BILL OF RIGHTS BILL [H.L.]

HL Deb 03 February 1977 vol 379 cc973-1022

3.50 p.m.

Lord WADE

My Lords, I beg to move that this Bill be read a second time. The object of the Bill is to incorporate into the domestic law the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is intended that in this way complainants will be saved the expense and delays involved in appealing to the European Court of Human Rights. As your Lordships know, the United Kingdom has already ratified the Convention, but by taking this further step, we should be following the example of most other European countries.

In any event, I think it is appropriate that we should be debating this today. It is a very topical subject. There has been a great deal of discussion as to whether there should be a Bill of Rights, and the form it should take. I am sorry that the noble and learned Lord, Lord Gardiner, is unable to be here, but I understand that he is abroad. He has asked me to apologise for his absence, as he intended to support the Bill, as he did on the previous occasion. Also, I shall, of course, listen with great interest to the noble and learned Lord, Lord Hailsham as I did to his Dimbleby Lecture.

The public may ask what practical difference this Bill would make. In the first place, I think it would avoid certain delays where appeals are made to the European Court. There is the well-known Golder case. I need not discuss that today, but it took about five years. Secondly, the introduction of the Bill has a special significance in that it shows we are now passing from the realm of academic discussion about a Bill of Rights to a situation of potential legislative action. Thirdly, the particular Bill before the House today, though modest, could be carried through Parliament with comparative speed.

On the point of the timetable, in an article in the journal Public Law in Autumn 1976, Mr. Jaconelli, in his preliminary remarks, summed up in this sentence what I have been saying: The text of the Convention, together with the necessary Protocols, can be presented as a comprehensive whole for incorporation into our domestic law. Any argument will thus be averted as to what rights should be included in, or excluded from, a British Bill of Rights constructed anew.". So there is that positive advantage in the Bill which is before the House.

As to the practical effects on individual citizens, I do not propose to make up the time of the House by considering examples, but, in my view, privacy provides a good illustration. New forms of interference are continually coming to light; society has become so complex and modern inventions so new and unexpected that neither the development of the common law nor the introduction of specific legislation can keep pace with all the new and changing circumstances. Therefore, on this subject of privacy I think reliance on Article 8, which is to be found on page 5 of the Bill we are discussing, might prove to be beneficial to those who suffer from intrusion.

I do not propose to go over all the old ground or to repeat the quotations that were given in the debate on this subject last year. Some of your Lordships will be aware that the Bill was given a Second Reading last Session and I think I owe it to the House to explain why I did not press on with the Bill last year. In the first place, the Government indicated at the time that they had undertaken a study of this whole subject, and they promised publication of a discussion document. Such a document was sent to me. I received it on 14th June 1976, and I should like to express my gratitude to the noble Lord, Lord Harris of Greenwich, for sending it. However, it still seemed reasonable to wait for that Government publication.

At the same time, there was some discussion as to whether the Bill should go to a Select Committee rather than being dealt with on the Floor of the House, but there were certain practical difficulties about such a procedure and perhaps I do not need to dwell on those now. However, the major factor then was the overwhelming amount of legislation which was before the House last year, and I do not think it is necessary for me to produce evidence to show that that was the case. Therefore, I decided that the better course would be to wait until the new Session, and I have availed myself of the first opportunity of taking up this subject again. The First Reading was on 1st December 1976, and we are considering the Second Reading today.

In re-introducing the Bill, I should explain there has been no alteration in the wording. I thought it would be as well to keep to the same wording in order to avoid any misunderstanding. This Bill, in fact, is the same as that which was given a Second Reading last year. Nevertheless, there are certain points which could, and I think should, be dealt with in Committee, whatever form that Committee might take.

First, I should be in favour of amending the Schedules to the Bill. The Convention was set out in full in the Bill now before your Lordships' House, partly for the information of those interested, but I believe that some of the contents of the Schedules are unnecessary and inappropriate. For example, the composition of the Commission and the composition of the Human Rights Court could be dealt with by Amendment. Secondly, some commentators have suggested that the incorporation of the Convention on Human Rights into our domestic law must not be regarded as setting a maximum, rather than a minimum, standard of principles for the protection of the public. I am not absolutely convinced that additional wording is necessary, but if it is I would see no harm in adding a further clause to the Bill. There is also a drafting point: the word "enactment" is used. I assume that that would cover delegated legislation arising from an enactment, but a definition clause could be inserted, if necessary.

I do not think any of those points lessen the argument for the Bill, and I have noticed that in conferences which have been taking place in a number of parts of the country, though more particularly in London, there is growing support for this Bill as a first step. I do not think there is any doubt that opinion is moving in that direction, but of course I recognise that there is room for differences of opinion.

It seems to me that the choice is really threefold. One could do nothing at all, and rely on the common law and our own legislation; secondly, one could introduce this Bill with such Amendments as may be thought fit; and, thirdly, one might embark on the major task of drafting a new Bill of Rights for this country, if necessary, without entrenched clauses. As to that third choice, I should like just to say this. If we move to some form of federal system in the United Kingdom—and I believe that that is the direction in which we shall be moving—then it may be desirable to have some form of statement of fundamental principles applicable to all parts of the United Kingdom, and I believe that certain entrenched clauses may be necessary. But I think that at this stage it is a little early to assume that there will be a federal system, so I just want to say a word about a new Bill of Rights as opposed to incorporating the European Convention into our domestic law.

So far as the time factor is concerned—and I am a supporter of the concept of a Bill of Rights—it will take quite a long time to get a consensus of opinion on new wording that will be widely recognised as appropriate and free from political bias, and we must take that fact into account. That is one of the reasons for not delaying this Bill, but rather proceeding as a step forward.

Although I am not going to discuss the various points raised in that extremely interesting debate last year, I should like to make one reference to a point on which I find myself in disagreement with the noble and learned Lord, Lord Hailsham. It is not one of the fundamental points, but I think it is relevant. As regards future legislation, it will be noted that in Clause 3 of this Bill the words appear, unless subsequent enactment shall explicitly state otherwise. The purpose of those words is to enable the Government to introduce a Bill, and state that the principles laid down in the Convention of Human Rights will not apply to that Bill. This has been referred to by some commentators as the alarm bell procedure. I recall that the noble and learned Lord, Lord Hailsham, said—and I hope that I am summarising correctly what he said—that it would be all too easy for draftsmen, in drawing up a Bill, to insert the necessary wording excluding the provisions of the Convention of Human Rights, or, at any rate, providing that they will not necessarily apply; and, of course, I agree that it would be easy to draw up wording along those lines.

But, in my view—and here I am presuming to give not a legal opinion, but rather a political judgment—if any Government, of whatever political complexion, were to introduce Bill after Bill containing a clause excluding the principles of the European Convention, Parliament would be very much on the alert and I cannot conceive of any better stick with which to beat a Government than a statement that they are introducing a number of Bills which will, or may, exclude the effects of the principles of the European Convention. Therefore, in my view, the alarm bell procedure is worth a trial.

In conclusion—as I said, I do not think it is necessary to go over all the ground, because we had a very good debate a year ago—may I say a word about the Amendment of the noble and learned Lord, Lord Hailsham? Obviously, I shall listen to what he has to say, and I shall await with interest what other noble Lords taking part in this debate also have to say. I have had a number of letters from individuals and organisations expressing a desire for an opportunity of making submissions, and I can see some merits in sending this Bill to a Select Committee for study, as opposed to proceeding with a normal Committee stage on the Floor of the House. While, as I said, I shall await what the noble and learned Lord has to say, if the Select Committee procedure would not involve undue delay I should be inclined to welcome the suggestion. Finally, may I stress this one main point which I think is important. Times have changed, and there is undoubtedly a need for strengthening the safeguards for individual rights and justifiable liberties. My Lords, I beg to move.

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

4.6 p.m.

Lord HAILSHAM of SAINT MARY-LEBONE rose to move, as an Amendment to the Motion for the Second Reading at the end to insert ("but that the Bill should not be further proceeded with until a Select Committee has reported on the question whether a Bill of Rights is desirable and, if so, what form it should take; and that a Select Committee for that purpose be appointed accordingly."). The noble and learned Lord said: My Lords, I rise to move the addendum—I think it is better called an addendum than an Amendment—which stands in my name on the Order Paper, which noble Lords will see is to the effect that a Select Committee should report on the question whether a Bill of Rights is desirable and, if so, what form it should take; and that a Select Committee for that purpose be appointed accordingly. I am particularly anxious not to weary the House by any form of repetition so soon after we have debated an identical Bill only in the latter part of last Session, and I will endeavour not to do so, although it may be germane to my Amendment that I should, at any rate, summarise the position which we are now in and the views which have been expressed about it.

The last time we debated it there were those who gave a wholehearted support to the Bill. There were those who opposed it. I remember, in particular, apart from the forceful speech from the Labour Back-Benches of the noble Lord, Lord Lloyd of Hampstead, that there was a very powerful effort by my noble and learned friend Lord Denning, who, somewhat ironically in the light of subsequent events, was afraid that the Bill of the noble Lord, Lord Wade, would bring the judges into politics. I make no further comment upon my happy memories of my noble and learned friend's contribution on that occasion.

There were those who, like myself, have always been sympathetic to an attempt to entrench human rights in our domestic law and, more particularly, those who wish to entrench, as this Bill purports to do, those human rights which are already an obligation of this country under international law. That is the purpose of this Bill. It limits itself to the human rights embodied in the European Convention, to which this country and successive Governments have adhered, and still continue to adhere. There were those who favour a different kind of Bill of Rights. We had one before us in 1970 or 1971, when the noble Earl, Lord Arran—again from the Liberal Benches—introduced a measure more or less on the Canadian pattern. That has perished by the wayside, but I know that in Conservative quarters, at any rate, there are people—although I am not one of them—who would favour the entrenchment in our law of a new selection or bundle of human rights, and I can see the purpose of that, although I personally do not agree with the proposal at the present time. So that there was quite a wide range of views expressed about this topic, some of them varying quite intensely both in principle and in detail.

The view which I endeavoured to put forward on the last occasion was that although I was sympathetic to the idea behind the Bill I was completely agnostic and perhaps even sceptical of the value of attempting to embody the terms of the European Convention into domestic English law so long as we preserve the absolute sovereignty of Parliament—which, as I endeavoured to explain in a different context, is in my view approaching elective dictatorship—and the legal rule by which a subsequent Parliament can repeal, amend or modify in any way the Acts of its predecessors.

I do not, to be frank, agree with the noble Lord, Lord Wade, that a modern Commons majority—I am not speaking about this House but about the centre of the elective dictatorship—would hesitate for a moment either to suspend its own rules or to pass amending legislation wherever any one of the main Government programme Bills was involved. The doctrine of mandate and manifesto would be trotted out once again and the act would be done. You only have to look at what was done by the Commons a few weeks ago when, contrary to their own rules of procedure, they declared that a Bill, as to which Mr. Speaker had been advised that it was hybrid, or prima facie hybrid, should go through as a Public Bill in the ordinary way, to recognise that what I am saying is not without a good deal of power.

I do not want to pursue the matter further, although I could give a dozen other examples from the last two Parliaments. However, I do not wish to turn this debate any further into a matter of Party controversy. I do not believe for an instant that so long as you retain the two rules upon which I have observed—the omnicompetence of Parliament and the ability of a Parliament without restriction to amend or abolish the Acts of its predecessors—a Bill of this kind, in this form, will do more than prevent the inadvertent encroachments which Statutes sometimes make upon the rights of the individual.

The question then remains, what are we to do with this Bill? It seems to me that on the assumption that the House is prepared to give it a Second Reading—and that is not only an assumption which I make as to the other Members of this House but one which I would heartily recommend them to make; and despite the doubts of the noble and learned Lord, Lord Denning, and the noble Lord, Lord Lloyd of Hampstead, which are perhaps shared in some Government quarters—we have only two options. One is to pursue the Bill through its ordinary stages of Committee, Report, Third Reading and passing. The other is to take steps rather of the kind which I am now proposing.

If I thought that this Bill would ultimately find its place on to the Statute Book this Session, I should be content to give it a Second Reading here, put down any Amendments that I thought appropriate in Committee and send it to the other place. But I am convinced that it is not the intention of the Government that this should happen. If this option is followed we shall, of course, have a Second Reading debate—which we are having now—and a Committee and Report stage if Amendments are put down. But it will then go into the sand and disappear. Therefore, from the point of the noble Lord, Lord Wade, today's exercise would be a pure exercise in public relations, whatever the result of the debate.

I do not think that the issue is going to go away. After all, we have now had these debates over a period of very nearly 10 years. Certainly debate in academic circles, in technical legal journals, in the popular Press and in broadcasts has been going on in an intensified fashion over the past 10 or 15 years. I do not think that it was at all a coincidence that I was asked by the BBC to deliver what was called the Dimbleby Lecture which very largely dealt with this and other allied topics of constitutional law. I did not choose the subject. They did. I believe that if we do not deal with the Bill in some way the subject will be repeated from time to time. There is a Labour Party pamphlet on the subject; there is a well known pamphlet by Mr. Zander; and numerous other writers have put it forward. I do not believe that this subject is going to go away.

Very well, then. What are we to do with the Bill? This is the practical question to which I devote my mind. If we send it to a Select Committee, some of the fundamental options can be explored. You could not amend this Bill if you were one of those who wanted a Bill with a new bundle of human rights entrenched in the constitution; you would have to introduce another Bill. However, if my addendum were passed a Select Committee could recommend that it was or was not desirable. My view is that it is not desirable, for the very simple reason that I always approach constitutional questions, if I can, with the idea of simplicity and intelligibility in the foreground.

The case for embodying those human rights which are already the legal obligation of this country without amendment and without addition is unanswerable. To attempt to think out new rights, although they themselves might be desirable, if we were starting from scratch, would lead to a degree of dissension, complication and incoherence which would prevent anything useful from emerging. That would be an option which I think the Committee would consider. It may be that they would think I was wrong about that. Alternatively, the Committee might be able to see advantages in this particular exercise which I personally do not see. After all, Mr. Zander thinks that this very exercise is the right one, and so did one of the authors of the Labour pamphlet, Mr. Anthony Lester, who until recently was the personal adviser to the Home Secretary of the day. He thought that this particular solution had value.

The Select Committee will be able to consider evidence from Mr. Zander and Mr. Anthony Lester and they may well be persuaded, as is the noble Lord, Lord Wade, that I am wrong in my scepticism and doubts about whether, in the absence of an ability to limit the power of the elective dictatorship, this solution has any true value at all. In the meantime, not merely Members of tills House proposing Amendments in the ordinary way on the Floor of the House, but other people—and they are very numerous—with ideas on the subject will be able to give evidence and to be questioned by the Committee. If it is a good Committee (and this House could produce a Committee as good as we could find anywhere in the country) we could produce a valuable report on the whole subject of entrenchment and human rights which would add a definite and constructive contribution to the discussion of the subject and possibly elucidate some of the very controversial questions which would have to be threshed out.

I have said enough, my Lords, to indicate that I recommend the House and my noble friends to support the Second Reading of this Bill. I realise that I am prescribing for some members of it, if they consent to serve on the Committee, a certain amount of hard labour, but I hope it will be a labour of love and I think the exercise will be useful if the Select Committee is set up and if it is, as I anticipate, made up of distinguished Members of your Lordships' House. I beg to move.

Moved, as an Amendment to the Motion for the Second Reading at the end to insert ("but that the Bill should not be further proceeded with until a Select Committee has reported on the question whether a Bill of Rights is desirable and, if so, what form it should take; and that a Select Committee for that purpose be appointed accordingly.").—(Lord Hailsham of Saint Marylebone.)

4.21 p.m.

Baroness SEEAR had given Notice of her intention to move, That this House takes note of the Fifty-third Report of last session of the European Communities Committee on Protection of Fundamental Rights. The noble Baroness said: My Lords, I should like first to apologise both to the House and to my noble friend Lord Wade that I was not in my seat when he opened this debate. I had anticipated that the previous business would last rather longer than proved to be the case.

My Lords, I hope it will be for the convenience of the House that at this stage I should report to the House the Fifty-third Report from the Select Committee of the House of Lords on the European Communities, the Report which deals with the Commission's Report on the Protection of Fundamental Rights. I hope your Lordships will agree that it would seem to be appropriate that in a discussion on a Bill of Rights for this country the provisions and the extensions being made in this area in the Community, of which we are, after all, a part, should be taken into account in our deliberations.

The report from the Commission is the result of a question which was raised in the European Parliament, asking in what ways the Commission was taking steps to protect fundamental human rights in the activities of the Community. In the report that it has produced the Commission states first, as is not surprising, that it regards the protection of fundamental human rights as an absolute requirement in any democratic organisation or democratic community, and it goes on to point out that so far as the Community and the Commission are concerned their business is limited, to some extent at any rate, by the Treaty to those rights which are more or less—and I use the term "more or less" deliberately—economic in nature; that is to say, they are concerned with property rights, with the right to enter any kind of occupation, and to equality between the sexes. Your Lordships will see why I say "more or less" economic, because as in so much that is going on in the Community, what begins as an economic issue becomes increasingly a social issue; that is one of the points which emerge in the report from the Commission.

The report then goes on to explain what the Commission has done in the past in protecting fundamental human rights. It states that there was a fear in many quarters—and I think this is a statement which would be accepted and echoed by many people in this country and perhaps by many people in your Lordships' House—that there would be a threat to human rights in the powers that were being taken by the Commission and by the institutions of the European Community remote from this country and perhaps little understood. In the report the Commission claims that such a fear is largely dispersed, partly because of the wider access to Community institutions of individuals, partly because of the care that the Commission has taken in ensuring that consideration is given to these questions in the steps that it takes when introducing measures.

For example, in its report it points out that draft legislation is in all cases sent to the Commission's legal service for advice on its legality, including any question of fundamental rights. Most legislative proposals go to the European Parliament and of course we shall all feel that when that is a democratically elected Parliament that will be a further protection for human rights. Most legislative proposals go to the European Parliament which has to be consulted on them and the Commission takes account of any in-compatibility with fundamental rights that is discovered at that stage. Finally the Council, with the participation of the Commission and experts from the Member States, is able to ensure that problems concerned with fundamental rights are satisfactorily solved.

So much for the past. The Commission is aware that with the expanding area of concern, the expanding area of activity in life that is affected by decisions made in Europe, further steps will be needed in the future if the protection of fundamental rights is to be satisfactory, and it proposes developments on three main fronts. It proposes further information, more widely available so that there is a wider understanding of what in fact is going on and what protection is being given. It also proposes short-term measures dealing with particular issues and I think these are of some special interest, and certainly of special interest to some members at any rate of the Select Committee.

The special programme that it refers to is an action programme designed to improve the social situation of migrant workers; a Directive putting into concrete form the principle of equal pay for men and women; a proposed Directive to achieve equality of treatment for men and women as regards access to employment and vocational training; the establishment of a passport union; the granting of some political rights in each Member State to nationals of other Member States resident in that State. These are short-term measures to which the Commission is directing its attention. It is of particular interest, especially to those of us who feel that the activities of the Commission and of the Community generally are too often seen in this country as being concerned with rather remote economic matters and not with matters that are of interest to individual citizens. I think it can be seen that the proposals that the Commission is reporting here are going into areas of much more direct concern to ordinary people and to giving them the kind of protection which matters in their personal lives.

Thirdly, the Commission is talking about an advance in more general developments. Here it emphasises that due regard is being paid to the European Convention on Human Rights as guidelines in the development of human rights inside the Commission, and of course it is in connection with that development that the link with this debate today is particularly clear. If this is to be increasingly the guideline in Europe it surely is particularly appropriate that we should be dealing with this in terms of national legislation.

The Commission has also discussed whether in its development of statements about human rights it should proceed by means of a list of human rights specifically spelt out, or whether it should rely on the development of judgments—a method well understood in this country—building up experience as developments in the Community grow. It has come down in favour of building up a series of judgments and has rejected the idea of a specific list, relying, as is proposed in the Bill before your Lordships' House today, more on the statements that are made in the European Convention. So we can see in this report that developments are going on inside Europe which have a direct bearing on what we are discussing here this afternoon.

The Select Committee, whose opinions it is my task to report to your Lordships' House, accept the proposals put forward and accept the method adopted of going from judgment to judgment rather than having an entrenched list. They considered also the final point made by the Commission, which is a general statement of human rights. They accept it without the greatest possible enthusiasm because it is felt that these very general statements are—I do not think the Select Committee put it quite in these words—rather like the declaration against sin and do not add very much to what is planned in other ways. Indeed, the drafts that have come through of the proposed Directive, which is still under discussion and on which progress is likely to be made in perhaps another three or four months, are of that very general, slightly pious, kind. However, the Select Committee presents the report, with those comments and with general approval, for notice and, if necessary, discussion by your Lordships' House.

Having reported this to your Lordships' House, may I very briefly, in support of my noble friend Lord Wade, make the point that, in looking at the developments in Europe, it does surely seem extraordinary that of all the nine countries we are the only country which has not got some form of Bill of Rights, and that six of the other countries have entrenched in their constitutions the European Convention. We are the odd man out. In this matter we are still very much in the era of the continent cut off by fog, which some of us hoped had been left behind. If we are not to follow along the lines proposed by my noble friend, the burden of proof is, surely, on us to show that all the others are wrong and we are right.

4.33 p.m.

Lord LLOYD of HAMPSTEAD

My Lords, I hope the noble Baroness will forgive me if I do not follow her on the subject of the report of the House of Lords EEC Committee, although I am a members of that Committee. I do not follow her on that for two reasons. First of all, because I am very happy to observe that the noble and learned Lord, Lord Diplock, is down to speak immediately after me, and he is, of course, eminently more competent to speak on that subject than I am; I am very happy to leave it with him. Secondly, I do not want to speak at too great length; therefore, I would like to concentrate my few remarks on the subject of the proposed Bill. Here I would say, as the noble and learned Lord, Lord Hailsham, has pointed out, this is the third time we will have discussed this matter in the fairly recent past; therefore, it would undoubtedly be wearisome for your Lordships for one to attempt to retail the arguments which we discussed at some length on the previous occasion, and I do not propose to indulge in that exercise.

Indeed I was somewhat reluctant to put my name down to speak, but I did feel that if one did not it might appear that the argument was going by default. I remain, rightly or wrongly, totally unrepentant in my opposition to the present proposal. I would like to make that clear. In my view, a considerable bandwagon does appear to have developed, much supported by the Press—which is always keen on some slogan which they can seize upon as a panacea for all our ills. It is based on what I think are rather superficial arguments, and a failure to appreciate the real situation in the United States, which is the case most often prayed in aid. They have been busily plying the case, such as it is, for some form of Bill of Rights, whether in the form the noble Lord, Lord Wade, is seeking to attain at the moment or in some other form.

I would like to make this point absolutely clear, that in my view we are not really concerned in this sort of Bill with the question of the control of the Executive by the courts. That, I would have thought, is already effectively taken care of under our present system. The activities of Lord Denning and many of his judicial colleagues have shown plainly that there are ample powers within the common law structure to control the Executive. The main problem is, of course, to preserve the delicate balance, not allowing the courts to substitute their view of what policy should be for that of Ministers, but, on the other hand, keeping Ministers within the four corners of the law. This, I venture to think, the courts do with great skill. The only thing that is surprising is that they have taken so long to arrive at the present position. They could have developed these powers much sooner, but for some reason or other it is only in fairly recent times they have exerted their authority.

The real aim of this Bill, and those who support a Bill of Rights is, quite clearly, to curb the power of Parliament itself. Very enthusiastic supporters of a Bill of Rights, such as Lord Justice Scarman, who talks about curbing the overweening powers of Parliament, appear to think—I venture to comment somewhat innocently—that this can be a non-political matter. In my respectful view, the noble and learned Lord, Lord Hailsham, understands the realities in these matters very much better. He appreciates, if I may say so, that when he talks about curbing elective dictatorships and restraining Socialist legislation and matters of this sort we are up against the hard question of political power. As I understand it he would not at all go with the view of the political correspondent of The Times who said a little time ago that "nothing but a Bill of Rights will serve to stem the Socialist tide".

The noble and learned Lord, Lord Hailsham, on the contrary, in his most interesting Dimbleby Lecture, made it clear to us that in his view a Bill of Rights could solve only what he called a relatively small part of the problem, and he called for something on a much more major scale, a new constitutional settlement and so on. Though I personally do not support this idea of a new constitutional settlement, I do appreciate the logic of his argument. I would say that one thing is absolutely clear, that if we do wish to achieve political aims the way to do this is by political innovation, whether it be reforming the House of Lords or a new federal structure or whatever it may be, but not by resort to the Judiciary. My argument has always been that the Judiciary should be left to perform its proper judicial task and should not unnecessarily be brought into the political arena.

The noble and learned Lord, Lord Hailsham, referred to radio discussions which have taken place recently on this subject. I would recall the observation of a United States Senator, speaking in one of those discussions, who said this: The Federal Court system is a powerful part of our Government. It is really the chief agent for change in America today. He went on to say that it was a matter of shame for him as a legislator that Congress had, as he put it, "ducked the hard issues and left them to the courts". We have had many illustrations of that even recently in the Press. For example, I saw it reported in the Press only the other day that the Supreme Court had decided as a matter of constitutional doctrine, in relation to abortion, that there was no need either for a husband to give his consent in the case of his wife seeking an abortion or for a parent to give consent for the obtaining of an abortion for a daughter under age. I am not saying that those are good or bad decisions. I am simply saying that in my humble view these are matters which are better left to Parliament than to judges to decide as matters of interpretation on Bills of Rights.

Lest it be thought that emphasis here should be placed entirely on the United States, I shall quote what Mr. Fawcett, the President of the European Commission on Human Rights, said. I think he can be assumed to know something about this subject. In an article published in the Law Guardian, he said: Is it wise to allow a constitutional court to declare unconstitutional, by six votes to two, the provision of a statute enacted by a substantial majority in the national parliament and based on a long inquiry and report of an experienced and representative Commission? This happened in the Federal Republic of Germany on the question of abortion, and is the subject of an application now before the European Commission on Human Rights. My Lords, the arguments against embodying the Convention in our law are numerous. As I have said, I have no desire to weary your Lordships by going through the arguments again. However, briefly I should like to emphasise one or two matters. First, there is the danger of the enormous uncertainty into which our whole law would be thrown if this were done. The whole of our existing and future law would be open to challenge and attack in any proceedings and this might even cause disruption, as the noble and learned Lord, Lord Denning, pointed out on the last occasion. Your Lordships may recall that the noble and learned Lord quoted a passage from Lord Justice James as follows: 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. Your Lordships may be aware of that from some of the events that are at present reported.

Secondly, there is the question of the endless litigation which may be involved. If this Bill becomes law, presumably anyone can bring an action against anyone based on any provision of the Convention. This could create a new set of causes of action and torts. Lawyers would undoubtedly have a fieldday and one is not surprised to learn that in the United States there are 400,000 lawyers. An article published in The Times, commenting on a recent conference held in London by United States lawyers, concluded with this comment: Whatever the merits of the British system, American law certainly works out well for American lawyers. There is also the question of bringing judges into the political arena. That needs no further emphasis. However, I should like to mention one point briefly. If we are to enact the European Convention into our law it will produce a very odd situation, because however much a matter may be dealt with in our courts and even taken to the supreme court—the House of Lords in its judicial capacity—there is still nothing to stop anyone going through the Treaty procedure; that is, going to the Commission and eventually to the European Court. In that way we may have two parallel or two successive sets of proceedings, which might quite easily have conflicting results. There is no machinery either in the Treaty or in this Bill to reconcile this seemingly irreconcilable situation.

My Lords, to put it bluntly, it seems to me that the proposal of a Bill of Rights in this form—or, indeed, in any other form—is monumentally irrelevant to our present-day needs. There is a tremendous tendency when the economic situation is not as it should be for people to think that that must be due to a fundamental defect in our political institutions. I suggest that that is quite a non sequitur and we may find, if and when our economy moves into much better times—and I hope it will soon—that we shall begin to develop a little more confidence, not only in our economy but also in our political institutions, which for so long have stood the test of time.

Lastly, my Lords, I want to direct a few remarks to the proposal to refer this matter to a Select Committee. I suppose that there may well be something to be said for that as an alternative simply to continuing with the Bill. However, I am bound to say that I do not think it is an appropriate method to explore the question of whether we need a Bill of Rights. I may not have fully understood the noble and learned Lord, Lord Hailsham, but I believe that my view is in line with his thinking that to consider the question of a Bill of Rights standing on its own is something of an irrelevance.

It is something which can only fit into a whole exploration of our constitutional structure and whether this needs to be reconstituted. I do not believe that that can be adequately dealt with by a Select Committee of your Lordships' House, however intellectually powerful. It really calls for some kind of constitutional congress. Naturally, such a congress is unthinkable unless there is a high measure of consensus on the matter, which clearly does not exist at present. Therefore, once this matter moves into the context of a constitutional restructuring, it is a highly divisive issue and one upon which there is no genuine need for us to bestow our energies. I venture to submit that it would be far better to put this whole problem aside and not to pursue it further, as it has been quite adequately ventilated in this House on three successive occasions comparatively recently.

4.48 p.m.

Lord DIPLOCK

My Lords, I venture to suggest that it is essential that this Bill should be considered in its European setting, not only because we are parties to the European Convention on Human Rights but also because, as Members of the Common Market, we shall have to apply, in relation to the administration of the Common Market's laws, those human rights which are recognised by the European Court of Justice.

The concept of human rights and fundamental freedoms, which for short I shall call "fundamental rights", is the protection of the individual against the arbitrary or unjust exercise of power—generally Government's power, but not excluding the exercise of power by other powerful institutions. In every civilised country fundamental rights, except the most elementary, depend upon the judges for their definition as well as for their protection, for there are two ways of dealing with fundamental rights. One of them is to leave it to the courts to build up by judicial precedent in considering individual cases what constitute the fundamental rights which will be protected in a court of justice and what remedies are appropriate for their breach.

The alternative is to provide in a written Constitution a catalogue of human rights which the courts are required to protect. But once that catalogue goes beyond the most primitive protection of the individual against the tyranny of a police State, as is provided in Articles 2 to 5 of the Convention in the Schedule to this Bill, the catalogue requires wide qualifications and exceptions. You have only to look at Articles 8 to 12 of the European Convention to see that; and the breadth of those qualifications, the wide terms in which the exceptions are expressed, means that in effect judges define the human rights entitled to protection under this system of a constitutional catalogue too.

With deference to the noble Baroness, the nine EEC countries are divided between these two methods of seeking to protect fundamental rights. Belgium, Denmark, Germany, Ireland, Luxembourg and Italy are the six catalogue countries, if I may call them that. The size of their catalogue varies. The most comprehensive, oddly enough, are in Italy and in Ireland. Three other countries, France, the Netherlands for all practical purposes, and the United Kingdom wholly, leave the definition of fundamental rights to the judges, and so too does the European Economic Community, the Common Market.

This division does not reflect a difference in attitude between the civil law countries and the common law countries. As I have said, Ireland, a common law country, has one of the most comprehensive catalogues in its Constitution; France, the exemplar of the civil law countries, has practically none. In most countries the protection of fundamental rights against abuse of governmental power is undertaken in constitutional or administrative courts; a special set of courts. In the United Kingdom, Ireland and Denmark, it is undertaken by courts of general jurisdiction. But these two distinctions between catalogue countries and non-catalogue countries, between administrative court countries, special court countries, and courts of general jurisdiction have very little practical result in either the definition or the protection of human rights which results.

In October last, under what I think was a false trade description bestowed upon me for the occasion by my noble and learned friend on the Woolsack, I attended a meeting of the heads of the supreme administrative courts of the EEC countries in The Hague. The unanimous opinion of all of us was that the result of the method of reviewing abuse of governmental power on the grounds of a breach of fundamental rights would, on similar facts, have substantially the identical result in all nine of those countries, except that in two of them there are some doctrines in relation mainly to legislative acts which have not yet been embodied in English administrative law, although in one of them one can detect the process of embodiment in relation to subordinate legislation within the last few months.

I find it reassuring that the EEC is substantially in the same position as the non-catalogue States; the United Kingdom, France and Denmark. As the noble Baroness pointed out, the treaties which constitute the Constitution of the Community say very little that is explicit about fundamental rights. But the European Court, following the example in this country of the United Kingdom courts, has undertaken the task of defining, by judicial precedent applying in that application, the concepts of fundamental rights which are common to the Member States. But unlike this Bill they have not taken the lowest common measure of fundamental rights but have looked to, and incorporated, the more progressive doctrines, including those two which I have mentioned, which have not yet been accepted fully in this country.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I wonder whether the noble and learned Lord would specify the two, because I do not think he has done so.

Lord DIPLOCK

Certainly, my Lords. One is the doctrine of proportionality; that is to say, the step taken by governmental power should not be out of proportion to the evil which it is seeking to stamp out. In a fairly recent case in the Court of Appeal that doctrine has been adopted in this country in relation to the activities of a local authority. Another is the right to have one's reasonable expectations fulfilled. An example of that would be if you have a licence to import material and you have exercised it, the Community legislation then cannot take away that right so as to cause you economic loss if you have reasonably acted on the faith of its continuance. It is, in effect, the sort of remedy against retrospective legislation, or action which has retrospective effect. Those are the two that I had in mind particularly as doctrines which are only just beginning to be assimilated in this country.

I would suggest too that this method of going from precedent to precedent as the problems arise, which is what the European Court of Justice is doing, is the method best suited to the Community at a period where there is a development of powers exercisable by the Community institutions. The only essential difference between those countries with a written catalogue of fundamental rights forming part of the Constitution and the others is that in the former the courts can restrain abuse of power by the Legislature, and that may be a very real danger where the members of the Legislature are amenable to government direction and control. But without a basic change in the Constitution of the United Kingdom—more basic indeed than that which is at present being discussed in another place—this Bill cannot have that result.

One is therefore left—without any extension of the field in which the protection of fundamental rights is available—with a written catalogue of some only, and those the simplest, of the rights and freedoms against abuse of governmental power, all of them already recognised and protected by the courts of this country. There is perhaps the risk that to set out a catalogue in Statute may inhibit to some degree the courts from developing those new extensions of fundamental rights like the two to which I have just referred and those which are being recognised now by the European Court.

Is there any gain from passing such a measure as this which will compensate this risk? If the courts fail to protect these particular freedoms among all the others, because the infringement is contained for example in an Act of Parliament, the citizen who is injured thereby already has the right of recourse not to the European Court of Justice but to the European Court of Human Rights because we have acceded to the Treaty, the Convention, which gives this right to the individual to go to that Court and call for justice. Therefore, my Lords, I add my support to the proposal that the Bill be referred to a Select Committee so that it may consider those doubts which have been voiced, and which I have voiced, as to the usefulness of this kind of Bill unless it is accompanied by some more drastic measures than those which are contained in it or I think which could be put in it now in its present form.

5.4 p.m.

Lord MILFORD

My Lords, I was particularly interested in the speech of the noble Lord, Lord Lloyd of Hampstead; I agreed with so much he said that I tore up half my notes. It is true that many countries need a Bill of Rights, and one is certainly needed in Northern Ireland today. However, I feel that, with our democratic machinery, we in this country do not need one. After the confrontation between the Attorney-General and the Law Courts recently we must think about this subject very seriously indeed because we have been shown the lengths to which the Judiciary is prepared to go to override Parliament, and that is precisely the issue of this Bill of Rights.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, may I ask the noble Lord to say in what respects, whatever the rights and wrongs of the recent exchange between the Attorney-General and the Court of Appeal, they were overriding Parliament? So far as I know, the matter was entirely at large and Parliament had not pronounced on it.

Lord MILFORD

I will not cross swords with the noble and learned Lord, my Lords. Why is there such a strong move to put our rights down on paper and hand over their defence not to Parliament but to the courts? In other words, why is there such a move to erode the sovereignty of Parliament? Sir Keith Joseph has said that we need a Bill of Rights if we are to save the law from Parliament and Parliament from the law. Why does the noble and learned Lord, Lord Hailsham of Saint Marylebone, want a written Constitution, with the law to be enforced by a constitutional court, when he has admitted that an entrenched Bill of Rights would be an unacceptable fetter on Parliament? Perhaps he gave the answer elsewhere when he said that the present Labour Government were persistently proposing legislation which would almost certainly be caught by any Bill of Rights, however formulated. These proposed new constitutional steps are now being produced through fear of what might happen under a future Labour Government. Such issues were never mooted under Tory Governments when they were confronting the trade unions and the working class.

We do not want the courts to become politically stronger than the House of Lords and constitutionally above the House of Commons. I agree that in the House of Commons now we are being ruled too much by Cabinet and that democracy is not working as it should, but it is for the House of Commons to alter that, and no Bill of Rights or lawyers need put their fingers into it. Again, a Bill of Rights could be used to undermine democracy. An essential aspect of democracy is surely responsibility to the electorate, and the Judges are not responsible in this sense.

Let us look at the composition of the Judges today; 89 per cent. of this so-called upper class went to public school, 70 per cent. went to Oxford or Cambridge, and only 22 per cent. ever faced an election in their lives. Can it be said that these men, for there are no women among them—

Lord HAILSHAM of SAINT MARY-LEBONE

That is quite wrong, my Lords; there are women among them.

Lord MILFORD

Is there a woman Judge, my Lords?

Lord HAILSHAM of SAINT MARY-LEBONE

Yes, my Lords; two High Court Judges and a number of county court judges.

Lord MILFORD

In that case, my Lords, I beg the noble and learned Lord's pardon. In any event, these men's lives are miles away from the ordinary people. Why should they be made the custodians of the liberties of the ordinary people, rather than Parliament and the elected Members of Parliament?

5.10 p.m.

Lord DUNLEATH

My Lords, this is the first occasion on which I have had the privilege of speaking in a debate in your Lordships' House, on the subject of human rights, but my research department has told me that the matter has been debated here on a number of previous occasions and, indeed, I know that the noble Lord, Lord Wade, has brought it before the House previously. In 1970, the noble Earl, Lord Arran, brought forward a Motion in general terms on the same topic and the noble Lord, Lord Brockway, did the same in 1976. I see that, in another place, Lord Lambton raised the matter in 1969 and Mr. Sam Silkin also did so in 1971, before he became Attorney General—a period of his career that he must have found much more relaxing than the current phase.

So there is nothing particularly new—or perhaps I should not have said "particularly" because in particular there probably are new aspects, but in the generality of it I would not say that there is anything very new in what is being proposed. Therefore, despite the most interesting and persuasive speech of the noble and learned Lord, Lord Hailsham, I sincerely hope that the Bill will go through. At the risk of wearying your Lordships, may I take the surprising course of commenting on this Bill from a Northern Ireland point of view? Once upon a time, we had a Liberal M.P. in the House of Commons at Stormont. She was Miss Sheila Murnaghan and she held one of the University seats which were subsequently abolished. That got rid of her all right, but, when she was at Stormont, something like 15 years ago, she produced a human rights Bill. The then administration told her that it was not needed, that there was no necessity for it and that it was not required. As a result, seeing that there was a large and permanent majority in the Chamber, the Bill was duly thrown out.

However, since then, I am glad to say that attitudes have changed quite a bit. By 1972, when the Darlington Conference on the future of the Northern Ireland Constitution took place, even the Unionists were prepared to advocate a Bill of Rights. Less surprising, perhaps, was the fact that the Alliance Party which I represent was strong in its advocacy of a Bill of human rights, for this had been our policy throughout. Then, in 1975, the report drawn up by the noble and learned Lord, Lord Gardiner, advocated a Bill of Rights and since then at various times, the Social Democratic and Labour Party, the Republican Clubs, the Communist Party and the Northern Ireland Labour Party have all spoken in favour of a Bill of Rights for Northern Ireland. I cannot recall having heard that the Democratic Unionist Party has added its voice to that recommendation, however.

So I would respectfully congratulate the noble Lord, Lord Wade, on having brought forward this Bill. Looking at it from a Northern Ireland point of view, we—that is, my Party and I—support this entirely because we think it essential for a healthy democracy. Human rights may perhaps assume a slightly different shade—or should I say odour?—when talked about in the Northern Ireland context, there having been civil rights protests and marches and so on but, in my view, the strength of the Bill is that it is based on the Universal Declaration of Human Rights. Quoting from it, it says: The necessity for it is largely due to the increasing power of the State in relation to the individual and to the threat to personal privacy resulting from technological advance. Quite apart from the Northern Ireland situation, this is an influence that is increasingly coming to bear on all developed and industrialised countries. We in the United Kingdom signed the European Convention on Human Rights 25 years ago. It may be argued that it is not a perfect instrument. Indeed, it is the case that enforcement procedures can often be cumbersome, but it can also be argued that, having signed as long ago as we did, enforcement procedures under Article 13 should have been introduced here before now. Anyway, I hope that, when this Bill has been fully debated, whether or not it be before a Select Committee, those procedures can be introduced into the United Kingdom as soon as possible.

We in the Alliance Party have believed in a Bill of Rights all along and I quote from our submission to the Darlington Conference: That in any legislation passed at Westminster to set up a new structure of government for the Province there should be incorporated a Bill of Rights guaranteeing to all citizens the fundamental human rights based on the Universal Declaration of Human Rights. This, as I hope I have made clear, referred to the Northern Ireland Constitution and, as the noble Lord, Lord Milford, said, it is essential that there should be a Bill of Rights there. On the whole, we should prefer to see it covering the entire United Kingdom so that there would be total parity, rather than a certain type of treatment for one part of United Kingdom and another for other parts. However, quite apart from the present and past troubles of Northern Ireland, it is something that we should like to see. We do not fool ourselves that it would be a panacea for all evils. We do not deceive ourselves that it would provide any kind of instant solution, but I think that it would form part of a solution. As I have explained, it is a topic on which a wide cross-section of political opinion in Northern Ireland is agreed and I believe that we want to think as much as we can about the common ground that exists in Northern Ireland rather than those matters that divide us.

So, despite the very interesting, instructive and convincing speech of the noble and learned Lord, Lord Diplock, if the Bill goes to a Select Committee, I hope that it will not get lost or become bogged down. I hope that it will go through and I am very grateful to the noble Lord, Lord Wade, for having raised the matter. I assure him of our support.

5.19 p.m.

Baroness ELLES

My Lords, this seems to have been what might be called a "spatchcock" debate, so many are the aspects of the subject of human rights that have been dealt with, beginning with the very able introduction of the Bill by the noble Lord, Lord Wade, and followed by my noble and learned friend Lord Hailsham, pointing out very clearly why it would not be advisable to carry on with the Committee stage of the Bill. I very warmly support everything that my noble and learned friend has said. It is quite clear that a guarantee of protection of the human rights of the individual as against States under both national and Community law is of vital consideration, and these two cannot be disconnected. So I should like to concentrate on the 53rd Report of the European Communities Committee and deal more specifically with the European Community aspects of the matter. But as my noble and learned friend said, this problem simply will not go away, and the more and more encroachment on the individuals by both States' and supranational legislation, the more it is necessary to see that the individual has the guarantee of protection both at national and at Community level against bureaucratic oppression.

I particularly welcome the Commission's report, which was written at the request of the Members of the European Parliament, a request which had been made way back in April 1973. However, I think that Members of your Lordships' House will agree that the contents were certainly worth waiting for—in particular, the study of the development in European Community case law in relation to improving the guarantees for the protection of human rights of European citizens. I think that this is a very good example of the way in which the Community, through the people who are serving the Community—in this particular case the judges of the European Court—have upheld the rights of the individual against the threatened bureaucracy of the Commission in Brussels. The more that this fact is known the better the image of the European Community will be, and indeed the more justified are the actions of the Community in protecting the rights of the individual.

The noble Baroness, Lady Seear, pointed out that the European Community was formed primarily for economic and social purposes; so the Treaty of Rome was not specifically drawn up with the intention of protecting civil and political rights. Indeed, coming about six years after the European Convention on Human Rights, I should imagine that at the time it was assumed that the Council of Europe Convention would cover those rights and the Treaty was dealing more specifically with the economic subject matter. It has already been pointed out that certain articles in the Treaty do protect the human rights in the economic and social field of the individual, particularly Articles 7, 48, 119 and one or two others. But in fairness it should also be pointed out that these rights are subject to limitations and restrictions which States may impose, though here again in recent cases the limitations and restrictions which States may impose have been defined in case law. Perhaps here there has been an omission in the Commission's report; I do not recall having read, for instance, of the details of the Van Duyn case which is very relevant in this connection.

It should also be remembered that in 1957 economic and social rights as such were not recognised with the same force as they are in 1977. There was much more emphasis on civil and political rights, and individuals were not considered to have the strong economic and social rights that it is accepted by consensus in Western civilised countries they should have today. So I think that this is particularly why it is very timely that we should be having the discussion on the general problems of fundamental freedoms and human rights of individuals within the European context.

There is one particular political right which I should like to raise, and I should be very glad if at some stage we could have a reply from some noble and learned Lord as to what the legal answer might be. There is an example of a potential discussion in relation to Article 138 of the Treaty, concerning the rights of citizens to vote in direct elections for the European Parliament. Is it to apply to all citizens in exercising their political rights to take part in free elections, and does that therefore include those citizens of a Member State who do not necessarily reside in that particular Member State but in another European Community State? This is a very real problem, of the kind which I would hope could go to the European Court of Justice.

I should also very much like the European Court to have powers enabling them to grant an injunction against any Member State which considered drafting legislation which would exclude the right of citizens resident within a European Community State from voting with their own country when it comes to direct elections. I think that this is the kind of way in which European Community law could progress for the benefit of individual citizens.

It was made clear in recent cases in the European Court of Justice that Community law derives guidance from two main sources: primarily the written Constitutions of Member States, and presumably judgments in judicial proceedings in countries where there is no written Constitution. As has been pointed out in various forms, and in various polite and less polite ways, there have been considerable lessons to learn in recent months in this country.

The second area where Community law is deriving its guidance is from international treaties. This is where I see again considerable development in Community law as more and more Member States ratify human rights conventions. In fact, this is a kind of in-built insurance of continued development of that law as other covenants and conventions set up by other bodies come into force. I am thinking in particular of many of the labour laws of the ILO, many of the conventions of the Council of Europe which deal with economic and social rights, which have been ratified by this country and by other Member States of the Community as Members of the Council of Europe. Here we can think of the European Social Charter or the Convention on Social Security. Your Lordships will be aware that there are many in this field which have been drafted and drawn up by the Council of Europe. I should like to take this opportunity, speaking from this position, to congratulate the Council of Europe on all the work that they have done over the years in this particular field, and which I think has been very often neglected and not recognised to the extent which the Council of Europe Ministers deserve.

There is another area where a new international covenant came into force last year—I refer to the International Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights of the United Nations. Presumably, since the Community law recognises international treaties of which Member States are parties and in which they have taken part in the drafting, the contents of this covenant might eventually become part of Community law, and I think that it would be one of the functions of the Commission of the European Community to encourage Member States to ratify these two particular covenants.

In fact, it would be by the ratification of these covenants that there would be eliminated the necessity for having catalogues or lists of rights. The more catalogues and lists of rights there are, the more confusing it is for judges to analyse the meanings of the different ways in which these catalogues are worded. Already there are certain conflicts between the European Convention on Human Rights and the United Nations International Covenant, and certain rights are included in the European Convention that are excluded from the international covenants. So if these main treaties were accepted as part of European Community law, conferring rights on citizens as a result of Member States having ratified these conventions and covenants, I think that we would do away with many of the problems of cataloguing lists in individual countries.

Thirdly, there is a continuing flow of legislation from the Community itself in the form of Directives, which although addressed to countries, may affect the human rights of individuals. For instance, we have the Directive on equal pay, and other anti-discriminatory legislation, to which the noble Baroness, Lady Seear, has already referred. Indeed, it would be very helpful if there was a Commission ombudsman who would ensure that these Directives were implemented. One has to look only at the latest gazette on employment to see the very wide difference still existing in the matter of equal pay between men and women in this country. An ombudsman would also be able to consider draft legislation, to see that such legislation does not affect the individual rights of any citizen in the Community. I should also like to endorse very much what the noble Baroness, Lady Seear, said about future democratic control of draft legislation once the European Parliament becomes an elected body.

My Lords, I should like to say just a few words about the machinery of implementation, because it is no use having guarantees, catalogues or Bills of Rights unless the individual is assured that there is machinery available and adequate to implement those rights and to guarantee to that individual the protection of a court. Already we have three kinds of court which could be used. First of all, of course, there is the national court. Here, again, it will depend whether the national court is prepared to refer a case to the European Court of Justice, recognising that there might be an element of Community law in it. I think this is not always the case, though I was very glad to see recently that, in a case which came before the national courts in this country, legal aid was granted to an individual to go to the European Court of Justice. To my knowledge, I think that was the first time that that had been done, and I very much welcome it.

Secondly, of course, there is the European Court of Justice itself, to which an individual can go; and there has been the Defrenne case, where there was very clear evidence of the protection of human rights of an individual over the question of equal pay as between men and women. Thirdly, an individual has the choice of going to the European Court of Human Rights at Strasbourg if he happens to be resident in one of the Member States of the Council of Europe. Here, I think, is an aspect on which the Commission should undertake an analysis of the kind of machinery available, the simplicity with which it is available to an individual and the length of time that it takes for an individual to get a particular right enforced or remedied, or compensation given. This is, I think, so far, a neglected area in the field of human rights within the European Community. So, drawing rough conclusions on the Commission's report, I would say that it is a potentially satisfactory way to proceed, that they should carry on going through case law to protect human rights, because human rights develop as the economy and the social life of a country develops, and it is only by the courts being aware of, and keeping vigilance over, the rights of individuals that at any one time in contemporary society the individual's rights can be guaranteed; and I think this is a very strong duty which is laid upon both national courts and the European Court of Justice.

Now there is a proposal that a declaration should be made saying that the Member States of the European Community believe in the fundamental freedoms and human rights of individuals, and guaranteeing protection. Personally, I think it would be harmless and that it would possibly even have some benefits, because I think it might remove many of the false ideas of mythology which surround human rights in this day and age. It should also be stated that not only does an individual have human rights: he also has obligations to the Member State in which he lives, and these rights are subject to very clearly defined restrictions and limitations by States. Nevertheless, of course, the States are also limited and restricted in certain actions which would interfere with the rights of an individual.

Of course I recognise that this declaration would have no legal or binding force, but it would be a way of bringing to the citizens of the Community an awareness of their rights and obligations. I think, further, that it would enhance the value, maintained and supported, of the European Communities in countries outside the Community, in that it would make clear to future applicants to the Community that no country would be admitted which had not adhered to the European Convention on Human Rights. I do not refer only to countries like Portugal and Spain—and Portugal, of course, has just now joined the Council of Europe—but also to countries of Eastern Europe, which sometimes look to joining the European Community. I think that if they knew that they had to sign and ratify the European Convention on Human Rights, it might be very beneficial to some of their citizens.

Western Europe is still the only region in the world which provides legal guarantees of protection to the individual, and this, I think, is a record of which we can be proud but which can always be improved; and we look to both the legislatures and the Community, at European level and at national level, to ensure that the development of our laws are concomitant with the Universal Declaration of Human Rights. I would therefore welcome and support the Amendment proposed by my noble and learned friend. Although the Bill of Rights itself may not be the right way to ensure protection and a guarantee of individual freedom and human rights, nevertheless it is essential in this day and age, when more and more bureaucracy crowds in on the individual, that some better way should be found in this country to achieve the protection which every citizen deserves.

5.35 p.m.

The LORD CHANCELLOR

My Lords, we have had a wide-ranging debate on the subject of human rights in its domestic, its European and, indeed, in its universal context, and I am sure we all owe a debt of gratitude to the noble Lord, Lord Wade, for, in particular, once again enabling us to discuss the question of whether or not our fundamental human rights can be better safeguarded than they are now by incorporating the European Convention on Human Rights into our law, as the noble Lord proposes in his Bill.

We last debated this about ten months ago. I make bold to suggest that nothing has happened since then to indicate that human rights in this country are in greater need of protection than they were then. We can, I believe, justifiably start from the proposition that human rights are not grossly abused in the United Kingdom, nor is there any obvious danger of growing tyranny to be averted, despite the noble and learned Lord's inescapable rhetoric about elected dictatorship. Indeed, your Lordships will not have failed to notice that the courts have shown themselves far from backward in ensuring that the powers entrusted by Parliament to the Executive are not exceeded.

Public discussion has continued in the interval since we last debated this matter, as the Government hoped it would. Indeed, we published our own discussion document with the express purpose that there should be public consideration and discussion. Since then there have been speeches and newspaper articles discussing the matter; the Cobden Trust has recently issued a most interesting study on the subject; the noble and learned Lord, Lord Hailsham, has delivered his stimulating Dimbleby Lecture; and the Labour and Conservative Parties have each published studies on the subject. Indeed, within each Party views have been expressed, often diverging within each Party.

All this has helped, I hope, to concentrate our ideas. In particular, we have certainly had time to reflect on the wisdom of incorporating this Convention into our law, and to assess the strength of the arguments in favour of doing so. These have been put eloquently in the House before by the noble Lord, Lord Wade, and others, and they have been repeated today. Of course, consideration of these problems will continue, because the need to protect human rights will continue. As has been said, it is not a subject that will go away; and I am sure it will not be concluded—nor will consideration of it—by whatever is said in this debate.

Now in considering whether incorporation is the right course, and while I readily acknowledge that things have moved on in the past 25 years, I think it does no harm to remember the purpose which the Convention was expected to fulfil when it was ratified in 1951. It was not suggested then that ratification of the Convention would require it to be converted, either verbatim or in substance, into specific statutory provision in a country such as ours, which of course does not normally treat Conventions in that way.

My noble and learned predecessor, Viscount Jowitt, as he then was, said in this House on November 15th, 1950 that he hoped the several paragraphs of the Convention were to be regarded only as the "Rules of the Club" and would not have to be specifically construed by a court because they were drafted in such vague terms and because they clearly represented a compromise, in many respects, between the views of those who had devised them. We were able to ratify the Convention because we thought that our laws could at that time be tested against the "Rules of the Club" and be found satisfactory. That was the very basis on which we ratified them. It was not thought then, nor do I think it is the case now, that human rights are seriously threatened under our existing laws; although I admit that there is room for improvement and for eternal vigilance.

When we last discussed this subject the advantages and disadvantages of incorporating the Convention were fully canvassed. As the noble and learned Lord, Lord Hailsham, has reminded us, the noble and learned Lord, Lord Denning, who has not shown himself to be totally reluctant to engage in matters of controversy, then drew attention to the position in which the judges would find themselves if they were empowered to overthrow the provisions of previous or future Statutes (as the Bill would require them to do in given cases) and how they would inevitably be drawn into the political arena. I do not believe that most judges—indeed, judges as a whole—would welcome that task and I do not think it would be desirable for them to have it.

My Lords, one of the strongest objections to incorporation is that the Convention is framed in such wide and general terms as to create, I believe, great uncertainty as to the extent of the rights which it purports to confer. The courts would be faced with difficult problems of interpretation in highly controversial fields with which they are not well suited to deal; and there would be no guidelines to assist the judges in the interpretation. This I think—and I would agree with the noble Lord, Lord Lloyd of Hampstead, in this—would certainly lead to a great deal more, and possibly unmeritorious and what I might call "try-on", litigation in our courts. Furthermore, incorporation of the Convention would not necessarily reduce the number of cases that might still go to Strasbourg and, indeed, might increase their number; for dissatisfied litigants could still seek to pursue their remedy there after exhausting their domestic remedies here, if they were still not exhausted themselves. That is a matter which would certainly cause those of us responsible for the conduct of the state of business in the courts no little concern.

The tradition of our law, by contrast with what would be involved here, has been to spell out with precision the individual rights and obligations when legislating in any field. I believe that that tradition has served us well. We have spelled out the rights and we have specifically provided remedies. I am strongly disposed to think that that is still the safest and most satisfactory course.

My Lords, there is another serious source of uncertainty embodied in the Convention. It is that while it seeks to specify the individual's rights, it does not indicate clearly against whom they are to be available. Are they enforceable only against the State? One of the publications that I have seen makes that assumption. Or are they enforceable against private organisations and individuals as well? I should be interested in the views of the noble Lord, Lord Wade, on this matter.

The difficulty is that there is no clear guidance on this point—and it is a point of fundamental importance—either in Strasbourg case law or in the interpretations of the other contracting States. To embody the Convention in our law, as the noble Lord's Bill would do, leaves its effect absolutely uncertain on this quite vital point. I do not think that that would be satisfactory. It would be, to say the least, strange while legislating for the protection of the citizen's human rights to leave doubt whether a remedy for the infringement of these rights would lie against public corporations, against local authorities, against companies, against great organisations which I will not mention—

Lord HAILSHAM of SAINT MARY-LEBONE

Dare not mention!

The LORD CHANCELLOR

Or against other individuals. Will they be available against these bodies? It is a question of very great importance. The noble Lord, Lord Wade, as an example of the value to the individual of what is contained in the Convention, referred to privacy. With great respect, I venture to ask him this. What benefit will the individual citizen derive from saying that he is entitled to respect for his private and family life under the provisions of Article 8 of the Convention, unless he knows whether he is protected against breach of that privacy by the Press—and such breaches of privacy are alleged from time to time to take place—or by private detective agencies as well as by the State?

Lord DAVIES of LEEK

Or by a double-decker bus company!

The LORD CHANCELLOR

I do not know the relevance of a double-decker bus company, but if my noble friend wishes me to do so I will add that to the category.

Lord DAVIES of LEEK

My Lords, it is not a bit funny. I had that case brought to me. A double-decker bus had a stop stage outside a bedroom window of a cottage. It went on for three years; and it was driving the people in the house crazy.

The LORD CHANCELLOR

My Lords, I find that a fascinating situation. Whether it gave delectation to the bus driver at the wheel or to the conductor upstairs perhaps, on some private occasion, my noble friend will enlighten me.

But to return to the matter, again on a serious note, I submit that it is better, once we have decided how far the individual's privacy needs the protection of the law, to see that our own domestic law deals specifically with that point rather than to adopt the vague and uncertain concept which now exists in the language of the Convention, at a time when we do not even know that it will be available to the ordinary citizen against anyone but the State.

My Lords, other instances of uncertainty have been pointed out in the various discussion papers. We have been over this ground before and I will not burden the House with them now. I would only mention, by way of example, the difficulties which could arise in medical practice: on abortion, for example, and on the treatment of terminal illness, by the general concept of the right to life in Article 1 of the Convention. Then there are the complications which could arise in the law of compulsory purchase from the rights to "peaceful enjoyment of possessions" provided for in Article 1 of the First Protocol.

Having indicated those difficulties that I see in doing what the Bill proposes, let me now turn to consider the proposal of the noble and learned lord, Lord Hailsham, that the Bill should be referred to a Select Committee of the House. In this matter, I find myself in agreement with the view expressed by the noble Lord, Lord Lloyd of Hampstead. With great respect, I do not think it would serve a useful purpose. I venture to doubt whether it is a suitable subject for examination by a Select Committee. As the noble and learned Lord, Lord Hailsham of Saint Marylebone, has previously made clear—and he will correct me when he replies if I am wrong—he does not contemplate that the Select Committee's function would be confined to examining the arguments set out in our discussion document and elsewhere before reaching a conclusion.

The noble and learned Lord, Lord Diplock, contemplated a very wide range of inquiry indeed for the Select Committee. I further understand—and I may be wrong about this—that the noble and learned Lord, Lord Hailsham of Saint Marylebone, contemplates that the Committee should take evidence from Ministers of the Crown, judges, trade unions, political Parties and other interested bodies, and presumably private individuals as well. It would be a gigantic task, would it not? At the end of it I fear that the Committee would be left not with factual evidence of the need for improvement in the protection of specific human rights, but once again with a collection of widely differing opinions, ranging from those who favour a written Constitution, with the inclusion of a Bill of Rights, or a full and entrenched and fresh Bill of Rights, to those who want no change at all. With great respect, I would not envy the Committee the task of presenting their report to the House, and I frankly doubt if their time—which would be occupied lengthily and with difficulty—would be well spent for furthering a decision to help the citizen in this field.

My Lords, it seems to me that, in the end, it comes down to a question of principle. Should we incorporate the European Convention into our law, as the noble Lord's Bill would have us do, because by so doing we show our belief in the preservation of human rights and because that Convention represents the highest measure of consensus that is likely to be achieved? Alternatively, should we, as I have suggested, stand by our traditional method of legislating and introduce through Parliament such measures as are shown to be needed to ensure that the principles of that Convention are complied with? In my view the latter is the wiser course.

We must indeed aim to observe and maintain to the full the principles embodied in the Convention; and it may well be that special measures are required for this purpose. I hope I will not be suspected of taking a complacent view on that matter. Twenty-five years have passed since we ratified the Convention. Times have changed, and the interpretation of the Convention and its provisions has developed, not always in every respect on predictable lines. The better course for protecting the citizen's fundamental rights may now well be to carry out a general review of our law to identify any points on which it falls short of the Convention's ideals, and remedy any defects or shortfall in our legal provisions or procedures. The Government would certainly be prepared to consider further the need for such a review and how it might be carried out.

I cannot, at this stage, offer a concluded view as to the means by which this might be done. The most effective course may be to set up a Standing Commission on Human Rights charged with this specific task. I do not mean by this a Human Rights Commission with the wide functions sometimes suggested for such a body; but there could be advantage in having a Standing Body with the ongoing function of reviewing the law to ensure that it complies with our international obligations on human rights, including the European Convention. I envisage a body, independent of the Government, with the appropriate range of legal and other expertise, which would make recommendations to the Government; and its reports would be published.

My Lords, I think that a body of that sort might be appropriate if, as a result of this great debate—and I refer not only to the debate in this House today but also to the continuing public debate—we finally decide to stand by our traditional approach to legislation, in the manner which I have described today. It is indeed incumbent on us to keep a constant watch on the state of our law and how it is administered and applied; for the one thing on which we are fortunately all agreed in the House is that the fundamental rights of the citizen in this country must be maintained and protected against any possible threat from any source which can be foreseen.

Before I turn to make some observations on the Motion in the name of the noble Baroness, may I be permitted to say a word about the speech of the noble Lord, Lord Dunleath, in reference to the need for a Bill of Rights in Northern Ireland. The noble Lord may not be in his place at the moment, but he may be interested to read this as he raised the matter, and perhaps I should deal with it. A study is being carried out by the Standing Advisory Committee on Human Rights in Northern Ireland on the possible need for new safeguards for the protection of human rights. Most unhappily, it has been delayed in its work by the unhappy deaths of two successive chairmen, the lamented Lord Feather and Mr. Brian Rankin. But it has now been resumed under the present chairman, Mr. Cyril Plant, and the Government look forward to receiving the Commission's report perhaps in the course of a year. Naturally I cannot now anticipate its conclusions.

I am sure that we are grateful to the noble Baroness, Lady Seear, for her helpful introduction to the 53rd Report from the Select Committee on the European Communities. I should like to begin by expressing my appreciation to the Select Committee on the quality of its report. Not only does it present its conclusions with great lucidity, but it begins with a most useful summary of the background to the questions raised by the European Commission's proposals. It is particularly helpful, in this complicated field of developing European law, to be reminded, as paragraph 3 of this report reminds us, that Community law is mainly concerned with economic objectives. And it is, of course, only with the protection of fundamental rights under Community law that this report is concerned. The Commission's own report emphasised that, in so far as Community law is not affected, the Member States alone are responsible for the protection of fundamental rights within the framework of their national legal systems. With this I entirely agree.

As to the first point raised in this report, one notes that the Select Committee endorse the Commission's view as to the way in which fundamental rights are being protected in the European Communities; that is to say, by the development of an unwritten law drawing inspiration from the common philosophies of the Member States and interpreted of course by the courts. The Government agree with that conclusion, which gives, of course, added importance to the European Convention on Human Rights since it embodies principles accepted by each of the Member States.

The alternative approach which the Commission had considered, of preparing a definitive catalogue of fundamental rights having legal effect in Community law—a kind of European Bill of Rights—was rejected as inappropriate, at any rate so long as the constitution of the European Communities remains in its present form. I venture to agree with that conclusion.

Finally, the Committee endorse, or at least do not oppose, as they put it, the suggestion that the political institutions of the Community should make a declaration of their respect for fundamental rights in the Community—and, again, the Government are disposed to agree. Admittedly, as has been said, such a declaration would have no effect in law but, as the Select Committee reported: it would show the political institutions of the Community felt themselves bound by fundamental rights designed to protect the individual, and could be cited by the European Parliament and other institutions accordingly". A prolonged debate to work out a sophisticated formula would serve no useful purpose but, happily, the indications are that an agreement is well on the way towards the simple declaration recommended by the Commission. I think it can be of benefit, and it is also beneficial to note that the timetable for the completion of that task has now been speeded up.

I conclude by expressing my gratitude again to the noble Lord, Lord Wade, for introducing this fascinating debate, with the continuing recognition that, of course, discussion on this matter will not die, must not die, and shall not die.

6.1 p.m.

Lord WADE

My Lords, we have had an extremely interesting debate, and I would start by saying that I am glad the noble and learned Lord, Lord Hailsham, suggested the word "addendum" instead of the word "amendment", because I think "addendum" is the appropriate word. As I understand it, he is suggesting that we should give this Bill a Second Reading and that it should then be referred to a Select Committee. The noble and learned Lord forecast that if this Bill passed through the normal proceedings in this House and was then sent to the other place the Government would block it. I do not know whether the noble and learned Lord the Lord Chancellor was indicating that that is what might happen—

Lord HAILSHAM of SAINT MARY-LEBONE

It is pretty clear it will.

The LORD CHANCELLOR

My Lords, I have given no such indication. The noble and learned Lord is apparently the interpreter of my Government's intentions in this matter. Unfortunately, I have had none of that information confided to me.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I have known him to be a true prophet.

Lord WADE

My Lords, I think it is all a matter of surmise and I will not suggest what might happen in another place. The noble and learned Lord, Lord Hailsham, referred to the debate over the validity of the mandate. I myself am somewhat sceptical about the mandate we hear so much about today—

Lord HAILSHAM of SAINT MARY-LEBONE

Hear, hear!

Lord WADE

—especially if the Government in power are supported by a number of Members of Parliament who do not represent a majority of the electors. However, I should be straying rather far if I went deeper into that subject. I agree with many speakers who have taken part in the debate that this is a matter of great constitutional importance and that the fullest consideration should be given to it. For that reason, I am persuaded that the Select Committee procedure would be an appropriate procedure to follow.

I am grateful to my noble friend Lady Seear for her account of the 53rd Report. She was in some difficulty, as other speakers have been, in that we have been trying to debate two inter-related subjects at the same time; and I appreciate the way in which those who are concerned particularly with the EEC Report have been willing to make their contribution at the same time as taking part in the debate on my Bill.

The noble Lord, Lord Lloyd of Hampstead, spoke with his usual sincere moderation. We know his opposition, and I was not surprised by what he had to say. However, I would make just this comment: I thought he was implying that those of us who were interested in a Bill of Rights were concerned with curbing the power of Parliament. My personal view is that one of the main problems we shall face in the future is going to be that of Parliament versus the Executive rather than the curbing of the power of Parliament.

I am very glad that we have had the support of the noble and learned Lord, Lord Diplock, on the suggestion that this should go to a Select Committee. I would agree with him that, in general terms, we have to choose between building up law by individual cases or creating a catalogue of principles—if by that he means a new catalogue of principles. Nevertheless, whatever we do—and I found myself making this note throughout the debate—the courts will continue to interpret the law and, in doing so, will create precedents. As to what was said by the noble Lord, Lord Milford, I understood him to say that a Bill of Rights was appropriate for some countries but not for this. My only comment on that is that I can think of a number of countries where it would be very beneficial to have a Bill of Rights, but I do not propose to list those countries I have in mind.

I am very grateful to the noble Lord, Lord Dunleath, for his support. As your Lordships know, he is a member of the Alliance Party. It is true that we have had several debates before, and if one is against the whole idea there is really nothing more to be said. If one is in favour of moving forward, then it seems to me the problem is one of method and wording. I am grateful to the noble Lord, Lord Dunleath for mentioning Miss Sheila Murnaghan. I know her well, and was glad to hear her referred to by the noble Lord.

The noble Baroness, Lady Elles, brought us back to the 53rd Report, and this is a subject on which we know she is very well informed. I noticed, while listening to what she said, that the word "catalogue" kept cropping up. I believe there is a distinction between the European Convention, which sets out principles, and the drawing up of a new catalogue. I can see the practical difficulties involved in drawing up a new catalogue. I think it may come to pass but in my opening remarks I said one of the difficulties about a new Bill of Rights is the time that would be taken in drafting a new catalogue. Even then, I think we shall continue to have case law, and the courts will still continue to interpret the law.

As to the noble and learned Lord the Lord Chancellor, I certainly hesitate to intervene between a present Lord Chancellor and a former Lord Chancellor who is going to speak after me. I thought perhaps that the noble and learned Lord who sits on the Woolsack was a little too optimistic about the present state of affairs as regards liberty in this country; but as regards a Bill of Rights, many distinguished lawyers have expressed themselves as being in favour of it. Others have spoken against it; and of course it would be a surprising day if every distinguished lawyer in the country were in agreement. Had I had time I would have quoted those who support my views, but I am aware that time is running short.

As regards privacy, may I just say this briefly: if someone came and asked my advice about a new kind of situation which had arisen with regard to intrusion of privacy, I would look up the law, try to find out whether there was any legislation on it or, if not, try to find out what principles had been laid down by past decisions—because that is the way in which the common law evolved. But it might well be that I should have difficulty in finding an answer, because circumstances change. As I said at the outset, there are so many new inventions and, whatever it may be, there is not always an answer. It is an advantage to have principles laid down and this incorporation, which is no more than incorporating what has been ratified, would help in building up those principles on which we rely for our freedom and liberty.

6.11 p.m.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I wish to devote myself only to those aspects of the debate which affect the addendum, or, strictly, the Amendment, which stands in my name, but of course I may stray for a moment or two on to the general merits. One of the most extraordinary speeches I have listened to in this House for some time was that of the noble and learned Lord on the Woolsack. Of course we all love him, we admire his mellifluous prose and his unfailingly courteous demeanour, but he left us completely in the air. What is he proposing to do? Will he vote against the Bill? He gave us no indication. Will he block the Bill? I have no information from my colleagues as to what they will do in the House of Commons. So we do not know. Not since Dickens invented the character of the Artful Dodger has there been an avoidance of so many important issues. What does he want this House to do? If, as I suppose, on a Division—if there is one—it is given a Second Reading, and if, as I suppose, this House does not know whether or not the Government are going to block it, although I venture to predict that they will, are we to go ahead with our ordinary procedure, or are we to go ahead with the procedure which I suggest as an alternative? We have had no kind of guidance whatsoever from the noble and learned Lord on that all-important topic. When he came to deal or grapple with the problems underlying the Bill, he gave us no guidance whatsoever, nor, with respect, did the noble Lord, Lord Lloyd of Hampstead.

The problem is this. We are bound by this Convention. It can be brought to the courts, but not to the courts of this country. It can be decided by the judges, but not by the judges of this country. If we breach the Convention, we can be made justiciable. What the noble and learned Lord, the head of the Judiciary in the United Kingdom, was telling the House—and I must translate it into plain English—was that although his Government, this Government, are quite content to see the Strasbourg judges decide questions of this kind, our judges are too stupid or too biased to be worthy of deciding them. The matter is too difficult, too full of uncertainty.

The LORD CHANCELLOR

My Lords, the noble and learned Lord cannot be allowed to get away with that. I said nothing whatsoever of the kind. He is caricaturing in his characteristic way, abandoning what I said and misrepresenting it in a gross fashion.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, a caricature is only a portrait unlovingly applied. The truth is that that is what the noble and learned Lord was saying, and what the noble Lord, Lord Lloyd of Hampstead, was saying. He knows that every question in this Convention is justiciable. It is justiciable by the judges at Strasbourg but, according to the noble and learned Lord and the noble Lord, Lord Lloyd of Hampstead, our judges must not do it, because it is too difficult, they are too stupid and the uncertainties are too great. The noble Lord, Lord Milford, supposes that they are too biased. But this is the case which we are supposed to be meeting.

"Goodness me", says the noble Lord, Lord Lloyd of Hampstead, endorsed expressly by the noble and learned Lord on the Woolsack, "it might be that some litigants would realise their rights if we were to pass the Bill of the noble Lord, Lord Wade, and be so wicked or so importunate as actually to bring cases to enforce them in the courts of this country. Of course, if they have to go to Strasbourg it may cost too much and there may be no legal aid available. It may be that the delays are too great. But if they can get a speedy remedy here, there will be so much litigation", says the noble and learned Lord, who said that everything was all right with the rights of individuals in this country, "that there will be a flood of litigation which the courts could not stand."

The LORD CHANCELLOR

My Lords, what I was echoing, in effect, were the words of the noble and learned Lord, Lord Denning, on this very proposition. It is the meritricious, the "try-on" litigation that I was challenging, and what I should be unhappy about is if our citizens were misled by the generality of language of the terms of the Convention into futile litigation.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, let us assume, then, that in future the consent of the Attorney-General will be necessary in order to bring proceedings before the Strasbourg courts. At least, I shall be glad to see some measure of agreement between a Member of the Government, judicially caparisoned, and the noble and learned Lord, Lord Denning, on at least one point. But that is the real logic of the argument that was being presented to us, and the fact that it was wrapped up so beautifully does not disentitle me to remove the outer covering from it.

Having got there, we then ask ourselves, I think: what about the other countries of Europe, all of whom have a written Constitution of some kind, except us? We, of course, are so grand that we do not need one, Parliament is so universally popular; the Members of another place are so widely admired, so completely devoid of reproach that we do not need to have what every other civilised country in the world possesses. Then the noble Lord, Lord Milford, says "But it is only when there is a Labour Government that this occurs. You never complain about a Tory Government." I forbear to make the obvious reply to that, but it is not true. The first time I spoke on a Bill of Rights in this House was as Lord Chancellor, against on that occasion a rather different proposal from the Liberal Benches by the noble Earl, Lord Arran. I believe that the only complaints brought to Strasbourg which have received approval by the Commission have, in fact, been complaints against a Conservative Administration. I wonder whether, if our roles had been reversed, the noble and learned Lord himself would have been so unsympathetic to the proposal put forward by the noble Lord, Lord Wade.

The noble and learned Lord, Lord Gardiner, who expressly gave his permission to the noble Lord, Lord Wade, to support this proposal, is not a member of the Conservative Party. Mr. Zander, who made exactly the same proposal in a pamphlet, is not a member of the Conservative Party. Mr. Anthony Lester, who wrote the official Transport House article making exactly the same proposal as the noble Lord, Lord Wade, almost wore the purple until his horse was shot from under him and became the Chairman of the European Commission. Where is the noble and learned Lord the Lord Chancellor getting, when he asks us to do what—to reject this Bill? That would be a disaster. But if we pass it, are we not entitled to say that the businesslike way of dealing with the situation is to put it to a Select Committee?

It will be a lot of work, but I dare say that there are noble Lords in this House who are not afraid of work. However, the noble and learned Lord had a more startling suggestion. His better course is to set up a Standing Commission on Human Rights, with adequate and appropriate means. Their remit would be a general review of our law to identify any points on which it falls short of the findings of the Commission. Compared with my modest proposal, these are the Labours of Hercules. I must ask the noble and learned Lord, because I think it is important, whether he has obtained Treasury clearance for setting up this body. Is there a definite proposal behind what he said, or was it an idea which suddenly flashed through his capacious mind? I think that we are entitled to know, because it would not be done cheaply; it would not be done without civil servants; nor would it be done without a vast budget, with resources. Are we to be fobbed off without passing suggestions of this kind when we are dealing with a subject of this importance? I must ask the House to persist with my proposal because no sensible or even serious answer has been given to it.

Lord DAVIES of LEEK

My Lords, may I ask the noble and learned Lord, who is pushing it a little, one question. The report says: In the end, therefore, a written catalogue might afford less protection than the principles worked out by the European Court which can be guided by the optimum level of the rights". The noble and learned Lord seems to have turned our Constitution on its head and is now demanding that we should have a written catalogue of all fundamental rights.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I think that the noble Lord has not quite followed my argument. I was very careful to say, both in my speech earlier this afternoon, in my speech on the Second Reading of the identical Bill 10 months ago and also in my speech as Lord Chancellor against the Bill of the noble Earl, Lord Arran, that this is precisely what I did not favour. What I am pointing out now to the noble Lord and to the House is that we have this catalogue. It is there. It is written into the European Convention; it is set out; and it is justiciable by the European Court. The only question that we are considering is whether it should be embodied in our domestic law as well as among our international obligations. I should like to say something in reply to the noble and learned Lord which I did not say earlier in my speech: that is, how much I admired the extraordinarily lucid and learned discussion of the subject to which the House was treated by my noble and learned friend on the Cross-Benches.

The LORD CHANCELLOR

My Lords, the original Motion was that this Bill be now read a second time, since when an Amendment has been moved at the end to insert the words set out on the Order Paper.

On Question, Amendment agreed to.

The LORD CHANCELLOR

My Lords, the Question is, That this Bill be now read a second time but that the Bill should not be further proceeded with until a Select Committee has reported on the question whether a Bill of Rights is desirable and, if so, what form it should take; and that a Select Committee for that purpose be appointed accordingly?

On Question, Bill read 2^a and ordered accordingly.