gardiner, deeply impressive. I did not enjoy hearing the Bill torn limb from limb. I made it clear that it was my intention that this was only a starting point—a point of departure. Others thought it was a good idea just to destroy it. That was a great pity; it lowered the tone of our debate. But it ended up all right, thanks to the noble and learned Lord. I was at one moment very crestfallen, not only for myself, but because this is a serious matter. I thought that sometimes there was an atmosphere of levity which I think did not please the House any more than it pleased me. I do not know what I do now, my Lords, but I think I must withdraw. With your Lordships' leave, I will withdraw the Motion and the Bill.
§ Motion for Second Reading, by leave, withdrawn.
§ Bill, by leave, withdrawn.