BILL OF RIGHTS BILL [H.L.]

HL Deb 25 March 1976 vol 369 cc775-817

3.26 p.m.

Lord WADE

My Lords, I beg to move that this Bill be read a second time. The purpose of the Bill is to provide that the principles set out in the European Convention for the Protection of Human Rights shall have the force of law and shall be enforceable by action in the courts of the United Kingdom; that is to say, shall be part of our domestic law. As your Lordships are aware, the Convention was approved by the Council of Europe in 1950. It came into force in 1953 and was ratified by 10 countries. It was ratified by the United Kingdom in 1951. Since 1966 individual complainants in this country have had the right, subject to rules about admissibility, to petition to the European Commission and ultimately to the Human Rights Court in Strasbourg. Eight countries have gone further and have incorporated the Convention into their domestic law. The United Kingdom has not yet done so. It has been argued by some jurists that the ratifying of the Convention and the incorporation into domestic law should be regarded as an obligation in the light of the wording of Article 1, which reads: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention". This Bill aims to give effect to that obligation.

If I might turn for a short while to the broader issue of this great human rights debate, I must first acknowledge that this is not the first time this subject has been discussed in this House. There have been a number of such debates in both Houses of Parliament; so far as this House is concerned, from the late Lord Reading's Preservation of the Rights of the Subject Bill 1947, and the late Lord Samuel's Liberties of the Subject Bill 1950, up to the present day. The only reason for not attempting to review the past history of our debates on this subject is that I do not wish to trespass unduly on your Lordships' time. But I must make it clear that I am indebted to members of all Parties and to both Houses for the contribution that has been made to the subject, and I must also acknowledge that Mr. Alan Beith, in the House of Commons, introduced, under the Ten-Minute Rule, on 15th July 1975, a Bill in similar form to the one which I am now putting before your Lordships. In that case Parliamentary time did not permit the Bill to proceed.

In recent years there has been growing interest in the whole subject of a Bill of Rights, much discussion in legal and political circles, and some very important observations on this issue, notably from Lord Justice Scarman in the Hamlyn Lecture in 1974. There is general or at least widespread agreement about the need for something more to be done in regard to the protection of human rights and fundamental freedoms, to use the words of the European Convention. There is, however, some difference of view as to the next most practicable steps to take. I do not propose to go over all the arguments that have been put forward and deal with them point by point, because obviously that would take up too much time. Moreover, in opening this debate it would be presumptuous of me to do so. However, I have a few general observations to offer.

I was brought up to assume that the absence of a written Constitution was a great asset to this country; that it was far better to rely on case law supplemented by Statute Law providing specific safeguards for specific abuses. But there has been a change of attitude in recent years. It may be said that since joining the European Community we are already half way, or at any rate a quarter the way, to a written Constitution. In any case, we shall have to face up to this when devolution for Scotland and Wales is introduced. I am not, however, raising this whole subject of a written Constitution this afternoon for I think it would be wiser to deal with that in the context of devolution. Then there is the closely related subject of entrenched clauses. Again, we shall have to face up to this when we embark on the subject of devolution. However, I do not think that that is an adequate reason for delaying the passing of this Bill. I am very conscious of the difficulties involved in introducing legislation which attempts to bind future Parliaments and—to express my personal view—I prefer what I call the psychological safeguard whereby certain principles, such as those contained in a Bill of Rights, would be deemed to prevail over all future legislation unless specifically stated to the contrary, and I will return to that point later.

The next general proposition I put forward relates to the wording of the European Convention. It has been said that the clauses were drafted in the immediate post-war period, in a different climate, and that in some respects the wording has become dated. It must be remembered, however, that these are principles. The circumstances may change but the general principles remain valid, and in adopting the wording of the European Convention there is the further advantage that the wording has been widely accepted. Incidentally, the basic human rights that have been spelled out in the European Convention are derived from principles laid down in British courts; British lawyers had a very large part to play in drawing up the European Convention. I should make a general point relating to Northern Ireland. I do not wish to prejudge the debate on the Bill of the noble Lord, Lord Brockway, which is to follow, but I think it preferable that a Bill of this nature should apply equally to all parts of the United Kingdom. It is very difficult to provide separate rules for different parts of the United Kingdom, but of course I will listen to what Lord Brockway has to say.

I come to the details of my Bill, which is very short and the major part of which is the Schedule setting out the provisions of the European Convention and Protocols. There are four clauses. The first provides that the Convention: …shall without any reservation immediately upon the passing of this Act have the force of law, and shall be enforceable by action in the Courts of the United Kingdom. Clause 2 provides that in the …case of conflict between any enactment prior to the passing of this Act and the provisions of the…Convention and Protocols, the…Convention and Protocols shall prevail. Clause 3 provides that in the …case of conflict between any enactment subsequent to the passing of this Act and the provisions of the…Convention and Protocols, the…Convention and Protocols shall prevail unless subsequent enactment shall explicitly state otherwise. Clause 4 provides that the Bill extends to Northern Ireland. I have certain observations to make about the wording of the Bill. I am assuming that the word "enactment" in Clauses 2 and 3 will cover delegated legislation derived from an Act of Parliament and Resolutions of both Houses derived from an Act of Parliament and requiring interpretation in the courts. If the word "enactment" is not sufficiently wide, this could be dealt with in Committee and, if necessary, a definition clause inserted.

Another point regarding the wording. I have used the words: …unless subsequent enactment shall explicitly state otherwise That is in the case of future legislation. I do not believe that Members of Parliament of either House would be so cynical as to allow some phrase to be inserted in a large number of measures which would exclude the terms of this Bill and the effect of the Convention on Human Rights being treated as part of our law. If words were inserted to exclude the application of the Convention, this would be taken as a warning and I think that Members of Parliament would be very reluctant to pass a number of measures with such exclusion; I think it would put Members of Parliament on their guard. Therefore I believe that the use of this expression in my Bill would—at any rate, I hope it would—be effective.

I recognise that the Bill, if passed, might reduce the opportunities for appealing to Strasbourg, but in this regard one must consider the delays and expense involved in taking a case to the Commission and the European Court and the embarrassments that are caused to the United Kingdom when it is criticised in Europe for having broken the spirit or the words of the Convention of Human Rights. I should like to quote from a letter to The Times of May 22nd 1975 from a relative of mine, Professor H. W. R. Wade, of St. John's College, Oxford. The letter reads: Sir, Lord Hailsham's stimulating articles of May 12th, 16th and 20th will have strengthened the case for a British Bill of Rights, which already has Lord Salmon and Lord Justice Scarman among its eminent advocates. One measure, surely overdue, is to incorporate into our domestic law the European Convention on Human Rights, by which we have long been bound internationally. If, like other countries, we had done this, we would probably have been snared the humiliating proceedings against this country in Strasbourg in recent years, since the cases would have come first into our own courts and their decisions would in all likelihood have given satisfaction Professor Wade goes on to discuss the subject of entrenched law, but I quote only the first paragraph of his letter because it states so succinctly the point which I am endeavouring to make and because it strengthens my case for asking for this Bill to be read a second time.

I am aware of the Motion that has been tabled by the noble and learned Lord, Lord Hailsham, and I shall listen very attentively to whatever he has to say. It would probably be best if I were to defer any comments on that Motion until I have heard what the noble and learned Lord has to say. To sum up, there are at least five possible courses of action. They are not all incompatible with each other. One is to draw up a written Constitution incorporating a Bill of Rights. That would be a formidable task. Secondly, we might attempt to achieve agreement on a newly drafted Bill of Rights for the United Kingdom. Some favour this course, but it would require a great deal of careful consideration. I have no objection to that course on principle, but I would point out that if this Bill is passed there will be nothing to inhibit the introduction of further legislation to expand and supplement the principles of the European Convention so far as the United Kingdom is concerned. Furthermore, it might be worth while considering whether such supplemental legislation could usefully incorporate some of the decisions already made by the Human Rights Court.

To return to the possible courses of action, we could establish a United Kingdom Commission of Human Rights, as suggested by Mr. Sam Silkin in the House of Commons on 2nd April. 1971, to investigate, report and recommend but not to enforce. Then again, as a fourth possible course, we could do nothing at all and leave things as they are. Fifthly, we could incorporate the European Convention into our own domestic law as proposed in this Bill.

The main considerations which affect my mind are that we should not do anything less than other ratifying countries and also that the delays and expense in bringing a case to the Commission and ultimately to the European Court are very serious. While they may be inevitable, they are regrettable. In the Golder case, which was concerned with the right of a prisoner to have access to his solicitor and to correspond with a solicitor, the proceedings lasted five years. Surely, if it is right for this country to ratify the Convention as, indeed, it has done, and if it is right that an individual complainant should have the opportunity of taking a case to the European Court, or at any rate of having his case heard and decided, it cannot be right that he should have to wait five years before obtaining a decision.

There is one other relevant consideration. It is this. It used to be assumed that adequate protection for human rights and the preservation of individual liberty against the abuse of power could and would be provided by the development of case law, coupled with Statute Law. But there is a growing consensus of opinion that the individual citizen today lacks the protection which, in a modern, civilised community, he needs. Some further safeguards are required. The development of the Common Law is too slow and the mass of modern legislation is so overwhelming that that in itself may be a danger against which the individual needs protection. Hence, the growing interest in the subject of a Bill of Rights.

Mr. Michael Zander, in his admirable litttle book, A Bill of Rights, published in 1975, sets out the pros and cons. He comes down broadly in favour of the view which I have been expressing this afternoon. In his conclusion, he writes, with commendable moderation, as follows: A Bill of Rights is desirable not because human rights are grossly abused in Britain, nor to provide against the danger of future tyranny. The former is untrue; the latter unlikely Here, may I insert my own comment? I do not feel that we should regard the possibility of future tyranny with too much complacency. Mr. Zander goes on to say: The case for a Bill of Rights rests rather on the belief that it would make a distinct and valuable contribution to the better protection of human rights I trust that, in the desire for a better protection of human rights, both now and in the future, your Lordships will see fit to give this Bill a Second Reading. I beg to move.

Moved, That the Bill be now read 2^a—(Lord Wade.)

3.49 p.m.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, I am sure that the House is indebted to the noble Lord, Lord Wade, for introducing this important proposal and for doing so in the form of a Bill which gives us at any rate terms of reference of fairly precise boundaries. The particular form which the Bill takes has been recommended in a serious way by a number of reputable authorities. I can remember the last time when I had to discuss this subject. Again, we were discussing a Bill called a Bill of Rights but of a very different type. It was proposed by the noble Earl, Lord Arran, again from the Liberal Benches, and I was then sitting on the Woolsack. I have been trying to find the debate in question in Hansard but have failed to do so. During the course of the debate the noble Baroness, Lady Gaitskell, intervened to ask why we could not have the European Convention embodied in our domestic law. Since then it has been, I think, the preferred solution in Mr. Zander's pamphlet. It has been produced out of Transport House in a little document called, A Charter of Human Rights, which I have here, and the proposal is that we should embody the European Convention, by which we are already bound in international law, in our domestic law.

For various reasons I do not think that, in this form, it will quite do. That does not mean that I qualify in any way my sense of gratitude to the noble Lord, Lord Wade, for putting it forward. The House will see that there stands in my name a Motion to refer this Bill to a Select Committee. Whether I move that Motion will depend on the reply of the Government. We are looking forward to hearing the noble Lord, Lord Harris of Greenwich, but I am sorry that the noble and learned Lord the Lord Chancellor is not also taking part in the debate. The reason I tabled the Motion—and this is closely connected with some of the observations I wish to make about the Bill—is that I do not believe that a Private Member's Bill, altering the British Constitution, is really on.

I think that it is a much more tricky task than the noble Lord, Lord Wade, has given the House any idea of. It will alter, among other things, the whole relationship between the Judiciary, the Executive and the Legislature. Before I would legislate a proposal of this kind—there are other reasons why I might be reluctant to do so—I should like to have evidence from the Judiciary, the Parliamentary draftsmen, the civil servants, the trade unions and other bodies, as to how they think that this proposal would operate in practice. It was for that reason that I put down a Motion proposing that instead of pursuing the Bill to the ordinary Committee stage on the Floor of the House, we should have a Select Committee to take evidence and to report to this House. I still think that if we are to go on with the Bill in this form this would be the way to handle the matter.

The noble Lord referred, rightly, to the delays of going to the European Court. It is a slow business, and he will find that in every European system of law the legal process is rather slower than ours. Sometimes people complain of the law's delays in this country. Broadly speaking, the law's delays in this country are very much less than in any other country in the world; that is, if both parties want to get to the seat of judgment. They are not always so keen to get to the seat of judgment as they ought to be. What I believe the noble Lord has not quite taken on board is that the process provided by this particular formula will take longer, and not less long, than the existing process of going straight to the European Court. If the noble Lord will, for instance, look at Article 26 of the European Convention, which he has conveniently placed as a Schedule to his Bill, he will see that one cannot go to the European Court. There is an absolute bar until one has exhausted all the remedies in this country.

Let us take a concrete case. This week we were dealing with a conscience clause in the Trade Union and Labour Relations (Amendment) Bill. I claimed, rightly or wrongly—noble Lords opposite said wrongly; I still think rightly—that that was an open breach of the European Convention which we are discussing today. Let us say that a trade unionist is sacked, in the context of a closed shop, for refusing to join a trade union on what he claims are grounds of conscience other than religion. If this Bill becomes law he cannot go to Brussels. That is one thing which is quite certain. He must bring an action for unfair dismissal before the Industrial Tribunal. The Industrial Tribunal will say, "No, look at this Act which you passed in 1976."—it will, I believe, receive Royal Assent very shortly—"It says that conscientious grounds for not joining a trade union are no good" The man will reply, "Oh, but look at Lord Wade's Bill of Rights. He has passed it. It says that previous Acts of Parliament, if they break the Bill of Rights, are void to that extent."

So there will be an issue in the English courts as to whether I am right or whether noble Lords opposite are right. Without doubt on a matter of this importance it will go to the House of Lords. For the first time a subject will have challenged the validity of an Act of Parliament under the new Bill of Rights. It will take months: or will it, perhaps, take years? Whether or not the subject involved will be legally aided I am not sure, but during the whole of that time he will be denied the seat of justice in Brussels, which is the only place where he can ultimately get relief. I do not believe that that will do. I think it is a great mistake—but this is a pure Committee point—to incorporate into this Bill at all Article 19 and those following in the Convention but it will not alter the validity of the point I am making about Article 26, because Article 26 is part of the European Convention, whether or not it stands as part of this Bill.

So there are very considerable doubts, at least in my mind, about the wisdom of this formula. Furthermore, it is true, as the noble Lord, Lord Wade, properly pointed out to the House, that a number of countries—I think he said eight—adherent to the Convention have done the very thing which he proposes to do this afternoon. Well, why not let us do it, too? That is a very powerful sounding argument. The answer is not an easy one to put forward, but I believe that it is a serious one. Given the kind of legislative and judicial tradition of Continental countries, it is very easy to do this kind of thing, because those countries have a long tradition of importing general principles into the detailed articulation of their legislation. It is sometimes very difficult for English lawyers to understand the effect of it.

I remember in the Appellant Committee, just after I ceased to be Lord Chancellor, we were hearing an appeal on double nationality which depended upon the interpretation of the law of Germany in relation to the status of an individual citizen. It was extremely difficult to translate what was being done in various courts in Germany into terms of what an English judge would do in relation to our own law. I am perfectly certain that both Professor Wade—no relation, I believe to the noble Lord—

Lord WADE

A cousin.

Lord HAILSHAM of SAINT MARYLEBONE

A distant cousin. Both Professor Wade and Mr. Zander have gravely underestimated the technical difficulties of taking—I forget how many volumes there are just beneath this Table—say, 20 or 30 volumes of Statutes, each more than 1,000 pages long, and saying in relation to any given section, which may come at any given time, that it is Inconsistent with the Bill of Rights. It has to be interpreted again by the court in relation to this particular section, because the whole of our tradition of judicial interpretation of Statutes, and the whole of our legislative tradition of passing them, proceeds on different assumptions from this kind of thing.

I should not like to pass this formula until the Judiciary and the Parliamentary draftsmen had given evidence to a Committee of some kind. That is not said for the purpose of delay. It is said because I am genuinely apprehensive of the dangers of applying this kind of formula to the English legislative and constitutional position. So those are two important grounds upon which I think we should hesitate before trying to push this Bill on to the Statute Book.

Now I should like to say one or two other things about Bills of Rights generally in relation to this proposal, because I think that these are never fully appreciated by enthusiasts for Bills of Rights. Show me a Bill of Rights and I will show you escape clauses in it. There must be. There are questions of public security; there are reservations relating to public health; there are all kinds of reservations dealing with almost every field of public policy. Show me a nation with a Bill of Rights and I will show you a nation which has fewer actual human rights than England or Britain because the escape clauses are used, often quite ruthlessly, by the Executive of the time. It is therefore to some extent a bogus protection. I want to come to a conclusion about this in a moment, but one must not exaggerate the value of the protection given by any document of this kind.

In the main, speaking in relation to English constitutional law, the kind of general assertion of rights which is contained in our own Bill of Rights 1688 and in our Magna Carta, which is still on the Statute Book in the 1297 recension, and in the Act of Settlement, is asserted in such general terms that in practice it cannot be relied upon in relation to any given Statute. It belongs to an earlier and less sophisticated tradition than we now move into. I made this point in November 1970, and I reiterate it today. I believe we need entrenched clauses in our Constitution. I believe we need a written Constitution. I should like to see a written Constitution in which there were devolved Assemblies, in which there were certain kinds of rights entrenched and in which the Judiciary had the powers to strike down legislation (as I believe the American phrase is) which offended against certain prescribed prohibitions. I should like to sec the Constitution itself have provisions for its own amendment, so that it was not absolutely rigid and from time to time, as experience went on, you could improve it. But I do not believe that it is in fact possible to deal with these things piecemeal.

This particular formula applies what the noble Lord has described as a psychological sanction; in other words, it does not have a sanction at all except that of being slightly unpopular if you put at the end of a Bill: This Act is intended to operate notwithstanding the Bill of Rights". But is he justified in thinking that either a Government of the Liberal Party, if that were possible, or a Government composed of the Party opposite, or perhaps a Government composed of the Party of which I am a member, would hesitate, as one of its main programme Bills, to do this very thing? It so happens that I can give the noble Lord some evidence to the contrary. I did not expect to be able to, but I can. It is the Labour Party official document, published by, I think, Transport House, but certainly published by the Labour Party, London, called A Charter of Human Rights. It in point of fact proposes the exact formula contained in the noble Lord's Bill, and they were facing the very problem which the noble Lord was discussing when he spoke of the psychological deterrent. They say that perhaps some wicked Tory would seek to strike down their proposed legislation, which was the noble Lord's Bill, on the grounds that, for instance, legislation on comprehensive education was contrary to the article in the Convention which gives parents a certain right to control their own children's education.

I am very grateful for the suggestion from the Labour Party; it had not previously occurred to me. But whether it is right or wrong, I do not propose to argue this afternoon; I merely draw attention to the sentence in the pamphlet in which the possibility is dealt with. They say: Finally, in the unlikely event that any United Kingdom judge ruled against comprehensive education, the Government would be able to reverse the decision by legislation". So how far on would you be with your psychological deterrent? Of course, it would not make any difference to our international obligations. We are still bound by the European Convention, which the authors of the pamphlet do not seem to care about and do not seem to understand, so we could be taken to Brussels if we did it; but the immediate reaction of one of the principal supporters of this formulation, representing one of the two great Parties in the State, is, "If we do not like what the Bill says, we will reverse it by legislation when the judge has pronounced upon it".

So we really deceive ourselves if we think we can tackle the problem of human rights without tackling the second rule of our Constitution, and the second rule of our Constitution is the omnipotence of Parliament. It is called the sovereignty of Parliament, but it means the legislative omnicompetence and omnipotence of Parliament. I do not believe that you can do this piecemeal. It is undermining one of the two pillars upon which the Constitution is based. They are the rule of law and the omnicompetence and omnipotence of Parliament, and it is undermining the second pillar. It so happens that I want to undermine that second pillar. I want to do it by devolved Assemblies, I want to do it by putting the Judiciary in a different position and I want to see entrenchment; but if you do not do that, you do nothing. Having in rather a prissy way condemned and rejected the proposal, if it was ever made—and I am now quoting— accepted by, amongst others, Lord Hailsham and Sir Keith Joseph, which envisages", so they say, a Bill of Rights entrenched in the Constitution by a requirement that it be amended or repealed only by a stated majority. This would indeed limit Parliament's freedom of action especially now that small Parliamentary majorities are more common than in the past"— we are told that, under this formula, Parliament would remain "top dog".

My Lords, I do not want there to be any "top dogs" in this country, and that is where I differ from the proponents of formulae like this. This is where I differ from the Labour Party's pamphlet, and this, I am afraid, is where I must say that I differ from the Bill of the noble Lord, Lord Wade. I want this country to be governed by the people for the people, and it should be government of the people; and putting "top dogs", especially when they happen to be elected by rather a small minority, in charge of the people is not government of the people by the people for the people—it is an elective dictatorship. Until you get rid of our over-centralised bureaucracy; until you get rid of our over-centralised nationalised industries; until you get rid of our totally ineffective Second Chamber and substitute something better; until you insist that no Legislature, however elected, has the right to breach the fundamental rules of justice and decency, and put the thing, as every other civilised country has done, under the rule of law, you are simply toying with this problem.

I know, of course—and Mr. Zander refers to it at the end of his pamphlet—that these things can be overruled by force, by actual tyranny. I agree with the noble Lord, Lord Wade, that one should never be complacent about the possibility of actual tyranny in one's own country; but I do not think that comes into the argument at all this afternoon. Any Constitution can be overthrown by force and the right of preserving it depends, in the end, upon the bravery and independence of individual citizens acting individually and collectively. I do not think we need worry about that. But I believe that this formula will not do; it is a delusive protection, and I should want to see something far more comprehensive than this before accepting it. Until that time, I believe that the protection afforded by the European Convention itself, preserving direct access to the Convention when it is breached, instead of imposing a bar between it and ourselves—a bar consisting of the English or Scottish courts, going up to the House of Lords—is more effective protection than would be given by this Bill.

For these reasons, I hope that this Bill will be given a Second Reading. I shall be very interested to hear what the Government may say. I hold my fire about my Motion. If the Government give good reason for not moving it and have alternative proposals, I shall listen very carefully. In the meantime, I thank the noble Lord, Lord Wade. I am afraid that I may have sounded a little ungracious but I did not mean to be. I regard the Liberal Party as my allies in this matter. They are deeply concerned about matters which concern me as deeply. If their formula and mine differ it is a matter of discussion between us and not of hostility. I am grateful to the House, and will not say any more.

4.12 p.m.

Lord GARDINER

My Lords, I, too, hope that this Bill will obtain a Second Reading. I should first declare an interest in that, with the noble and learned Lord, Lord Kilbrandon, and the noble Lord, Lord Foot, I am a governor of the British Institute of Human Rights. My Lords, this is a subject on which I have changed my mind. I used to think, as I think many, if not most, lawyers thought, that a Bill of Rights was something outside our legal traditions. Our traditions in law have been that if we find an anomaly we introduce legislation ad hoc to cure that anomaly. We do not ordinarily go in for legislation containing lofty sentiments, very often couched in woolly terms. But, in the course of time and changes of events, I have changed my mind for the following reasons. First, I think that, certainly for the last 30 years, the Executive and, to some extent, the bureaucracy, have gained in power at the expense of Parliament and the people; and I think that we must do what we can to improve the powers of both Parliament and people rather than of the Executive.

Secondly, there is a strong and growing international movement for human rights, and it would be sad to me if our country did not play its full part in it. Thirdly, I think that devolution will probably, in any case, require it before long. In his very interesting articles in The Times the noble and learned Lord, Lord Hailsham, said: If the powers of the devolved Assemblies for Scotland and Wales are to be adequately controlled and policed, on the one hand, and protected from the central Government and Legislature on the other, some measure of judicial control seems to be inevitable, and if this is right, some definition of the rights of individuals and minorities against both central and local authority would seem to be desirable and perhaps essential. Fourthly, my Lords, the European Convention is extremely slow. It has also had the undesirable result, I should have thought, that, of all the parties to the Convention, there have been more complaints to the Commission of infringements of human rights in the United Kingdom than in any other country. This is not, I hope to think, because we in fact infringe human rights more than others: it is because nearly all the other countries have incorporated it into their domestic law, and therefore their own judges deal with it. I should have thought that was very much the better plan. It has always seemed to me that we are backward in two things: first, in signing documents and international treaties but not ratifying them. For years now the two United Nations Conventions on Human Rights remain signed by us but unratified. Secondly, when we do ratify them we do not make them part of our domestic law, as most other countries do.

Fifthly, I think it would enable the judges to develop the law and practice quicker than leaving it to the Executive and the Legislature. I do not want to go back to my old friend of 1958, the Blagden Committee on Bankruptcy Law, and its 60 recommendations for the improvement of our bankruptcy law, or the more recent Justice recommendation of the same kind. It is not a matter for the Lord Chancellor's Department; but here getting on for 20 years have passed during which time Governments have said, "We accept the recommendations, and we will legislate as soon as legislative time permits." We are always in this difficulty about time. I think that the proposed incorporation into our domestic law of the European Convention would enable our Judiciary to develop the law and practice quicker. Lastly, a Bill of Rights in itself would have a major educational effect.

My Lords, if it is right that we should have a Bill of Rights, there is a serious question as to what form it should take. From the practical point of view, if we do something, there are two main alternatives. One is to take a piece of paper and a pen and to start writing our own Bill of Rights. I shudder to think what the length of the Committee stage in each House would be if we were to do that. I think that most people who have experience of a good many different forms of Bills of Right have come to the conclusion that, on the whole, the European Convention is the best one. One starts with the advantage that we have, after all, accepted it. It is not only Article 1, to which the noble Lord, Lord Wade, referred; there is also Article 13, which provides: Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. It seems to me that, both by Articles 1 and 13, we are pledged to introduce this into our domestic law, and are in breach of the Convention in not having done so.

My Lords, coming to the objections, the first and main one is the difficulty which would arise for our judges in construing it, and the delays which would occur. So far as the delays are concerned, I thought, with the greatest respect, that the noble and learned Lord, Lord Hailsham, perhaps somewhat exaggerated what was likely to arise; although it is possible that in the first year or two there would be one or two cases going as far as the House of Lords. I feel that the judges will have no real difficulties in interpretation.

It may well be that there will be different views. This very often happens over the question of interpretation. I have never said so, but if I may say so now with regret and courtesy, I have never agreed with the view which I understand the noble and learned Lord to take as to the true construction of that Article of the Convention which deals with trade unions. We have lately had this conscience clause. The last time we had it I sympathised a good deal with my noble friend Lord Brockway in what he said. The reason that I voted against the conscience clause was simply and solely because I thought the time had come when the hereditary Chamber ought to give way to the elected Chamber. We pursued this all last Session. We have gone on pursuing this quarrel with the elected Chamber for a large part of this Session.

The noble Lord, Lord Carrington, made the classic statement in the 1968 debate, in which at col. 1077 on 21st November he said: My Lords, like it or not, most people in this country do not believe that in 1968 a man should sit in the Second Chamber because his father did; nor do they think it fair that one Party should have a permanent majority over the other—and I am bound to say that I find it impossible not to agree with them". Nothing that this House did in relation to that Bill was the least unconstitutional; but it seems somewhat illogical that a Party, which in those days acted in a restrained way—and there has been a great change in the past 12 months with 30 Divisions alone on the Community Land Bill—should go on operating powers to that degree which they themselves say are unfair. But now I am diverting from the point.

I do not think our judges, who are used not only to construing Acts of Parliaments, Ordinances, Statutory Instruments, charter parties and contracts, but any piece of paper on which there are words, will have any peculiar or unusual difficulty in dealing with the Convention. My Lords, for that reason, I think as a whole that the time has come when we ought to do what we are already pledged to do under the Convention: making it part of our domestic law and letting our citizens go to our judges, if they think their rights have been infringed, and leaving the judges to develop that. There is no reason to suppose that any higher proportion of people will go on from our judges to the European Court than do so from other countries. I hope therefore your Lordships will give this Bill a Second Reading.

4.22 p.m.

Lord LLOYD of HAMPSTEAD

My Lords, anyone who has the temerity to oppose a Bill of Rights at the present time is at a considerable disadvantage because every one in a democratic society favours human rights, especially when they are urged with such studied moderation as by the noble Lord, Lord Wade. Therefore it may be asked what possible objection can there be to giving such rights further protection? I suggest that this is too facile a position because we have to look at the effects and implications of such a Bill on our whole constitutional position.

As the noble and learned Lord, Lord Hailsham, pointed out, today of course we are not dealing with what I might describe as the "strong" alternative; namely, a restructuring of our Constitution and the elimination of the sovereignty of Parliament. Sir Leslie Scarman has argued for this in his now celebrated Hamlyn Lectures. What is being put forward today is what one might call the "weaker" alternative. The courts are to have power to declare legislation, past or present, invalid, but the ultimate sovereignty of Parliament is still to remain where it is.

As I understand it, there are two arguments which are addressed to us in favour of such a Bill of Rights. First, it is said that it is desirable in principle; secondly, that it is desirable in order to enable us to comply with the provisions of the European Convention. May I say a few words about the argument that it is desirable. I emphasise that what is being sought here is not just to control the Executive and the subordinate areas of power, whether it be Government Departments or local authorities; these can be dealt with by a system of administrative law. It may be that our present system of administrative law is insufficient, and this is something which the Law Commission are at present examining. But we do not need to have resounding Bills of Rights to deal with that aspect of the matter. What is aimed at here is the control of Parliament itself because it is complained that Parliament either frequently or at any rate occasionally—whichever view you like to take—encroaches on the area of human rights. This, it is said, ought to be curbed, and who better to do it than the Courts?

Sir Leslie Scarman makes his view absolutely clear on this. He refers to the "overweening power" of Parliament. This is something which he says should be curbed, preferably by a new Constitution. But, like Sir Leslie Scarman—even in the weaker alternative of today—the aim primarily is to limit the legislative function of Parliament and the political choices which lie before it. There are powerful reasons for opposing this situation. In the first place, its effect will be to bring our Judiciary into the arena of political controversy. It is a traditional wisdom of our system that judges are better kept out of political decision-making. The United States takes a different view. But as the noble and learned Lord, Lord Devlin (a distinguished judge) remarked in an article in The Modern Law Review the other day, The Supreme Court, like the vines of France, is not for transplantation". I do not think our traditional view on this matter is either foolish or outmoded.

But then it is said: "The judges are only going to have the task of interpreting this document". It is a sheer illusion to think that applying these vague general words of the European Convention is a task comparable to interpreting the words of an ordinary Statute. If your Lordships look at the Schedule containing the Convention you will see it contains such resounding concepts as the right to life and liberty, the right to privacy, freedom of expression, freedom of association, the right to education, or to peaceful enjoyment of one's possessions, and a great number of others. All these are doubtless wholly admirable, but what do they really mean? If you look at the situation in the United States a vast jurisprudence has developed, mush of it conflicting, on the meaning of these resounding concepts. For example, the United States' Supreme Court has established what we in this country describe as "trial by newspaper" on the basis of freedom of speech. Recently the United States' Supreme Court has rejected the control of electioneering expenses on similar grounds. There are laws controlling racial segregration, abortion, obscenity and numerous other measures of social regulation, which the Supreme Court has either upheld or rejected—it has changed its mind from time to time—all on the basis of these basic freedoms set out in their Bill of Rights.

Mr. Michael Zander's article has been referred to several times during this debate. I draw attention to one striking phrase of his, referring to the famous case of Brown v. Board of Education of Topeka, Kansas in 1954, where the United States reversed its previous attitude on segregation on the principle of whether separate but equal was or was not constitutional. This is how Mr. Michael Zander describes that case: The court strikes down the country's entire educational system as not conforming with the requirements of equal opportunity for black and white citizens". My Lords, is this what we want to have in England? Do we want to hand over effective decisions in policy matters on, for instance, comprehensive education, development rights in land, abortion, fluoridation of water, wearing of seat belts in cars, wearing of crash helmets by the Sikhs, the closed shop, and the law of privacy? Do we really want to hand over these policy questions to our heavily beset Judiciary?—who, if I may venture to say so, I do not believe have any pretentions to assuming this rather invidious mantle?

Surely Parliament, with all its faults—and I am not complacent about Parliament because, having spent a number of years in your Lordships' House, I appreciate its great virtues but am not unaware of the defects of some of our procedures—is better qualified to make political choices. It is, after all, a representative body, even though the noble Lord, Lord Wade, doubtless does not approve of the present electoral system. It is to a large degree a representative body. It represents virtually all shades of political opinion; it conducts its affairs in the open with free discussion and can seek advice and guidance from any quarter it may desire. This is a very different arena from the narrow forum of a court of law. What we are doing in introducing a Bill of Rights of this sort—I think we must face this—is to transfer the political battles from Parliament to the courts. I venture to think that our experience over the 1971 Industrial Relations Act, so far as that represented a similar exercise, does not afford a very encouraging precedent.

I yield to no one in my tremendous respect for our Judiciary, but one ought to recognise that judges are appointed because they have a capacity for preserving a total impartiality and a tremendous talent for rigorously investigating very complicated issues and disputes. Policy decisions, on the other hand, do not call for impartiality but for moral and political convictions. There, again, perhaps I might quote the noble and learned Lord, Lord Devlin, taken from the article to which I referred earlier. On the question of policy decisions by judges, he says this: If judges were men endowed for such a task they would not truly be judges I do not accept that human rights are seriously threatened under our system. I think this is a gross exaggeration. On the whole, that system has served us well and I would venture to agree with the words of the noble and learned Lord, Lord Hailsham of Saint Marylebone, that human rights have fared a good deal better in this country than in most others, even in those which have high-sounding Bills of Rights and written Constitutions. Of course there are defects, but these can be and are being put right. For example, we have the Race Relations Act and the Bill concerning bail which we are at present dealing with. These may not be quite as good as some people would wish, but they show that Parliament is applying itself to these problems.

There is another point which should not be overlooked if a Statute such as is proposed by the noble Lord, Lord Wade, were to be enacted. The effect of this would be to throw the whole of our law into a state of total uncertainty for almost an indefinite period. There would be a situation where every Statute on our Statute Book would be liable to be impugned in legal proceedings—what a marvellous field day for lawyers! Anyone who is familiar with the legal scene in the United States will know the endless range of constitutional issues which the ingenuity and pertinacity of lawyers enables them to raise in almost every case; but even if cases fail no one will know where they stand until the courts— and in many instances the highest court—have pronounced. If it is found that the Act does not work and is causing a great deal of unnecessary difficulty, it will be a peculiarly difficult piece of legislation to repeal. Nothing could be more invidious than for this Parliament, having passed a Bill of Rights, to repeal it. Therefore we shall be saddled with this Bill for ever, whether we like it or not.

I hope I have not taken longer than I should have done, but in order that the argument shall not go by default I should like to spend a moment or two on the second argument; that is to say, whether the Bill is necessary or strongly desirable in order to bring us into line with the European Convention. I would argue that it misconceives the underlying political philosophy of the Convention. That Convention was entered into by a number of civilised States, who all assume that by and large their law meets the requirement of human rights. In other words, the Convention is intended to deal with marginal situations. For this purpose, the Convention provides elaborate machinery. First, there is the Commission, which tries to reach a friendly settlement. If that fails there is the possibility, but only the possibility, of a reference to the Court of Human Rights.

Most cases will not involve any changes in the law, but only changes in the prison regulations, and so on, which have been mentioned today. These do not necessarily require legislation to put them right; it may be a matter for administrative regulation. But in the rare cases where national law is found to be inadequate it may have to be changed; and what the Convention does, in my opinion, is to leave this to the constitutional processes of the particular State involved. There is nothing in this Convention, as I read it, which compels a State to confer special legislative power on its own courts. If there is an adverse decision by the European Court, a question of policy will arise as to the extent and manner in which we might want to amend our law. I think this is a matter which is better dealt with by Parliament than by judicial decision.

Lastly, I would say that it is really an illusion to think that our ills rest primarily on deficiencies in our institutions and that we have only to change these and all will be well. On the contrary, I would argue that we should be mindful to preserve those institutions which have served us well in maintaining our democratic way of life. I should not lightly cast these aside, save in the face of irresistible arguments such as I have certainly not heard this afternoon; so on this occasion I am not on the side of the would-be reformers.

4.38 p.m.

Lord DENNING

My Lords, I am sorry I was not here earlier this afternoon so as to hear the opening speeches, being detained by my official duties. May I ask your Lordships to be very cautious before giving a Second Reading to this Bill. There is a grave problem as to whether we should have a Bill of Rights with entrenched clauses which are able to set aside Acts of our Parliament here. Sir Leslie Scarman, in his Hamlyn Lectures says that: …entrenched or fundamental laws, protected by a Bill of Rights—a constitutional law which it is the duty of the courts to protect even against the power of Parliament. It would be contrary to all our history and tradition if the courts of this country should set aside any section or Part of an Act of Parliament. The supremacy of Parliament is one of the pillars of our Constitution. As against Sir Leslie Scarman's view, another of the Lords Justices of my Court, Sir Arthur James, has warned to the contrary. He said: A Bill of Rights has its own Charybdis and its own Scylla. Wide and flexible terms may put a power of exploitation into those who are irresponsibly bent on the disruption of government and society, of whom there are not a few. If your Lordships wish to consider the opposing arguments on this big and important question, there is no paper that I know better than the discussion paper by the Commission headed by the noble Lord, Lord Feather, in regard to the situation in Northern Ireland.

May I say that the arguments in our own country seem to me to be against those in favour, because, if judges were given power to overthrow sections or Acts of Parliament, they would become political, their appointments would be based on political grounds and the reputation of our Judiciary would suffer accordingly. One has only to see, in the great Constitutions of the United States of America and of India, the conflicts which arise from time to time between the judges and the Legislature. I hope we shall not have such conflicts in this country. The independence of our judges and their reputation for impartiality depend on their obeying the will of Parliament and on their being independent. The independence of the judges is the other pillar of our Constitution.

What does this present Bill seek to do? It seeks to lift principles from this Convention of Europe and make them, as they are declared, part of our law and supreme over our Statutes, and the judges must enforce them. In so far as the Convention just expresses our principles—and it does—there can be no objection to it. Looking through this Convention, one sees that article after article contains principles which the judges of England evolved. Your Lordships will see that no one shall be held in slavery or servitude. Lord Mansfield enunciated that in our law 200 years ago, when the slave was brought to England and his master wanted to keep him here in chains. He brought in his habeas corpus. Lord Mansfield said: The air of England is too free for any slave to breathe. Let the black go free. Article 5 is about the right to liberty and security of person. For 600 years we have had our writ of habeas corpus which has protected the freedom of the individual far better than any Convention could ever do. Article 6 is about a fair trial. Every day we see trials, whether by tribunals or anyone else, conducted fairly in this country. In so far as those articles simply enunciate principles which have been culled from the law of England, we do not need them. But the Convention goes further than the principles we have enunciated. It uses high-sounding phrases and generalities, such as is common when the European countries legislate; quite contrary to our system. Let me tell your Lordships that those high-sounding phrases and generalities can be brought into play by individuals who, as Sir Arthur James said, may tend to disrupt and embarrass our society. But, first, let me tell your Lordships that we have in the courts considered this Convention half a dozen times. We have had cases in which it has been prayed in aid, and we have declared that we would consider it, give every weight to it and enforce those principles, so long as they were consistent with our own law.

Let me give your Lordships a few illustrations of the cases we have had on this very Convention. An immigrant came into England, he said, before 1st January 1973, so he was entitled to the amnesty for those who came over illegally in the little boats. The Home Office, after close inquiry, found that he had come after 1st January 1973, and he was about to be sent back because he had come illegally. He brought his writ before the Chief Justice and before us. He prayed in aid the Articles of this Convention. We said that we would go by them, so far as they were consistent with our principles, but we were not going to let them upset the organisation of our society. That is one case.

In another case, a man had come as an illegal immigrant and he had been here for a couple of years. He had come over in a little boat and so on, and was found out at the age of 26 and was about to be sent back. Lo and behold!, my Lords, what did he say? His solicitor said that he had been engaged to be married to a girl of 16. The couple had not arranged it themselves, but the parents and their community arranged marriages of that kind and he wanted to be set free so that he could marry that young lady of 16, just out from school. He prayed in aid the article of this Convention which says that men and women of marriageable age have a right to marry and to found a family. So he argued before us that we should give effect to that Convention, and let him out in order that he could marry the lady. We did not consider the Convention to that extent.

Another case occurs to me where, at about 2.15 in the afternoon, a prisoner—I think he was in Dartmoor or somewhere like that—was going to be brought before the board of visitors or the governor, because he had assaulted another prisoner and was being dealt with in disciplinary proceedings. At 11 o'clock in the morning, his lawyers came before us and asked that the inquiry should be postponed, so that he could have lawyers to represent him and everything could be dealt with in full legal fashion—no doubt, after some weeks—with lawyers and the like, quite contrary to the disciplinary procedures in the prison service. It was drawn to our attention that, in the ordinary course, commanding officers deal with their soldiers, and governors deal with their prisoners, perfectly fairly in disciplinary proceedings without legal representation. But if this Bill of Rights is brought into operation, we shall have lawyers coming before us and arguing that those decisions were erroneous and contrary to this Bill of Rights, which is part, they would say, of our English law.

In other words, I foresee that this Bill of Rights will be taken advantage of by disgruntled people who will bring proceedings before the courts challenging the orderly system of our society. We may turn them down but I foresee a great deal of litigation: people praying in aid these fundamental rights, as they say, and giving much embarrassment and disturbance to society. It happens in other countries where they have written Constitutions.

It is because of these words and the extent to which they can be carried that I ask that they be not made part of our law of England. We should do well, as we are doing at the moment, to give them every consideration. May I quote words which I ventured to say in the Court of Appeal. This is how we, I suggest, should deal with the Convention. In the case of Bhajan Singh I said: The court can and should take the Convention into account. They should take it into account whenever interpreting a statute which affects the rights and liberties of the individual. It is to be assumed that the Crown, in taking its part in legislation, would do nothing which was in conflict with treaties. So the court should now construe the Immigration Act 1971 so as to be in conformity with a Convention and not against it. I suggest that if we are committed to applying that principle—namely, that we should take into account this Convention—we should apply it in every circumstance in which we think it legitimately ought to be applied but that we should not carry it so far as to say that we can thereby upset any Act of Parliament.

One final word I would say is this: see the width of the Bill. If this Bill and its protocols were passed, they shall have the force of law, and shall be enforceable by action in the Courts of the United Kingdom. I suppose that would apply to a civil action for damages or an injunction. See what you can make of it. Article 2 of Protocol No. 1 to the Convention provides that No person shall be denied the right to education. It is as wide as that. Article 2 continues: …the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. These are high sounding principles, but shall not we have every sect or community coming to the courts and claiming to have their own schools and the like? There is no end to the extent to which people can argue on words as wide as this.

I am sure that judges will uphold fundamental freedoms in this country, as they have done through the centuries. Judges can be trusted to do as they have done in the past, but they must be supported by Parliament. I would add the fear of Sir Leslie Scarman, that Parliament may be rushed by a Government—by prejudice, or inadvertence, or oversight—into passing legislation which infringes the rights of individuals. I hope that Parliament in both places will have sufficient Members with vigilance and skill to uphold our fundamental principles and ensure that no Act of Parliament is passed which will infringe those principles. So long as that is done and so long as the judges of England do as they always have done and put the individual liberty of the citizen above all else, we need no Bill of Rights.

4.55 p.m.

Lord BROCKWAY

My Lords, I shall be speaking on the second Bill of Rights which is to come before the House. Therefore my remarks will be very brief. I want to say at once that I support the Bill which the noble Lord, Lord Wade, has introduced and hope very much that the House will give it a Second Reading. I have been deeply impressed by the discussion which has followed the introduction of this Bill. One of the privileges of belonging to this House is that when we discuss matters of this kind, speeches of deep thought, great experience and an obvious seeking for the truth are delivered. I believe that is one of the attributes of this House.

I want to make only two comments on what has been said. The first is on a remark made by the noble and learned Lord, Lord Hailsham of Saint Marylebone, who suggested that if this Bill were carried, cases which were taken first to the courts in this country—perhaps up to the House of Lords—and then to the European Commission would take much longer than at present—the 300 and more cases which have gone to the European Commission and which have taken nearly five years. I recognise at once that there might be exceptional cases of that kind, but I suggest to the House that they would be exceptional and that on average, under this Bill, cases would he dealt with far more rapidly by British courts and would not have to go through the long procedure suggested by the noble and learned Lord.

My second comment is on what the noble Lord, Lord Lloyd of Hampstead, contributed to the debate and on what was said by the noble and learned Lord, Lord Denning. It is perfectly true that the European Commission lays down certain broad principles, which I believe would be accepted by all of us. They were recited by the noble Lord, Lord Lloyd of Hampstead. However, as the schedule to the Bill introduced by the noble Lord, Lord Wade, indicates, there are, following the statement of those principles, a series of articles which go into detail and which are far more precise. To the noble and learned Lord, Lord Denning, I would say the fact that he was able to indicate that, in giving their decisions, British judges had, years ago, appealed to principles which the European Convention has now adopted shows that that Convention is relevant to judicial decisions. As for the series of cases which the noble Lord recited, he will forgive me for saying that I desire a British legal system which embodies the basic rights of this Bill rather than some of the laws of the land against which there were those appeals.

The Bill introduced by the noble Lord, Lord Wade, covers both Britain and Northern Ireland. At this point I want to say only that whilst I am in favour of such a Bill, I submit that a Bill for Northern Ireland itself is more urgent than a Bill for Britain. I urge that on two grounds. First, in Britain there is not yet a consensus of opinion which is in favour of such a Bill—I hope it will come. In Northern Ireland there is that consensus of opinion; as I shall show later, it is almost unanimous.

Secondly, I would say to the noble Lord, Lord Wade, that in Britain we have a stability despite all our economic crises—a democratic stability which does not make a Bill so immediately necessary. In Northern Ireland the situation is different. There is an emergency, there is violence and if, as I hope I may show, a Bill for Northern Ireland itself would be valuable in restricting violence, then I think my Bill should supplement the one introduced by the noble Lord. I hope that support will be given to the Bill on Second Reading for which the noble Lord, Lord Wade, has asked.

5.1 p.m.

Lord BANKS

My Lords, it is with great trepidation that I, a mere layman, venture to enter this debate which deals with constitutional law and in which two former Lord Chancellors and the Master of the Rolls have already spoken, but we are dealing with the individual rights of each one of us and perhaps it is not inappropriate that the lay voice should be heard.

When he introduced the Bill earlier this afternoon, my noble friend Lord Wade pointed out that as long ago as 1947 the first Bill to preserve the rights of the subject was put forward from these Benches. In the interim period, many such Bills have followed and have been put before your Lordships' House by my noble friends. I know that in proposing today that the European Convention on Human Rights should be incorporated into British law, my noble friend Lord Wade was greatly encouraged by the growing volume of support for some legislation of this kind which is coming from such a variety of sources.

The noble and learned Lord, Lord Hailsham of Saint Marylebone, agrees with our intentions, if he does not always agree with our formulæ, and he has spoken this afternoon in support of entrenched rights in a written Constitution. Sir Keith Joseph has called for a Bill of Rights. The noble and learned Lord, Lord Gardiner, has told us today how he has changed his mind in this matter and how he wishes that this Bill shall receive a Second Reading. I understand that a sub-committee of the Labour Party National Executive has supported the main proposition which is incorporated in this Bill today, and on 12th February the right honourable gentleman the Home Secretary made a very interesting speech to the Birmingham Law Society on the question of guaranteeing human rights. In that speech he spoke not unsympathetically of the possibility of incorporating the European Convention into our domestic law.

The age-old assumption by the British courts that a citizen is free to do as he likes provided he does not commit a specific breach of the law is no longer felt by many people to be sufficient protection for individual rights. There are many reasons why this is so. I will mention three very briefly. The first, and most obvious, is the increasing volume of legislation—the increasing volume of the law against which he must not offend. Then there is the complexity of that law, and we have only to think of some of the pieces of legislation which have passed through this House within the last 12 months to realise how great that complexity is. Sir Leslie Scarman in the Hamlyn Lecture, to which reference has been made several times this afternoon, said this: So long as English law is unable in any circumstances to challenge a Statute it is in dangerous and difficult times at the mercy of the oppressive discriminatory Statute. Without a Bill of Rights protected from repeal, amendment or suspension by the ordinary process of a bare Parliamentary majority controlled by the Government of the day, human rights will be at risk. There is a third reason—to which we should give great consideration—why many people are coming to believe that a Bill of Rights is necessary. We are now in a new constitutional situation, brought about by our membership of the European Community and by the prospect of devolution. With some power being exercised in Brussels, some in London, some in Edinburgh and some in Cardiff and with, perhaps, as we on these Benches would hope, some in the regions of England; with, in addition, direct elections to the European Parliament, much more of our Constitution will be written than previously and the case for a fully written Constitution will grow stronger. A Bill of Rights would form a natural part of such a Constitution and, as has been said many times this afternoon, we are of course committed as a nation to the European Convention on Human Rights. Listening to some of the opposition, one might feel that perhaps the people who were opposing the Bill would have preferred it if we had not ratified the Convention. But the fact remains that we have, and the noble and learned Lord, Lord Gardiner, gave it as his opinion that we were committed not merely to the terms of the Convention but to incorporating it into our domestic law.

It has been argued that the terms of the Convention are too broad; that they are not sufficiently detailed. In this connection, I think we ought to bear in mind the view expressed by the Royal Commission on the Constitution—the Kilbrandon Commission. They said this: There is force in the argument that giving precision and substance to rights, defined only in general terms by the Legislature, by the method of judicial decisions in actual cases is more likely to produce an apt and workable body of law than any attempt at initial comprehensive definition, and that in time the law would assume a degree of certainty whereby the citizen might know tolerably well what his rights were and how, if they were infringed, he could seek redress. In the speech which he made on 12th February and to which I have already referred, the Home Secretary said: Much would depend on the way in which the Convention was made part of our law He asked a series of questions. He asked first: Would it be necessary to fetter the sovereignty of Parliament so that the Convention guarantees were entrenched against any future repeal or amendment by Parliament or would Parliament retain ultimate sovereignty? In the quotation which I gave a few minutes ago from Sir Leslie Scarman, it is clear that he was arguing in favour of entrenchment, as was the noble and learned Lord, Lord Hailsham of Saint Marylebone, and it may well be that that in the end will be desirable. As has been explained, the Bill does not entrench the Convention guarantees. The ultimate sovereignty of Parliament is preserved, but the terms of the Bill do not prevent in the future entrenchment as part of the wider constitutional reform to which I have referred. Secondly, the Home Secretary asked: Would the Convention have any special status or priority in United Kingdom law or would it be treated as an ordinary Act of Parliament? In answer to that, it is clear from the Bill that although the sovereignty of Parliament would be preserved, the Act would have a special status.

Then the Home Secretary asked: Would the Convention be able to be invoked in the ordinary courts or only in a special constitutional or human rights court? The Bill clearly refers to the courts as a whole and does not seek to limit it to a constitutional court. The Home Secretary went on: Would the public be willing to entrust to the Judiciary the task of construing the widely drafted Convention guarantees? This is a matter of opinion, but I think they would. After all, if the Convention were thought to be inadequate at any point, proposals for amendment at European level could be put forward through the normal political channels.

Finally, the Home Secretary asked: Would the extension of judicial powers into controversial areas of public policy risk compromising the independence and impartiality of the Judiciary by requiring the judges to work in a more political arena? Of course, to avoid that is the basis of the case for a constitutional court. It may be that ultimately we shall have a constitutional court as part of our apparatus to deal possibly with appeals and tribunals connected with devolution and controversy between Parliament and the Assemblies. But the aim behind the Bill has been to bring the possibility of redress closer to the people. Of course, there would be a right of appeal, which, as I understand it, would go right up to the European Court, which is already accepted, and whose precedents would guide the Judiciary in making the decisions they would be called upon to make in the new circumstances.

My Lords, when this problem is raised, people usually make reference to the United States of America. We have been informed this afternoon that eight countries have incorporated these Conventions into their domestic law, of which, of course, the United States is not one. These eight countries seem to have managed to do this without the Judiciary becoming unduly tarnished in the eyes of the public, and I see no reason why this should not be the case here.

My Lords, may I say in conclusion that we are entering a period of great constitutional change. If we do not face up to his fact, then instead of evolution we shall have revolution. By that I do not mean we shall all be taking to the streets and manning the barricades. I mean that eventually, if we do not face up to the fact of change, there will be the wholesale tearing down of much that exists, including much that is good and ought to be enduring in our tradition. If we face up to the fact of change, we can then see that our Constitution evolves to meet the new situation; we can mould it. We can discriminate in what we retain and what we discard. We can carry all that is best in our tradition of government into the new constitutional structure of the European Economic Community, the nation State, and the devolved regions. This Bill is designed to ensure that in our new constitutional structure, the rights we have long enjoyed in this country shall be suitably protected in changing circumstances.

5.13 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, the Government very much welcome the initiative taken by the noble Lord, Lord Wade, in bringing forward this Bill to the House for discussion today. The subject with which it deals is clearly of the greatest constitutional and legal importance. It is also a highly topical subject. As the noble Lord, Lord Banks, said, my right honourable friend the Home Secretary delivered a major speech on it to the Birmingham Law Society only last month. The House will be gratified to discover that the noble Lord, Lord Banks, dealt with the speech of my right honourable friend so fully that I have been able to excise fairly significant parts of my own speech this afternoon. The subject has also been dealt with by the noble and learned Lord, Lord Hailsham of Saint Marylebone, and others, including Lord Justice Scarman, who have both spoken and written about it on a variety of occasions outside this House.

My Lords, this public discussion reflects a growing concern about the balance of the relationships between the individual and those instruments of authority which we loosely describe as "the State". As the size and complexity of modern society increase, so the rights of the individual need more protection from abuses of power. The adoption of a Bill of Rights would not, of course, remove existing legislative and common law safeguards against those abuses. Unwritten conventions; the sense of fair play of most Ministers and Governments of both Parties, and civil servants; the vigilance of the Opposition and individual Members of Parliament, including Members of this House; the influence of the Press and public opinion; the independence of the Judiciary and, above all, the periodic right to change the Government through free elections with a secret ballot—all these provide a valuable protection for the rights of the individual. But the question is whether something more is now needed, and whether a statutory Bill of Rights would provide the answer.

My Lords, at the moment, this question is being discussed and debated by a number of bodies. The Government have been making their own study, and I will come back to that point in a moment, if I may. As has been said by a number of speakers, last month the Labour Party published a discussion document setting out a proposal by the Human Rights Sub-Committee of the National Executive that the right guaranteed by the European Convention on Human Rights should be embodied in a United Kingdom Act of Parliament. I understand that the Party opposite have commissioned their own study of the subject, which is still going on. In Northern Ireland, the Standing Advisory Commission under the chairmanship of my noble friend Lord Feather, who I am glad to see here this afternoon, is carrying out a study of the adequacy of existing safeguards for human rights, and of the form that any new safeguards might take. The Commission published a discussion paper earlier this month setting out the issues which, in their view, require consideration. This is a valuable document, and I commend it to the House.

My Lords, this Bill, therefore, has been introduced in the middle of a growing public debate. I welcome it as an interesting contribution to our public discussion. It illustrates a number of the important issues now before us. The meaning which the phrase, "Bill of Rights" has in contemporary political discussion comes primarily from its use in the United States of America. As the House knows, there it describes provisions embodied in, or added to, the Constitution, which declares in broad and general terms the principal rights of the individual against the Government, such as the rights to life, liberty and property, to free speech and a free Press, and to clue process of law. The absence of a Bill of Rights in this sense from our own legal system reflects—indeed, the noble Lord, Lord Wade, said this when moving the Second Reading of this Bill—our own unique constitutional tradition of having no written Constitution or "basic law".

Our system is also unique because the sovereignty of the Queen in Parliament is absolute and unfettered. As the noble and learned Lord, Lord Hailsham, said, the essence of our system is the omnipotence of Parliament, which, in practice, means the Government in Parliament, and equally the relatively limited role of the Judiciary in relation to questions of legislation and public policy. The introduction of a Bill of Rights would have significant implications for the essential aspects of our present Constitution.

My Lords, the distinctive feature of a Bill of Rights of the kind we are discussing today is that it enunciates a set of fundamental rights in broad and general terms which need to be expounded, filled out and interpreted by the courts, or some other independent authority. Not the least of the implications of this Bill would be its effect on the role of the Judiciary. The task of interpreting a Bill of Rights would take our courts and judges well beyond the range of the relatively narrow role they have hitherto had. The generality of the provisions would inevitably give them more latitude, and provide less guidance, than is available to them in interpreting legislation in our normal style. They would find themselves having to balance conflicting values—and not merely legal or even social, but political—in spheres that have hitherto been the preserve of Parliament.

My Lords, I think it is right to recall in this context that noble Lords, sitting with distinguished colleagues from other Commonwealth countries in the Judicial Committee of the Privy Council, have to deal with such questions under the provisions of some Commonwealth Constitutions. In addition, the Judiciary in the United States and its component States have performed the same function with great vigour and authority since the establishment of the Union. The enriching contribution of the United States Supreme Court to the life of that country is beyond doubt, but it is necessary none the less to recognise that the conferment of this function on the judges of our domestic courts could bring their decisions, and criticisms of those decisions, right to the centre of the political arena.

If one just gives one single illustration from the experience of the United States, one need only go hack to the second term of President Roosevelt, when there was a dispute between the then American Administration and the Supreme Court, who had just struck down a number of vital pieces of reconstruction legislation in the United States. As will be recalled, this brought a head-on clash between the President, armed with a very substantial majority in both Houses of Congress, and the United States Supreme Court. It created a major constitutional crisis, because the President then took steps—whether he was well advised to do so or not is clearly a matter for debate—to change the character of the Supreme Court, "pack it" as it was described by his critics, and for a very substantial period of time the Supreme Court of the United States was right in the centre of the political arena. I think we have to face this issue head on, because it is clearly a very revolutionary doctrine to consider incorporation of procedures of that sort into our own arrangements in this country.

I come now to consider the particular form and content which the noble Lord, Lord Wade, has chosen to give to his Bill. He has founded it upon the European Convention on Human Rights and there are, as he explained, a number of very sound reasons for his choice. The Convention (with certain qualifications which I will come to in a moment) is already binding on the United Kingdom in international law. Individuals who wish to claim any breach of its provisions by this Government have the right to bring their grievances before the European Commission of Human Rights in Strasbourg. The Government, as the House will recall, renewed this right of individual petition in January of this year for a further period of five years. The Court of Justice of the European Communities now looks to the Convention as a source of guidance on the fundamental rights and freedoms of which the Court sees itself as the guardian within the Community legal order.

Our acceptance of the Convention as binding on us in international law in no way requires us to incorporate its provisions into our own domestic legal system. All that is required is that our law and the way it is administered should conform to the Convention and not be inconsistent with it. However, many of the other member countries of the European Community have incorporated the Convention into their legal systems, as my noble and learned friend Lord Gardiner has pointed out—and examples are France and Germany—because an international instrument like the Convention becomes, by the mere fact of ratification, part of the domestic law of their State.

In these States there are generally also pre-existing constitutional guarantees of fundamental rights which cover much the same ground as the Convention. So, for them, incorporating the Convention into their framework of domestic rights is not as novel a step as it would be for us if we were to follow their example. For us, it is, frankly, difficult to assess the full effects in advance; they would appear only gradually as we experienced the operation of the Convention in a domestic context, and this would depend on the way in which the Convention was made part of our law. Some difficult and controversial questions, I think, clearly face us if we embark on such a course.

I now, if I may, turn to consider some points of detail arising from the noble Lord's Bill. He will forgive me if, like the noble and learned Lord, Lord Hailsham, I sound critical. This is not my intention. As I have indicated, the Government have sympathy for his intentions, if we have doubts about certain aspects of the Bill. First, the Bill seeks to incorporate into our law "without any reservation" not only the Convention itself—which we have indeed already accepted without reservation—but also the five protocols which have subsequently been concluded. One of these protocols, the Fourth, has not been ratified by the United Kingdom, because its provisions about the right of "nationals" to re-enter their own country could not, as they stand, be reconciled with our present nationality and immigration law. In addition, Article 2 of the First Protocol has been accepted by the United Kingdom, subject to a reservation.

Secondly, there is the question of remedies for breaches of the Convention. Clause 1 provides that the Convention and Protocols "shall be enforceable by action in the Courts of the United Kingdom". I doubt whether this is sufficiently adequate as an indication, either to the courts themselves or to complainants, of what remedies Parliament would intend the courts to afford. In particular there is the difficulty that Article 6 of the Convention affects the actions of the courts themselves, in criminal as well as civil proceedings. The whole question of remedies needs, I suggest, considerably more consideration.

A further problem is whether the Convention should be interpreted as requiring States to guarantee the rights contained in it only against infringement by public authorities, or also against infringement by private individuals and organisations. As a question of law, this is a matter on which expert opinion is divided. As a question of policy, it has particular significance in relation to privacy, as protected by Article 8 of the Convention, and membership of trade unions, dealt with in Article 11. The question is one which Parliament would have to face in enacting any general legislation on human rights. It is, again, one that needs careful study and consideration.

My Lords, these are only some of the issues and problems which legislation of this kind is bound to raise. Part IV of the discussion paper, published by the Commission chaired by my noble friend, lists no fewer than 20 questions. In addition, the discussion paper comments: It is easy to be in favour of a Bill of Rights in the abstract. However, some difficult and controversial problems have to be faced before an informed and balanced judgment can be made about an issue of such profound importance. While I in no way oppose the noble Lord's Motion for his Bill to be given a Second Reading, I suggest that in this debate we are only just beginning the process of facing the problems which it raises. We are some way yet from the stage of being ready to form an informed and balanced judgment. In the Government's view, the need at the moment is for wide public discussion so that we can begin to form such a judgment. I think our debate today has been a valuable part of that process.

Finally, I should like to turn to the Motion in the name of the noble and learned Lord, Lord Hailsham, that if the Bill receives a Second Reading it should be referred to a Select Committee of the House. I have no wish to oppose this Motion, if that course commends itself to your Lordships, but I think it is right that I should make two points. First, must refer to the question of servicing any Select Committee on this Bill. I know that the House would expect the usual efficient service if this Committee were to be set up. But I am given to understand that there are problems because of the number of Committees in existence at the moment, and an additional Committee would create significant difficulties. I feel that the House should at least be aware of this consideration. But, secondly, there is another point which I should like to make to the House, and that is the point I made earlier, that the Government, too, have been making their study of the question of a Bill of Rights. Last year we set up a working group of officials from the Departments principally concerned to study the implications of general legislation on human rights.

Among other things, it examined in some detail what would be involved in incorporating the European Convention on Human Rights into our domestic law. We believe that the results of this study could make an important contribution to public understanding of the complex issues with which it dealt and in view of the exceptional importance of this issue, my right honourable friend the Home Secretary intends shortly to make them available in the form of a discussion document. I suggest that this study is likely already to have covered a significant number of the sort of questions to which a Select Committee would no doubt address itself. In these circumstances, the noble and learned Lord may feel that he would rather await the public debate which will no doubt follow the publication of the Working Group's report, rather than to proceed by Select Committee at this stage.

5.31 p.m.

Lord WADE

My Lords, I am greatly indebted to noble Lords who have taken part in this debate and I am glad that there have been differences of view because if everyone had been of the same mind it would have been a much less interesting discussion. It has been a fascinating debate and those who have taken part have spoken with great authority. Obviously I cannot attempt to answer every point that has been made and I am inclined to agree with the noble and learned Lord, Lord Hailsham of Saint Marylebone, that we should obtain as much evidence as possible on this subject from all quarters. That idea I certainly welcome.

I rather wish that we could have had an entirely separate debate between the noble and learned Lord, Lord Denning, and the noble and learned Lord, Lord Hailsham, on the subject of entrenched law. It would have been an extraordinarily interesting debate, listening to their differing views on that subject. There was a kind of cross-current, although some of the remarks of lord Denning do not directly affect the Bill, because we are not now advocating entrenched law, although we may have to face that when we come to devolution, as I said in my opening remarks. I appreciate the point made by Lord Hailsham about Article 26 but I am not so sure that it would make all that difference if the Convention was incorporated because in any case a matter cannot be taken to the European Court until the possible courses of action have been attempted here or until the complainant has found that there is no possible remedy in this country.

I agree that no Bill of Rights can be perfect, but many noble Lords have, I feel, come to the view that case law coupled with statute law is not entirely adequate. As to the question of an unrepresentative Parliament, noble Lords will not be surprised when I say that this is something to do with the method of electing a Parliament. I was grateful for the observations of the noble and learned Lord. Lord Gardiner, and to hear that lie is in favour of the Bill. I am not sure whether it was he or another noble Lord who referred to the United Nations Charter. In my view, the European Convention, which I think Lord Gardiner praised, is very much better than the United Nations Charter; I feel that the Charter muddles up needs and rights, but I must not embark on that subject now.

The noble Lord, Lord Lloyd of Hampstead, made some powerful criticisms. In fact, he made the case against the Bill. I can only say that on balance I disagreed with the views which he expressed. As for the remarks of Lord Denning, I hesitate to question anything he said because he speaks with such experience and knowledge. I can only repeat that I was not advocating entrenched law, although we shall have to face that, and Lord Hailsham is probably in a better position than I am to answer some of the remarks of Lord Denning. Certainly I would nay tribute to the importance of the independence of the Judiciary and the principles evolved by the judges of England. What some of us question is whether case law evolves sufficiently speedily to deal with all the new problems that arise in our modern world. I was glad to hear that the noble Lord, Lord Brockway, supports the Bill. I quite understand that he considers that Ireland provides a special case, and we will listen later to what he has to say on that. I was glad that the noble Lord, Lord Banks, referred to the volume of legislation and the complexity of modern statute law, and also to hear his assertion that we must face up to the effects of change.

I would be only too ready to agree that I have dealt far too briefly with the contributions that have been made to this debate. I listened carefully to the speech of the noble Lord, Lord Harris of Greenwich, who said that the question was whether we needed something more, and that point has run throughout the debate. There is a growing feeling that something more is needed. I would also agree that this whole subject is now being discussed; I read the document by the noble Lord, Lord Feather, and found it very interesting. I have noted the points of detail and I think they are points that could be considered in Committee or in Select Committee. In the meantime, I would welcome wide public discussion.

So we come to the question whether there should be a Select Committee and on this I must wait to hear what the noble and learned Lord, Lord Hailsham, has to say. I would accept the decision of the House as to whether we should have an ordinary Committee stage or a Select Committee—or whether we should wait a little while before further discussion, in which case I think there is much to be said for a Select Committee. That, of course, is a matter for the House to decide.

I hope that the Bill will be given a Second Reading; the significance of a Second Reading is that it marks an important stage; namely, it implies that we are moving from academic debate to a serious intention to legislate. Precisely what form it will take when it reaches the Statute Book I would not go so far as to say. I hope I am not going back on anything I said when I moved the Second Reading, but I think we have reached the stage when there will have to be legislation. In the light of that, I hope that the House will give the Bill a Second Reading.

On Question, Bill read 2^a.

5.39 p.m.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, the question now arises as to what we should do with the Bill to which we have just given a Second Reading. I interpreted the speech of the noble Lord, Lord Harris of Greenwich, as a mild but quite clearly defined request that I should not move my Motion that the Bill be referred to a Select Committee, and that for two reasons. The first was the nuts and bolts of setting up a Select Committee—of which we already have a number; in my private opinion, rather too many—which I cannot altogether ignore. The second was the publication by the Government of some working paper by a group of Civil Servants, which I gather is imminent. I am quite sure that if the Bill were to be taken further—and at the moment I rather hone that it will be put into the fridge for a little while—a Select Committee would be the correct way of handling it. We have heard from, for instance, the noble Lord, Lord Denning, views which, from his point of view, cannot be ignored and which would have to be ventilated before a Select Committee before we allowed the Bill to go to another place. We have also heard from the noble Lord, Lord Lloyd of Hampstead, a reasoned case against the Bill, in which many of the points which I made were put with a good deal more precision and in greater detail.

I believe that, if we were to proceed with this as a serious legislative project, there would be no alternative but to ask a Select Committee to take evidence. By that, I do not just mean studying the arguments as presented by the noble Lord, Lord Feather, in relation to Northern Ireland or the civil servant's paper, although those would obviously have to be taken into account. I believe that we should have to go about the matter in a workmanlike way, taking evidence from the judiciary and from the Government and asking trade unions and other possibly interested bodies and political parties to present their views and should, then, have to produce an important constitutional document containing recommendations as to whether we should go forward with this proposal or with some other or, perhaps, as the noble Lord, Lord Denning, would seem to prefer, with no proposals at all.

If we are to go forward with this proposal, I believe that that is what we should have to do. In the meantime, however, I should like to study the document of the noble Lord, Lord Harris of Greenwich. Therefore, if it is fully understood that should the proposal go forward I shall raise this Motion again at some stage, I would beg leave of the House not to move it at this stage.

Bill committed to a Committee of the Whole House.