§ The Question was as follows:
§ To ask Her Majesty's Government, in the light of the fact that this year is the 300th anniversary of the first Act of Habeas Corpus, what plans they have for drawing this to the attention of the public in a suitable manner.
§ The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone)My Lords, the Act of 1679 did not create the remedy of habeas corpus, which has existed from the earliest days of the common law. Nor was that Act the first attempt by the legislature to guarantee that ancient common law right. It was in fact the third such attempt; the first being the Petition of Right in 1627, the second being the Statute 16 Charles I, Chapter 10, in 1640. The Act of 1679 is, therefore, only one chapter in the long story of habeas corpus. It is an important chapter, no doubt, but it is in the middle and not at the beginning of the book which starts with Magna Carta, and it does not call for special celebration. I think the most appropriate way to mark this anniversary is to ensure that the law continues to be properly enforced, and that this country continues to be the bulwark, prophet, and protector throughout the world of human dignity and freedom.
Lord MORRISMy Lords, would not the noble and learned Lord agree that the principle underlying the Act of Habeas Corpus is the legal fulcrum 1484 upon which all human rights move? Furthermore, where Western European countries deny this principle in their practice of the law the collective voice of Europe on matters of human rights is weakened.
§ The LORD CHANCELLORMy Lords, the principle is contained in Magna Carta which is that no man should be deprived of his liberty or his life without due process of law. I believe that the countries of Western Europe are an example to the rest of the world. I certainly would not pretend that everything is perfect there or even here, but I think the collective voice of Europe certainly should be heard on these matters, and heard loudly and clearly.
§ Lord ELWYN-JONESMy Lords, in view of the undoubted importance of habeas corpus as a protector of the liberty of the subject against false imprisonment and unlawful detention, would it not perhaps be useful, however tenuous, possibly, the historic significance of 1679 may be, to raise this matter at the United Nations where there are so many nations who do not enjoy the protection of this remedy for their people?
§ The LORD CHANCELLORMy Lords, I will certainly see that what the noble and learned Lord has rightly said is brought to the attention of my noble friend the Foreign Secretary.
§ Lord HARMAR-NICHOLLSMy Lords, would the noble and learned Lord the Lord Chancellor agree that the principle on which habeas corpus is based is important enough to be commemorated? Although 1679 is, as he described, only mid-way in its development, ought we not to remember that Christmas Day itself was not the actual day upon which the great event took place, but the fact that it is celebrated as it is, though not the actual day, helps to spread the merits of the principle on which Christianity is based?
§ The LORD CHANCELLORMy Lords, I do not know the actual day upon which the birth of the Saviour of the World actually took place, but I would agree that Christmas Day has the benediction of the united Church of 1485 Christ, with very few exceptions, on 25th December. I certainly would not like to see that altered. But, my Lords, I am not sure that the Act of 1679 is quite of equal dimension or quite so universally accepted. As to whether it is mid-way, that would imply that the right should have an end, which I hope will not be the case.
§ Lord AVEBURYMy Lords, when the noble and learned Lord is discussing this matter with his noble friend the Foreign Secretary, as he has undertaken to do, will he draw his attention to the fact that in Argentina, a country with which we are about to restore diplomatic relations at ambassadorial level, the law of habeas corpus is widely flouted and the authorities refuse to disclose the fact that individuals are held in custody when writs are moved in the courts by citizens on behalf of people detained?
§ The LORD CHANCELLORMy Lords, if I were to single out to my noble friend the case of Argentina for special treatment, I think that he would tell me that it was not the only instance.
§ Lord LEATHERLANDMy Lords, does the noble and learned Lord agree that history shows that, when the Act was passed in 1679, it was passed in the Lords by the counting of one very stout Peer as having 10 votes?
§ The LORD CHANCELLORMy Lords, I think that the noble Lord is possibly confusing this Act with the Treaty of Utrecht in 1714 or the Act of Settlement 1702.
§ Lord ELWYN-JONESMy Lords, it was the Bill of Rights which came earlier.
§ The LORD CHANCELLORMy Lords, I am very grateful to the noble and learned Lord for his correction. I felt sure that it was not the Habeas Corpus Act of 1679.
§ Lord GORDON-WALKERMy Lords, is it not true that the Habeas Corpus (amendment) Act of 1679 is different from all preceding steps, in that that is the form in which our liberty through habeas corpus has remained from that day to this?
§ The LORD CHANCELLORMy Lords, I think that, if the noble Lord were to refer to the textbooks, they would more or less bear out what I have said about the matter. It is true that the Act of 1679 is still upon the statute book and so, I think, is the Act of 1816 and the Act of 1862. However, I think that the books will confirm my view that the common law preceded it and is the true form in which the right is defined. I could cite medieval cases to that effect.
§ The LORD PRESIDENT of the COUNCIL (Lord Soames)My Lords, much as I feel we have enjoyed these exchanges, I hope that your Lordships will agree to move on.