§ 3.49 p.m.
§ Lord WADE
My Lords, I beg to move that this Bill be now read a second time. In recent years there has been a groundswell of opinion in favour of some form of Bill of Rights. I think that there are a number of reasons. There is growing unease as to whether we enjoy adequate protection against encroachments on individual liberties. Then there is a belief that our Parliamentary system is not entirely satisfactory. For example, Governments may, and often do, come into power not representing a majority of the electors. They may nevertheless claim to have a mandate and introduce legislation to which perhaps the majority of the electors are opposed. There are no special safeguards, apart from public opinion, against measures affecting what some would regard as their basic liberties.
Turning to international obligations, it is true that the United Kingdom has signed and ratified the European Convention on Human Rights and Fundamental Freedoms. Yet to some this seems remote 1000 and the procedures are undoubtedly slow. Also there is one other relevant consideration: whereas on the whole I think Britain has a good record on human rights—I think we have reason to be thankful—nevertheless, there is damaging publicity which often follows when cases are taken to the Human Rights Court and Britain is in the dock. It may be unfair: certainly it is at times exasperating and harmful. If we look around the world, scarecely a week passes when we do not hear of some breach of human rights which we deplore. I think we are justified in joining in protests against these breaches when they occur. Nevertheless, critics of Britain do not miss an opportunity of using reports of cases at the Human Rights Court to discredit Britain and to minimise the effects of the protests that we may wish to make against what occurs in other parts of the world. That is the background.
This Bill, the object of which is to incorporate the provisions of the European Convention into our domestic law, will not solve all these problems. It is a step, but I think an important step. In view of the ground already covered, I do not think one should attempt to go over all the matters; we have had a number of debates on the subject and valuable information from the Select Committee, and the evidence taken by the Select Committee. Therefore, I will not attempt to start from the beginning of the story.
It is fair to add that when the convention was drawn up and signed it was not foreseen quite how many occasions there would be when complaints arose which resulted in a case being taken to the Human Rights Court. I do not think it was expected that there would be gaps—even if a few—in our law which had to be filed. I think it is now recognised that the number of complaints is considerable and that the queue is growing. I also think that it is fair to add, because there has been some misunderstanding on this, that rights already enjoyed would not be diminished by a Bill of this nature. They might be enlarged. The convention could not be interpreted as limiting the rights which we enjoy.
In introducing the Second Reading, may I say a few words about the history of this matter. I have introduced a Bill on these lines on three occasions. The first time 1001 I secured a Second Reading but time did not permit of its proceeding further. On the second occasion, we had a most valuable and interesting debate. The noble and learned Lord who is now the Lord Chancellor will remember this very well because it was then that he moved an amendment to the effect that the Second Reading should be granted on condition that the subject was taken to a Select Committee instead of proceeding on the Floor of the House. I fully agreed with that proposal. I thought that it was a good idea because it widened the whole range of examination and enabled us to take evidence, which we did. The noble Lord, Lord Allen of Abbeydale, as your Lordships know, was appointed chairman. I should like to pay my tribute to the conscientious chairmanship which the committee enjoyed during the fairly lengthy discussions of that Select Committee.
The conclusions were briefly two-fold: one was that if there was to be a Bill of Rights, it should be along the lines of the Bill that I put forward, with some amendment. Secondly, as to whether there should be a Bill of Rights at all, the Select Committee was divided. The majority was a narrow majority of one, but it was in favour of proceeding with the Bill. However, quite properly, the Committee reported to the House and there was a debate on this report of the Select Committee. That was on 27th November last year. The noble Lord, Lord Allen of Abbeydale, presented the report and I moved an amendment the effect of which was that the Bill should proceed with some appropriate amendment. The amendment which I moved was carried by 56 votes to 30.
After that, as your Lordships know, there was a General Election and a new Government came into office. I felt that some reasonable time must be allowed to lapse for the Government to consider their position. However, in July I introduced a new Bill and this is the Bill which is now before your Lordships. I am therefore in the unusual position of moving the Second Reading of this Bill for the third time. Whether this can he put down to fate or obstinacy it is a little difficult to say; perhaps it is a combination of the two. As to the time factor and the very full discussion by the Select Committee, I have no regrets. I think 1002 it was very useful that this lengthy examination should take place. The Bill itself is short. I think that there is merit in brevity. I think it is easier to add than to subtract but I recognise that some additional wording might be justified.
Looking at the Bill, may I make these few comments. As your Lordships will see from the Long Title, the object is to render the provisions of the European Convention enforceable in the courts of the United Kingdom. May I point out—and this is already well known to your Lordships—that we are bound by a treaty by the ratification of this convention but ratification of a treaty does not mean that an individual has a right of action in the courts here. That requires an Act of Parliament. That is why it is necessary to be discussing an Act of Parliament.
The first clause provides—and I am summarising—that the convention together with such protocols as shall have been ratified by the Government of the United Kingdom, shall be enforceable by action in the courts of the United Kingdom. In the Bill which was attached to the Select Committee report, which was the Bill before the Committee at that time, certain words were, in the context of that Bill, appropriate. They were:Without any reservations".In the new context of this clause, as slightly altered, those words are not appropriate; at any rate, they might give rise to misunderstanding. At the Committee stage I suggest that the wordswithout any reservationsshould be omitted and replaced with the wordssubject to any reservations thereto".I apologise for entering into details of drafting, but I say this here and now in case anyone has misunderstood the wording of this Clause 1.
The second clause deals with the conflict between existing law and the convention and protocols that we ratified, and it provides that the convention and protocols, which we have already agreed to accept by treaty, shall be treated as prevailing if there is a conflict. But under the third clause, which deals primarily with legislation after the passing of this Act, the Bill reads as follows: 1003In case of conflict … any … enactment passed after the passing of this Act shall be deemed to be subject to the provisions of the said Convention and Protocols and shall be so construed unless such subsequent enactment provides otherwise or does not admit of any construction compatible with the provisions of this Act".I will, if I may, come back to that in a few moments.
In the first clause there is one major difference between this Bill and the previous Bill. In the former Bill, the whole of the convention was set out in a schedule. The reason for this was primarily for the convenience of the House, so that anyone who wished could refer to wording of the convention. The question was discussed by the Select Committee as to whether the whole of the convention should be included, namely, all parts of the convention, including those aspects of it which dealt with procedure such as appeals to the Human Rights Court, although of course not parts not ratified or subject to reservations.
The Select Committee, after discussing this, were inclined to favour including the whole of the convention and protocols, with the exceptions I have mentioned. If that be so, then I think there is a case for presenting the Bill in this form without setting out the convention and protocols in full in a schedule. It certainly simplifies the Bill, but I am open to advice on the matter and also to the decision of the House.
To summarise, in any event the important part to which incorporation is intended to apply is that concerning "rights and freedoms" defined in Section 1 of Schedule 1 of the convention, together with Articles 1 to 3 of Protocol No. 1, subject to the reservation made to Article No. 2 of that first protocol, which relates to education. I am sorry if, without reference to all the articles and protocols this perhaps sounds a little puzzling. I think on reading it, it will appear clear.
I turn briefly now to derogation, which the Select Committee mentioned. Article 15 provides that—in time of war or other public emergency threatening the life of the nation, any high contracting party may take measures derogating from its obligations under the Convention".The article goes on to explain what is implied by "derogation". If, as is 1004 proposed, Article 15 is to be treated as if it were enforceable as part of our law—in other words, incorporated—it does not seem necessary to refer to derogation specifically in the Bill.
I now come to the words "enforceable by action"—against whom? It is the high contracting parties who, by the convention, undertook to secure to everyone within their jurisdiction the rights and freedoms referred to: in our case that means the United Kingdom. A claim would therefore lie against the United Kingdom Government. As to the nature of the action. I doubt myself whether any special new remedy would be required. Occasions might arise where the interpretation of the law might rest upon the wording of the Convention. Cases might arise where some complainant might wish to bring forward a specific point, in which case I think he would probably be advised to take out the appropriate writ or ask for a declaration, or perhaps apply for an injunction. In Scotland that would be an interdict. I think these measures would suffice.
So far as a declaration is concerned, I do not think the advantage of this is always fully appreciated. I think it might prove to be very effective. If there were a breach of a provision of the European Convention and some high court declared that was so, I think any Government would hesitate to defy it. In the last resort, of course, if the Government did defy it there might be a case to take to the Human Rights Court. As to Clause 2, there are one or two minor points which can be left to the Committee stage, but the principle is important: namely, that in a case of existing law we must assume that the terms of the convention would prevail.
The main argument in the Committee and outside the House has been over Clause 3. The reason for the original wording which I drafted was to lessen the chance of inadvertent breaches of the articles of the convention in future legislation, but I have to admit that the original clause, as the Select committee pointed out, raised a question as to whether it amounted to an attempt by one Parliament to bind future Parliaments. The Select Committee felt that they were bound to keep within the existing constitution and therefore could not, even if they wished, introduce entrenched clauses. 1005 The new wording takes this into account. Under this Bill, Parliament is not asked to make provisions which future Parliaments could not revise. I think we must accept that so long as we keep to our existing constitution. On the other hand, the Bill assumes that Parliament would not wish to flout a convention which it has ratified as a treaty.
My Lords, I foresee some representations on the last few words of this Clause 3, which are as follows:or does not admit of any construction compatible with the provisions of this Act".That is a subject which is very topical at the moment. I am thinking of certain recent cases which have been drawn to my attention on this subject of fulfilling treaties and interpretation. My attention has been drawn to the case of Macarthys Ltd. v Smith of 1979, on which the noble and learned Lord, Lord Denning, had some important comments to make and which has been reported. There is another case of Worrington v Lloyds Bank Ltd. of this year which, so far as I can ascertain, has not been reported. I certainly do not intend to embark on a discussion of these cases. I mention them because it is contended that the observations that were made in those cases support the practicability of Clause 3 of my Bill. However, so far as the last phrase is concerned, which reads… or does not admit of any construction compatible with the provisions of this Act",I would not wish to fight or die in the last ditch in an attempt to retain those words. I have had no opportunity of discussing this point with others who support the Bill, and I can only give my personal opinion, but I myself would not press them if it were felt desirable to remove them. Again I think that it is appropriate for Committee.
It is never easy to outline a Bill, clause by clause, without boring the House and I have tried not to do so. But I would conclude with a few general observations. I accept that there are some political implications in observing the provisions of the convention. That flows from ratifying the convention, rather than from attempting to incorporate it. I could give a few examples of cases which have political implications, though I think it wiser to take hypothetical cases. There are two actual cases at the moment 1006 relating to the closed shop which are before the Commission, possibly with a view to going to the Human Rights Court, but I do not think it would be proper for me to discuss cases which are already before the Commission.
But as a hypothetical example, I can see that if there were—I am not saying that there is—a case of a closed shop with no clause at all for conscientious objections, and as a result some individual was unable to obtain employment, it might be difficult to reconcile that with Article 11. Or to take one other hypothetical case, if, perhaps somewhat unexpectedly, the present Government took a U-turn and decided to renationalise parts of industry without compensation, a question might arise as to whether—it could be a serious point—that could be reconciled with Article 1 of the first protocol. But I think that most cases would arise because some individual felt that he was suffering from some hardship or injustice, which was contrary to one or some of the articles of the European Convention, and he wanted the matter to be put right and wished to bring it in a British court. To help him do so is one of the objects of the Bill.
I can sum up by saying that the underlying objects of the Bill are twofold. One is to assist individuals in the manner that I have suggested, and the second is, at the same time, to strengthen the concept of adherence to internationally agreed principles relating to human rights and fundamental freedoms. My Lords, I beg to move.
§ Moved, That the Bill be now read 2a.— (Lord Wade.)
§ 4.15 p.m.
§ Lord ELWYN-JONES
My Lords, I am sure that the House will wish me to congratulate the noble Lord, Lord Wade, first, on his devotion to human rights, which I think we all share, but, secondly, on his persistence in his campaign in respect of incorporating the Convention into our law. I have forgotten whether it was the Bellman in The Hunting of the Shark who said, "What I say three times is true". It may well be that the noble Lord has reached that state of mind by now. But, alas! such is the many-sidedness of truth, that it may well be that 1007 on this occasion, again, there will be differences of opinion; and looking at the list of speakers it seems very likely that that will be so.
Most of us whose names appear on the list of speakers have been around this course earlier, if that is an appropriate metaphor to use—no, my Lords, not in the presence of the noble Lord, Lord Wigg. I am quite safe and he is not here; regretfully, no doubt. But as I was saying when I interrupted myself, we have been around this course before, and I do not intend to take too much of your Lordships' time today. It may well be that, unfortunately, I shall not he able to be here till the end of the debate. If so, I apologise in advance.
On the occasion when previously I spoke from a different position in the House, I regret that it was in opposition to the views of the noble Lord, Lord Wade. It is the case that men of goodwill differ in their views on this difficult matter, as indeed the splendid report by the Select Committee, which was chaired by the noble Lord, Lord Allen of Abbeydale, so clearly indicated. I think that the argument is pretty evenly balanced, but I am still inclined to favour the view of the minority of five against six in the Select Committee's report, supporting the reasons which are set out in paragraph 33 of the report for rejecting what the noble Lord, Lord Wade, proposes. As I see it, what is really at issue between us is more a question of machinery than of objective; more a question of means than of ends.
But the fact of primary importance in considering the operation of the Convention is the basic fundamental decision of the Labour Government, which has been continued by subsequent Administrations, to allow our citizens the right to petition to the Commission of Human Rights and to the Court of Human Rights at Strasbourg. The existence of the convention, in itself, is of course a major step in international law and international relations, which was taken after the last war with the object of guarding Europe against any recrudescence of Nazism. It was a similar motivation which led to the earlier Universal Declaration of Human Rights in 1948.
1008 The great difference between the two declarations of principle is, of course, that the European Convention provided means of enforcement of the terms of the convention by giving the individual citizen, as well as State Governments themselves, the right of petition and the remedy that ought, in the normal course of events, to follow a decision of the Court, to which one would expect governments to give effect, either by administrative means, which is usually the method of dealing with it, or if necessary by legislation. But this development of the right of petition is of major importance in the history of human rights, because of the unique development that it created in international law by providing the individual citizen, in any country ratifying it, with the possibility of bringing a complaint against his own government in a foreign court, before an international body in international proceedings—a major change, a major development.
It was once said—I think these are the words of Professor Lauterpacht—that the individual citizen used to be the object of compassion; now he is the subject of rights. The British citizen is given by the convention and the act of giving a right of petition this new standing as an individual and this new strength to assert his rights. That exists now. Incorporation of the law would make no difference, I submit, to that, except that it would enable our courts to give effect to the principles of the convention. I shall say a word or two about that.
I had the great pleasure last week, on the invitation of the noble and learned Lord the Lord Chancellor, to represent our judiciary at Strasbourg in the celebrations of the 25th anniversary of the setting up of the Commission of Human Rights and the Court itself. One heard of the impressive record of case work that has evolved there. I think it is appropriate that I should pay tribute to the outstanding contribution of British lawyers. Of course it is very much a team and an international job, but the work of Sir Humphrey Waldock as president of the Court was outstanding. Additionally, a distinguished lawyer, James Fawcett, is the president of the Commission of Human Rights.
I was very interested to learn that Mr. Fawcett, the chairman of the Commission, 1009 himself sees grave difficulties in writing the convention into our law. He made an interesting contribution in a BBC broadcast discussion of the matter on 28th October, in which the noble and learned Lord and I each took part. By way of illustration of the difficulties which arise he mentioned some of the applications which have come to the Commission on the question whether the machinery of the Commission and the European Court is really appropriate to deal with some of the questions that arise, or whether or not it would be preferable that they should be dealt with domestically by way of parliamentary action—by legislation.
Mr. Fawcett cited compulsory sex education in schools—whether that was against one of the fundamental principles—the closed shop, abortion law. There was a reference to the Danish sex education case, where the question that the court was asked to deliberate upon was whether the State was interfering with parental rights when it imposed sex education in schools. Seven of the learned judges said yes, seven said no—again, no doubt, another illustration of the many sidedness of truth. The crucial question which he asked was whether these matters are really to be left to the courts to say what is right and what is wrong. In my view, the nature of those broad issues of public policy ought to be dealt with by legislative means.
As noble Lords well know, the convention is set out in terms of statements of general principles of public policy in very wide areas: the right to life, the right to privacy, freedom of schooling, freedom of education, freedom of association, freedom of speech, freedom of the Press, the question of forms of punishment—all major issues of public policy which, I venture to submit and certainly think, are issues appropriate to be dealt with by Parliament and not by the judiciary.
Of course it is the case that the judiciary in our country, through their creation of the common law—judiciary law as, I think, Bentham described it—have played a vital role in the progressively changing shape of our law to keep pace with the changing needs of the community and of society: by, for instance, extending the concept of natural justice. However, under the common law they have developed legal principles slowly and empirically from case to case. If the convention were 1010 incorporated, they would start with statutory principles of the widest generality—I have indicated what sort of ground would be covered—and they would have a free hand to decide how those principles operated in the cases that came before them.
The Convention would acquire a domestic internal significance which might well result in developments quite different from the jurisprudence of Strasbourg itself. The result of incorporation, as I think the report of the Select Committee put it, would graft on to our law an Act of Parliament in form and content totally at variance with any existing legislation and at variance with future laws that need to come forward. I heard with interest the speech of the Chief Justice of Australia, Chief Justice Barwick, on this matter in his address to the Benson Club earlier this year, when he said:It is worth saying that the legislature, notwithstanding its burden of party politics, is better fitted to ascertain and express the common will, the common consent of the realm—to use the language of the great charters—than is the judiciary, which does not have at its command the information required to decide upon a new rule or the acceptability of an existing rule in times of change. As well, these days the legislature is served by law reforming commissions"——as we are admirably served here—able to present the various facets of the problem of what the law should be".In dealing with that point I should add that Parliament has certainly not been slow during my time in Parliament to legislate in new areas where fresh social problems have arisen—for instance, on race relations, sex discrimination and matters of that kind.
One of the broad issues which we discussed previously was the view that was expressed by learned Lords of Appeal. I am glad to see present the noble and learned Lord, Lord Scarman, who is as doughty in his fight on this cause as is the noble Lord, Lord Wade. But some of his colleagues in the Appellate Committee did not share his view on the matter. They expressed concern that the broad terms of the Convention setting out rights absolute in terms but subject to elaborate derogations would result in a variety of interpretations which would introduce a substantial element of uncertainty into our law. When the, alas! late Lord Morris of Borth-y-Gest debated this matter he said: 1011To enact this Bill would involve and introduce a parade of uncertainties".—[Official Report, 29/11/78; col. 1376.]It was characteristic language of a dear, lamented noble friend.
The noble and learned Lord, Lord Diplock, expressed his anxieties in his customary vigorous language in our debate on the Select Committee's report, when he said at col. 1366:If this Bill becomes law in its present form, it will be open to every fanatic, every crackpot, to challenge any law they disagree with and which they think—indeed can verily suggest—detracts little or anything at all from the absolute right conferred by the first sentence in each article".He deplored, as did others, the effect of the impact of incorporation and the decision-making which would fall upon the judges if the convention became part of our law. He said (col. 1367):The administration of justice in our country depends upon the respect which all people of all political views feel for the judges, and in my opinion that respect depends very much upon keeping judges out of politics. To pass this Bill of Rights cannot but have the tendency to bring judges more and more into politics. That seems to me to be a sufficient disadvantage, and so far as I am concerned, when it is put into the balance, it tips it down upon the side of not passing a Bill in the form of that which is proposed".I am bound to say I greatly fear that this uncertainty and the broadness of the terms may well result in a great increase of litigation in our courts if these provisions became part of our law.
My Lords, I promised that I would not take up too much of your Lordships' time on this occasion as you have been very forbearing with me before, but I should just like to say this: The convention exists as a great international instrument. We have ratified it, and we have given our citizens powers under it, and I do not think there is any reason to believe that Parliament and Government in this country are likely to act in ignorance of our treaty commitments. I cannot now recollect whether it is a breach of the Official Secrets Acts to mention the existence of the Legislation Committee, but I venture the risk of doing so on this occasion, enjoying of course the protection of the privileges of this House to a Member; but certainly my recollection is—and I have little doubt that it will be happening again under the eagle eye of the noble and learned Lord the Lord Chancellor, who, it may be, is a member of the Legislation Committee—who knows?
§ Lord ELWYN-JONES
My Lords, it may be that the committee under this Administration also will be watchful to see that any proposals that come forward that are in derogation or contrary to the provisions of the European Convention, do not go through the watchful eyes of the Legislation Committee, and I can recollect many occasions when that happened in my experience.
Therefore the conclusion that I have come to is this, that I am afraid I cannot myself give my support to the Bill. I am certainly not dogmatic in the views that I have sought to express about it. I do not expect that my noble friend who will be winding up the debate will be inviting your Lordships to divide upon the matter, and I have little doubt that in the fullness of time we shall have further opportunity of finding out whether what the noble Lord, Lord Wade, has said for the third time really is true.
§ 4.35 p.m.
§ Lord CARR of HADLEY
My Lords, I, too, should like to thank the noble Lord, Lord Wade, and to congratulate him on bringing this Bill before the House. In this matter he does indeed show a truly biblical importunity. I hope that in due course his prayers to your Lordships will be answered in a favourable way. I will certainly assist him in trying to bring about that result.
For the last 10 years or so I have found myself in growing concern about the need for constitutional reform in this country and it is in that context that I wish to support the noble Lord's Bill. Reference has been made to the very fine balance of opinion about the value of a Bill of Rights that was shown on our Select Committee, and I must admit that there was a fine balance of opinion in my own mind. I answer it in favour of the Bill; but I have to say to the noble Lord that although I genuinely wish to support the Bill, I cannot hold out very high hopes that, on its own, it will supply what I think is necessary to allay the concern which I and a growing number of your Lordships, and certainly many other people outside this House, probably 1013 feel about the workings of our constitution at the moment.
May I say with respect to the noble and learned Lord who lately sat upon the Woolsack that I am afraid that his speech tipped me rather more in favour of the Bill than before, for one reason: he expressed at one time that he was doubtful about the appropriateness of asking learned judges in this or any other country to decide about the pros and cons of the merits of great general issues. As he said, truth is many-sided: seven learned judges may think one way and another seven may think the opposite way. The noble and learned Lord said that he preferred Parliament; but I am bound to say that having been a Member of Parliament for nearly 30 years—26 of them in another place—I cannot really have much faith in Parliament as we know it today dealing properly with these general issues. It might be different with Parliament in a reconstituted form. It seems to me altogether too arbitrary and too "chancy" as to whether it does get down to these subjects. I have no doubt that it can get down to them but, to put it mildly, there seems to be no guarantee that it will do so.
Those who object to a Bill of Rights on those grounds perhaps do not do enough justice to the feeling of many citizens of the importance of being certain of being able to have a libertarian grievance made subject to an impartial review. The outcome of that review itself may not be clear: seven judges may decide one way and seven the other, so the outcome may not be clear. Truth is not always one-sided and clear, but nevertheless there is satisfaction, there is relief in knowing that at least a grievance can be subject to a review and is not subject to the "chanciness" of whether Parliament will, in one's own lifetime, get round to it.
So while on balance I support this Bill, I do not wish to argue my support on the basis of the pros and cons of its legal efficacy but more to put it in the general context of my concern for constitutional reform. My real cause for concern, which has grown very strongly indeed, is that our democratic institutions in this country as they are now functioning have really ceased to provide the effective checks and balances which I believe 1014 are essential for the safeguarding of democratic freedom in this or indeed in any other country. The power of a majority in the House of Commons has now in fact become absolute. That might be all right, my Lords, if the majority in the House of Commons were a representative majority, but of course under our present electoral system, it is not. An overall party majority can be, and usually is, obtained by a party which has won the votes only of a minority of the electorate.
That too may not have mattered too much in the past in this country, when the major contesting parties shared a great deal of common ground about the nature of our society which they wished to see and the nature of its economy. Rightly or wrongly, in my view, unfortunately, political beliefs have polarised enormously during my active political lifetime, and now one has the position that a party commanding an absolute majority in the House of Commons, however small, can enact fundamental changes which may often also be irreversible changes; and no one can stop them from doing so, even though those changes may be desired by only a minority even of the party in power and definitely feared and opposed by a majority of the electorate as a whole. This seems to me the basic position of which we have to take notice. It is, as my noble and learned friend the Lord Chancellor described, I think for the first time, in those vivid words, the state of an elective dictatorship. I do not believe that is a situation which we should be content to see continue.
If one takes that view, there really are only four effective ways of protecting ourselves against the danger of this elective dictatorship. First there is electoral reform of the House of Commons itself, some form of proportional representation. Secondly, there is reform of your Lordships' House so that it may acquire natural authority—which may be even more important than increasing its formal powers—and once again become an effective check and balance on our constitution.
§ Lord ELWYN-JONES
My Lords, if the noble Lord will allow me to intervene, is he saying that we are now enjoying the privilege of an elective dictatorship?
§ Lord CARR of HADLEY
My Lords, I will deal with that in a moment if the noble and learned Lord wishes, but perhaps I may pursue this point for a moment. The third way is the one which is before us today, the enactment of a Bill of Rights. And the fourth, I suppose, is the adoption, as in some other countries, of a written constitution. What I want to submit is that we need at the very least one of these measures, and in my view preferably not less than two of them.
My personal first choice is a form of proportional representation for another place. I think that is the most effective, most fundamental, and in the long run the indispensable single reform which would put this matter right. I have bewailed, in Parliament and out, the fact that the last Labour Government when they first attained office did have an absolute majority in another place, did enact fundamental changes, some of which were very close to being irreversible, in spite of the fact that they had won their absolute majority with the votes of only 28 per cent. of the electorate or 38 per cent. of those who voted. Of course, I take the point that that is not the only case. The present Government, which I am proud to support, even with its much larger majority in the House of Commons still has the vote of less than 50 per cent. of those who voted.
It is some time since I did this research, but I believe I am right in saying that it is as long ago as 1900 that a party standing on its own actually came to office in this country with an overall majority of those who voted in the general election which returned it to power. That, strangely enough, was the Conservative victory in 1900. Although there was a much smaller parliamentary majority in the so-called Liberal landslide of 1906, nevertheless the Conservative victory of 1900 was I believe the last occasion on which a Government in this country came to office on the strength of the votes of the majority of those who voted in the election. Indeed, it has never happened since we have had universal suffrage.
I really do not believe that this is a satisfactory state of affairs, as long as the other place has this absolute power. As I say, my first choice would be to change things in another place. My second choice would be reform of your Lordships' 1016 House. My third choice is the one before us today; namely, a Bill of Rights. But for this to be effective it seems to me to be necessary to couple it with the fourth option, namely, a written constitution. I must say that of all the four choices this is the one I like the least. I do not say I oppose it, but I approach it with certain qualms and uncertainty. It is certainly the most foreign to the very long established British tradition.
§ Lord CARR of HADLEY
Yes, my Lords, that is the fourth, and I hope I have made clear to your Lordships that I have considerable reservations about that. But what we are considering today is the third, namely, the Bill of Rights, and I do support it, I repeat, but I think it is the least effective of all those four. Although standing on its own it is better than nothing—and that is why I wish to see the noble Lord, Lord Wade, successful—I cannot believe that its efficacy will be sufficient to meet all that is needed to allay my own growing concern, which I suspect is shared by many people inside and outside Parliament. So in conclusion, I wish to appeal to my noble and learned friend——
§ Lord FOOT
My Lords, before the noble Lord concludes perhaps he would allow me to ask a question. He has drawn attention to the three ways in which he thinks that the evil of an elective dictatorship could be avoided. Would he agree that, so far as this Bill of Rights is concerned, it does not provide any safeguard against an elected majority in the other place carrying through a measure which intrudes upon the rights of the subject, because of course it is provided under Clause 3 of this Bill that if there is a conflict between subsequent legislation and the provisions of the convention then, unless they can be reconciled, the subsequent legislation must prevail?
§ Lord CARR of HADLEY
My Lords, I do agree, and this, of course, is one of the reasons why, although I welcome this Bill, I am bound to say that it is the least of all the measures that I think necessary.
1017 So may I conclude by appealing to my noble and learned friend the Lord Chancellor. We have noticed that one noble and learned Lord moved from a position on my left to a position opposite me while maintaining the position he held the last time this Bill was debated. I remember with pleasure and vividness how, when he was on the Opposition Front Bench, my noble and learned friend the Lord Chancellor came out in support of this Bill; and I hope that we might hear the same from him tonight. May I just say this to the noble and learned Lord. I certainly realise, as I am sure all noble Lords realise, that he is in a position of greater constraint than he was when this matter last came before the House. But I am sure all your Lordships know that, whatever constraints he may be under at any particular time, he is a doughty and effective fighter for the cause of dealing with this problem of an elective dictatorship in this country. I do hope that, whatever the Cabinet of which he is a member may have decided about the view they must take about this Bill, he will assure us that he will use his maximum strength within that Cabinet to convince them of the importance which your Lordships attach to the need for constitutional reform in one form or another.
We may each have our preferences, and I would not wish to be dogmatic or to die in the last ditch for any one of them. What I would really feel let down by would be if this Government which I support went through its term of office without addressing itself to the need for constitutional reform in some fundamental way. They may not opt, and I fear they will not opt, for my own first choice, but I hope they will do something. Otherwise they will not be being true to the basic precepts and principles of the party to which I belong, and of which they are the representative Government; namely, that the maintenance of our institutions should be the first objective of the Tory Party. It seems to me that our party is a constitutional party, and when I look at our institutions today I feel that in the last decade or so I have seen them decaying in front of my eyes from lack of proper maintenance. So I beg my noble and learned friend to use all his influence to ensure that, even if it is not my preferred form of maintenance, some effective form of maintenance and 1018 modernisation is brought to bear on the building of our constitution.
§ 4.50 p.m.
§ Lord REDCLIFFE-MAUD
My Lords, first I should like to say that I personally, in welcoming what the noble Lord, Lord Wade, has done for us for the third time, must assure my noble friend Lord Carr of Hadley that I do not believe that the passing of this Bill will do anything to change the constitution in the way in which the noble Lord has suggested he thinks it needs changing.
It is important that we should be clear in our minds about what it is that is before us. I remind your Lordships that the Select Committee consisted of people drawn from all parts of the House, including two Independents who disagreed with each other. The first witness was the noble and learned Lord who sits on the Woolsack. It was he who first started my conversion to the position in which I now stand in support of the Bill of the noble Lord, Lord Wade.
I entered that committee feeling that I distrusted profoundly Bills of Rights and I did not think that this would help—it would merely throw a spanner in the works of the legal system and give a great deal more money to lawyers, which I did not mind. We heard evidence on both sides, from not only those who supported the Bill of the noble Lord, Lord Wade, but from those who opposed it. As the evidence accumulated I found myself becoming convinced of one thing and one thing only—namely, that on balance, having signed and ratified the convention; having therefore since 1950 committed ourselves as a country regardless of party in that respect; and having gone further (as the noble and learned Lord, Lord Elwyn-Jones, reminded us) and allowed the subject to go and complain against his own country in the Strasbourg Court, we did not do what we should have done, which was at the same time to make this a part of the law of the United Kingdom.
I do not want to weary the House with the reasons for that, which were clearly set out in the Select Committee's report and which are probably familiar to all noble Lords. The "Golder" road to Samarkand—it took Mr. Golder five years to reach Strasbourg and to get his 1019 decision—is not in my opinion a crucial point. Moreover, to be quite honest, it is not to help the Golders of this world that I am particularly concerned in supporting this Bill. However, I think that what the noble and learned Lord, Lord Elwyn-Jones, told us about his celebration of the 25th birthday of the Strasbourg Commission and Court, which culminated in this picture of the court dividing seven for, and seven against, confirms my feeling that, noble and distinguished though the Strasbourg Court I am sure is, and particularly distinguished in view of the contributions of Waldock, Fawcett and others from this country, I do not regard that as a suitable court of first instance for the citizen in this country who knows his convention and thinks that he has been aggrieved.
From the nature of the pattern, the Strasbourg Court is designed as a court of appeal. The noble and learned Lord, Lord Elwyn-Jones, and others on the committee who disagreed with the noble Lord, Lord Wade, were at pains to point out the different technique, which did not require appeal to our own courts, for the convention to have its perfect way. Frankly, it was at that point that I became convinced that they were wrong and that nothing can get away from the fact that, if the Bill receives not only a Second Reading—as I hope very much it will this afternoon—but a Third Reading, and is passed in due course by this House (whatever may happen in another place) what will really matter is that then the courts of this country can start absorbing the content of that convention and making the best of it, the common law and statute law of this country. That is the process which I believe will he encouraged if their Lordships in our own courts, and the other parts of the judiciary, are told that that is something that they must do.
I do not think that we are being honest to our own citizens so long as we deprive them of the help of our own courts in deciding what, if anything, is the relevance of this international convention to the common law and statute law of this country. It is partly as an educational experiment that the Bill of the noble Lord, Lord Wade, is valuable.
The noble and learned Lord, Lord Elwyn-Jones, mentioned that the Legislation 1020 Committee and members of the Cabinet are advised—as of course we know they are—by their able civil servants, how far any particular part of a Bill may contravene the convention. Of course, Ministers know and so do the particular top civil servants know, as the noble Lord, Lord Allen of Abbeydale, has always known. But do not let us kid ourselves. That is not true of Whitehall as a whole. I speak with shame as one who was head or so-called permanent head—acting or otherwise—of live departments at various times who had never heard of this convention or had read it until he became a member of your Lordships' Select Committee. I do not say that that is characteristic because many of my colleagues are much better behaved than that. However, it is simply not true that the people of this country know anything about this convention—that it was signed in 1950; that it was ratified; and that they have a right to go to the Court and Commission at Strasbourg.
I believe that if one of those terrible questionnaires were sent out and a great deal of money paid to the expert pollsters to tell us how many people know about this, and their answers to questions which I could set them about the convention, I am convinced that the result would be deplorably depressing to those of us who think that this is a statement of human rights which the people of this country share with most of Europe; which they share with large parts of the British Commonwealth; and which they should share—and please God! one day will share—with people behind the Iron Curtain. That, in its international aspect, is something that I find particularly attractive in the Bill of the noble Lord, Lord Wade. Here, of course, we are only dealing with what, to my mind, is the narrow point of whether we should allow, or indeed insist, that the courts of this country should be involved as they will be if the Bill is passed.
However, there is a wider aspect. Human rights is a cause which I believe should be on the agenda of every civilised country in the 1980s. It will take time. But here is a place where we overstep the bounds of nation statehood and think first, as this convention does, of those in Europe who have signed it, and also of the citizens of the world. It is not simply a statement that the citizens of this country 1021 have human rights, which no Government of whatever party should infringe except in the protection of rights of other individuals. It is not a bare defence of individual freedom. It is a defence of the rights of each individual not only to have the rights but to surrender those rights when that is necessary for the rights of his fellow-citizens in this country, in Europe and in the world. That is what particularly appeals to me and I think to the noble Lord, Lord Carr of Hadley, who opened his speech by saying that it is not the mere passing of this Bill that is at stake, but that it is part of a movement and that we must start at home.
I believe that we have waited far too long. Your Lordships have done a service—and no one more than the noble Lord, Lord Wade—in insisting that we go on and on talking about this. Even if we reached agreement here, it would not meet my point about the need for civil servants and local government officers to be informed of the attitude which, by international treaty, they are committed to adopt with every client with whom they deal.
§ 5.2 p.m.
§ Lord LLOYD of HAMPSTEAD
My Lords, we have had a long series of debates on this subject, plus a report from a Select Committee composed of Members of this House. One might well be pardoned if one takes the view that there is nothing more to be said on this subject—at least in this House—although it is fair to say that the other place has been, if not notably silent, at any rate very quiet on the subject, which perhaps in itself is of significance. On previous occasions I have ventured to point out—and I repeat it now—that, notwithstanding some of the emotive if not emotional arguments that one sometimes hears put forward, there appears to be no demand by the public for this Bill at all. On the last occasion when we debated this I mentioned the complete lack of interest of the national Press in the subject matter of our Select Committee report when it was published, and the fact that only one member of the Press turned up at an arranged Press meeting—that one member being a gentleman who is known for his passionate interest in this subject.
Recently I was interested to hear a BBC programme in the "You, the Jury" series. After a careful presentation of 1022 arguments by both sides, with the calling of eminent witnesses who were cross-examined during the proceedings, a vote was taken of those present, and about 70 per cent. of those present were against the existence of a written constitution with a Bill of Rights. Therefore, the idea of there being a sense of need on the part of the public has not manifested itself at all. Nor, as my noble and learned friend Lord Elwyn-Jones pointed out, is there any great principle at stake here because we are all in favour of human rights. The only difference is whether it is an appropriate procedural step to take to incorporate the terms of the convention into our law.
It seems to me that many of the people who favour this step rely on what may be regarded as a rather emotional viewpoint, stirred up by their passion for human rights, which we who oppose it equally share. On the other hand, there are those who support this Bill but in a very lukewarm spirit. I am sorry to see that the noble Lord, Lord Carr of Hadley, is not now in his seat, but in his speech the noble Lord appeared to have very lukewarm enthusiasm for the Bill and thought that there were many other better ways in which we could achieve the result; but as an ultimate pis aller, so to speak, he was prepared to support the Bill.
However, when one looks at the arguments against the Bill and the disadvantages which it would occasion, one would have thought that any careful scrutiny of them would show that they are a very great force indeed. I shall not reiterate arguments that have been dealt with at great length in previous debates. But it is necessary to say shortly that those arguments fall under two headings. One is the immense uncertainty that it would occasion to our legal system. Here one has only to look at the provisions of Clause 2 of the Bill, which the noble Lord, Lord Wade, has already read to us, which provides in substance that where there is a conflict the provisions of the convention and its protocols will prevail. What does that mean? It means that the whole of our existing law is subject to these provisions. Therefore, it is open to argument, and it possibly may be held in many cases that in such a conflict the previous law is overruled.
Therefore, a huge area of uncertainty will be created. Anyone who doubts 1023 that should read—if he has not already done so—the detailed exposé of this matter put before the Select Committee by Sir Henry Fisher, a former and eminent High Court judge who is now the President of Wolfson College, Oxford. At pages 213 to 215 of the Minutes of Evidence taken before the Select Committee he gave a full account of all the areas of uncertainty which would be created by a Bill of this kind. It was detailed evidence which, to my knowledge, has never been controverted.
My noble and learned friend Lord Elwyn-Jones referred to the observations in our previous debate of the late and most lamented Lord Morris of Borth-y-Gest when he expressed his vigorous opposition to a Bill in this form and indicated the absurdity of enacting into our law such general propositions as, for instance, everyone has the right to freedom of expression, everyone has the right to life, and so forth; statutory law should be as clear and certain as possible, and this would produce—as my noble and learned friend has quoted—a parade of uncertainties and would, indeed, create endless opportunities for litigation.
I was rather surprised to hear the noble Lord, Lord Carr of Hadley, dismiss the argument that Parliament is the appropriate place to judge public policy of importance, rather than the judges. He seemed to think that the argument in favour of Parliament was disposed of by pointing out the imperfections of Parliament and the extent to which it does not reflect a precise mathematical representation of the electorate. Surely, in a democratic system the reason why Parliament is to be preferred as the source of public policy as against judges is that Parliament is democratically elected and is accountable to the electorate. Judges, however eminent and however distinguished, are appointed by the Government—though of course they are completely independent; nobody disputes that. Very properly, they are not elected. They should not be elected. Nothing would be worse in my opinion than a judiciary who are elected. That is not the nature of the judiciary. But they are appointed and, having been appointed, they are not accountable, and therefore they are not a 1024 democratic source of political policy. It is for that reason that Parliament is to be preferred as a source of public policy, and the judges are inherently an unsuitable forum for this kind of decision.
This leads one to the second fundamental objection to the incorporation of this sort of convention into our law—that it will fundamentally change the role of the judiciary and the tradition of the common law. I know that no less a distinguished judge than the noble and learned Lord, Lord Scarman, has argued strongly in favour of extending the judicial role in this way, and has spoken in his evidence to the select committee of freshening up the principles of the common law. Indeed, in the last debate which took place in this House he rather dismissed my opposition to a Bill of this nature as merely an example of complacency. I do not feel that I can justly be accused of complacency on this issue. On the whole my interest, as I think he will be the first to admit, in law reform has been manifest for many years. But I believe—and I hope that this is not complacent—that we should be slow to tamper with institutions, which have served us well for a long period, for somewhat illusory benefits.
In this connection I would venture to refer to the recent address—and my noble and learned friend Lord Elwyn-Jones also referred to it—of Sir Garfield Barwick, the Chief Justice of Australia; one of the most distinguished judges in the whole Commonwealth, as is universally agreed. He delivered a recent address in London on the subject of judiciary law, and he pointed out firmly the dangers of putting our judiciary in the role of law makers. He saw an antipathy, as he put it, between the spirit of the common law and a declaration of rights. He particularly referred—and this is a matter of considerable interest—to "a tendency in some quarters to look longingly across the Atlantic to the greater freedom of the United States judiciary". He then went on to point out that, in a community with a lively parliamentary responsiveness, judicial activism of this sort is really unnecessary and indeed indesirable.
§ The LORD CHANCELLOR
My Lords, does not the noble Lord see a certain paradox in Sir Garfield Barwick's remark, seeing that he has spent his entire 1025 legal life under one of the most rigid written constitutions at present existent in the world?
§ Lord LLOYD of HAMPSTEAD
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his intervention, but with great respect I cannot see that because Sir Garfield may have operated under a statutory constitution—which incidentally is entirely different from the American type of Bill of Rights constitution—that in any way disqualifies him from expressing views on the subject of judicial activism, with which he is as familiar, I would venture to think, as any other common law judge.
What is often not realised is that in the United States itself, which is of course the prototype of this type of Bill of Rights constitution, there is at present a very deep disquiet felt at the way in which the judicial role is developing on legislative lines. May I quote one learned writer who wrote recently:All too many federal judges have been induced to view themselves as holding roving commissions as problem solvers".Another learned writer said:There is unease at judicial authority striking down laws enacted by democratically elected legislatures. Where, after all, is the accountability of life tenured judges?This is precisely the point that I was making in regard to Lord Carr of Hadley's preference for judges as against Parliament in the making of public policy.
Indeed, in the United States at the present day, there is a substantial critical literature on this subject expressing in great detail doubts as to whether the judges, whatever judicial skills they naturally possess, nevertheless possess the right skilled training and expertise to give competent decisions on broad matters of policy. Indeed, one wonders why there is this enthusiasm for American style constitutions at the present day in certain quarters in this country. In many ways it is very arguable that the American constitution is at present proving to be far less workable than our own both in a political and a legal sense, but to develop this would take me too far afield.
I should, in conclusion, like to comment briefly on the view that the noble Lord, Lord Carr of Hadley, expressed when he linked this Bill of Rights argument with 1026 the question of a dictatorship—a parliamentary dictatorship—and suggested that however inadequate, this might have some possible means of control. But he was the first to admit that this was likely to be pretty ineffective, as indeed emerged from Lord Foot's very effective intervention towards the end of his speech.
The fact of the matter is, as a learned writer in a recent issue of the Modern Law Review pointed out, that the law cannot be a substitute for politics. The political decisions must be taken by politicians. In a society like ours that means by people who are removable. There is in the background of all this argument—perhaps it has not become very clear in your Lordships' debates, though the argument has sometimes been pursued more vigorously outside this House—a certain feeling that in this way, through the intervention of the judiciary, it might be possible to restrain certain kinds of Left Wing, or socialist legislation. That seems to me a perilous course and a perilous argument. If what we fear is political tyranny, then we must seek to control that by political means. To try to bring the judiciary into this sort of contest can only have one effect, and that is to destroy the standing of the judiciary in the eyes of the people as a whole.
It is for that reason among others that I remain unrepentant in the belief that the European Convention is best left not as a court of first instance as the noble Lord, Lord Redcliffe-Maud, would wish to see it, but as an international long-stop, where it is of some value, though perhaps of minimal value, and that if we go further and seek to import it into the fabric of our law, that will prove a grave error and one which might inflict lasting and irreparable harm on the working of our whole legal system.
§ Lord REDCLIFFE-MAUD
My Lords, the noble Lord referred to Sir Henry Fisher's valuable evidence to the Select Committee, and he is perfectly right that Sir Henry Fisher was dead against the Bill. However, would he agree with Sir Henry Fisher in the evidence he submitted to us that in fact a plaintiff, if this Bill were passed and the convention became part of United Kingdom law, could not be worse off and could be better off than as things are today?
§ Lord LLOYD of HAMPSTEAD
My Lords, of course there may be marginal cases where an individual is concerned where that individual may derive some benefit from the Bill, but that entirely overlooks the crucial point that it is the broad effects of the Bill on our legal system which will be a much greater detriment as against those comparatively small marginal advantages which will be to the benefit of the individual. The noble Lord may not accept my argument but I hope he appreciates that it is the nature of the view put forward by those like Sir Henry Fisher who oppose the structure of the Bill.
§ Baroness GAITSKELL
My Lords, does the noble Lord recall what Sir Henry Fisher said—namely, that however bad the law is the judges must support it? I think anyone who says that is not living in the world today.
§ Lord LLOYD of HAMPSTEAD
I am grateful to my noble friend for that intervention, but if I attempted to answer it we might get into a very broad field and one which might bring our present Master of the Rolls speeding to these Benches to intervene. I will therefore refrain from attempting a detailed reply.
§ 5.23 p.m.
§ Viscount MASSEREENE and FERRARD
My Lords, I apologise to the noble Lord, Lord Wade, for hearing only the last part of his speech. Believe it or not, my train from Kent was four hours late. It got stuck on the hill coming up from Rochester, with a freight train in front. I suggested to the driver that we should try to give it a push but he replied that such a course was irregular. However, in the end we did give it a push and, very slowly, we got it going. My Lords, I shall be brief because I am surrounded by eminent lawyers and I am no lawyer. However, I wish to make it clear at the outset that I support the Bill and hope that the old adage "Third time lucky" proves to be the case for the noble Lord, Lord Wade. After watching events over the years I feel that the individual in this country has been losing his individual freedom. We have had innumerable statutory instruments, enabling legislation and an avalanche of regulations; in many respects the individual is having his freedom taken from him. At one time 1028 Britain was in the forefront of freedom for the individual, and I have always believed that freedom of the individual was the most important freedom, perhaps even more important than freedom of the State.
Indeed, one can say that an Englishman's home is no longer his castle. I read somewhere of the great number, in fact thousands, of officials who have the right to enter anybody's home. And when one goes outside one's home there are all the various Government bodies, commissions and boards such as the Forestry Commission and the Highlands and Islands Development Board, with compulsory powers; I agree that they use those powers carefully, but nevertheless they have them and that is another reason why a Bill of Rights is essential. As my noble friend Lord Carr of Hadley said, this is especially so as we have no written constitution. An unwritten constitution has served us well in the past, but times have changed and—who knows?—we might have a lot of wild men in power.
§ Viscount MASSEREENE and FERRARD
We may already have had a few, my Lords. In any event, it could be dangerous without a written constitution. I was reading a report on SLADE, the artists and writers union; perhaps other noble Lords have read it. The report had some strong criticism for some of SLADE'S members. Referring to recruiting people into the union it said:without any regard whatsoever to the interests or welfare of the respective recruits".I have with me a newspaper cutting on the SLADE report in connection with a man named Marriner who runs an art studio in London. Apparently he is all for having unions but believes membership should be optional, and I quote from the cutting:One evening two men arrived at my works and asked if they could see my staff. The staff declined an invitation to drinks with the two men, who turned out to be SLADE officials. A few weeks later Mr. Marriner was accosted by one of the two men, who said he wanted to organise the staff into SLADE. Despite objections from the staff, the SLADE official"—apparently the national organiser, Mr. Martin—said, ' Unless everybody joins within 14 days we will close you down. We will block everything you produce'.1029 Everybody in the studio joined after that, except for one man, and he had to leave. Do we not require a Bill of Rights? It is an appalling situation. I think the noble and learned Lord, Lord Elwyn-Jones, said that, after all, we have ratified the convention, and all that, and that any man who feels himself aggrieved in this country can appeal to the Strasbourg Court. Well, of course, that is quite true. But, my Lords, it is a very expensive process, and I doubt very much that many people realise that they can do that. I also feel that, if there are a lot of people from this country who consider that they have been unjustly treated and they go and appeal at Strasbourg, that will not do our prestige much good. There was a case involving three railway workers. I think that British Rail dismissed 56, or, it may have been, 54 men for not joining the appropriate railway union, and three of them appealed to the Strasbourg Court, at great expense. I understand that their appeal has been upheld, and presumably they are due quite a lot of compensation from British Rail. That is the only example I know of. It was presumably very expensive for them; I suppose they were backed financially.
But how much better it would be if we enshrined the European Convention on Human Rights into our own law. I cannot understand the objections against doing that; they do not seem logical to me. I can understand the behind-the-scenes fear of so doing. I do not want to introduce any party feeling into this—though I cannot avoid a little—but obviously it could be rather unpleasant for the unions. But I am not going to dwell on that. I will not speak any longer because I have said quite enough, and I am surrounded by many eminent lawyers who are far more able than I am to deal with this matter. But I should like to say again how heartily I support the noble Lord, Lord Wade, in his Bill, and I hope it has success.
§ 5.33 p.m.
§ Lord SCARMAN
My Lords, I should like to join other noble Lords in congratulating the noble Lord, Lord Wade, on his persistence in the noble cause of human rights inside and outside this House. Like the noble Viscount who preceded me, I hope that third time will be lucky, and whatever may happen to the Bill in another place, I earnestly beseech this House to 1030 give it a Second Reading, to study it in Committee, and let it go on its way to another place. It is sad in a way that this modest little Bill—to which I shall be returning from the constitutional flights on which some noble Lords have taken us—should excite such interest in constitutional and political questions. Those who have supported the Bill have done so on broad constitutional grounds with which the Bill is only remotely linked. Those who have opposed it have in some ways queered my pitch, talking of judicial activists, judges entering politics. I began to wonder whether, as a professional judge who has already earned his pension, I could conceivably rise and address your Lordships on this Bill. I decided that I could because my pension is already safe.
Let us look at the Bill—only three clauses of it. I commend the two principles to be found in the Bill. The first principle is that the European Convention on Human Rights and Fundamental Freedoms should be incorporated into our law and should be enforceable in the ordinary courts of the country. The second principle is that if Parliament wills—and this is a matter for Parliament, not for judges—that this Bill of Rights should become part of its statute law, then so long as it is part of the statute law of the Kingdom, it shall enjoy pre-eminence over other statutes. That does not mean that it will be entrenched and Parliament cannot amend or repeal it. It merely means that, so long as it is on the statute book, it shall enjoy pre-eminence.
Surely in a civilised society such as ours we should be not only prepared, but eager, to ensure that a statute, whose duty it was to protect our human rights and fundamental freedoms, should have preeminence. It is really no good paying the slightest attention to the siren, sweet voices of some noble and learned Lords whom we have heard this afternoon, and say that this will create uncertainty; it is completely inimical to the legal traditions of our country. Not at all! Magna Carta has always enjoyed, and still enjoys, the sort of pre-eminence that this Bill suggests the European Convention should have. We have a Bill of Rights almost 300 years old. Since it was enacted it has always enjoyed, and will continue to enjoy, so long as it remains on the statute book, pre-eminence over other statutes, and indeed over the common law.
§ Lord Lloyd of HAMPSTEAD
My Lords, will the noble and learned Lord permit me to put one question to him on this point?
§ Lord SCARMAN
My Lords, I hope that the noble Lord will please allow me for the moment to develop my theme. I wanted to point out that the preeminence of the 1689 Bill of Rights and Act of Settlement is such that our parliamentary Sovereignty and the independence of the judges both depend upon it. The European Communities Act of 1972, as long as it remains on our statute book, will enjoy the sort of pre-eminence that I am discussing.
I cannot believe that we would be prepared not to give a Bill of Rights the sort of pre-eminence proposed in Clauses 2 and 3 of this Bill, if we were prepared, as I suggest we should be prepared, to incorporate it into our law and to make it enforceable. The argument against incorporating it into our law can take many forms. One form that is commonly taken is this. It is quite unnecessary to introduce the European Convention or a Bill of Rights into our law because our law already secures to us the various rights and freedoms which are set out in the convention. Well, the European Court of Human Rights does not think so. We have already had from the noble Lord, Lord Redcliffe-Maud, a reference to the Golder case. There was the recent Sunday Times case dealing with the freedom of speech.
There are question marks in the minds of most lawyers over the right of privacy in our law; and one could enumerate other vital human rights and fundamental freedoms protected by the European Convention which are certainly doubtfully protected, and, one would think, not wholly protected, by English law. So there is a case for saying that this convention is necessary because we are failing in our duty—and it is a duty imposed upon us internationally by Article 1 of the convention—to secure to persons within our jurisdiction the rights and freedoms set out in the convention.
Then, surely, my Lords, there is a great advantage in having these rights and freedoms, which we recognise it is the duty of our State to secure to our citizens, 1032 enforceable in the ordinary courts of our country. It is really absurd, I would suggest, to say that the enforcing of those rights by our judges under a statute enacted by Parliament—because that is what this Bill will be if it is passed—would be bringing the judges face to face with political, non-justiciable issues. European judges at Strasbourg have been handling these matters perfectly well for a very long time. There are our colleagues, fellow members of the Council of Europe, who have signed and ratified the European Convention, who have incorporated it into their law and who, so far as I know, are having no difficulties with their judges and no difficulties with the substance of their law. In fact, to use for a moment one of the European languages recognised by the European Convention, I know of no judge in any State which has ratified the convention who has been led to behave, because of the convention, au-dessus de sa gare—not one. I would suggest to your Lordships that these fears can be set upon one side.
Now, let us look just for a moment at some of the objections which have been developed by the noble and learned Lord, Lord Elwyn-Jones, and others in the course of the debate this afternoon. I would summarise them (I hope not incorrectly) as threefold: first, that there would be the risk of a flood of litigation from crackpots and others; secondly, that the judges would be led into politics and would become powerful in areas where they should exercise no power; and, thirdly, the uncertainty of the law. Of course, there would be more litigation. The litigation would be, not all the time, that of crackpots and fanatics—there are plenty of those litigating in the Strand at the moment. It would be litigation arising from minority groups, from individuals and others who have no political clout, who have grievances and who would then be able to turn to our courts seeking judicial redress. If litigation in this country is swollen by the addition to litigants of immigrants, convicted prisoners and other minorities and individuals without political clout because they have grievances which they think constitute infringements of their human rights or fundamental freedoms and they want them adjudicated upon by judges, why ever not? What is there to fear in that? Is there not very much to welcome in it?
1033 My Lords, this alarm about floods of litigation might be said to be no more than a respectable facade for suppressing that type of litigation. Why should those people without any political clout have to go to Strasbourg to get justice? And, if judges in Strasbourg can give them justice, what is the sense of the argument that if an English judge, administering and interpreting an Act of Parliament—because that is what he would be doing—should dare to give him justice, that English judge is going beyond forensic bounds and is moving into the area of politics? I beg to suggest to your Lordships that that objection is nonsense.
Now, let us look at the next objection—that of the overpowerful judge. As long as a judge is applying either the common law or a statute enacted by Parliament, and is called upon, when applying the statute law, to interpret it, he is performing a judicial function. He will be doing no more than that if called upon. as Strasbourg judges are regularly called upon, to interpret a statutory Bill of Rights. It is said by the lawyers; Oh!, but this convention is in too broad terms. This convention is declaring matters which should be the subject of Parliamentary redress, not judicial redress". Of course, as long as the convention remains on the periphery of our law, poking its nose in occasionally when some bold judge in the Court of Appeal or elsewhere thinks it valuable to take a look at it, as long as it remains in that no-man's land on the frontiers of our law, then it is somewhat political to start looking at it: but, if we bring it respectably and legitimately into the law by a statute enacted by Parliament, what is there then in the principles so introduced which is so dangerous that a judge cannot read them, understand them, interpret them and apply them?
Finally, there is the uncertainty argument—the uncertainty of the law. We have heard a lot about that, but let me tell your Lordships what I heard on Radio 4 the other night. It was a programme entitled "Talking Law", and my noble and learned friend Lord Denning, who unfortunately is not here this evening—he has deserted the Floor of the House for the stage of Lincoln's Inn, where I am told he is giving a performance—was asked whether he advocated the introduction and incorporation of the 1034 European Convention into our law. "No", he said; "I like it where it is. When I want to use it, I can". My Lords, that is uncertainty. Either my noble and learned friend sitting judicially should be required by law, where it is relevant, to pay attention to the European Convention, or he should not. At the moment I have every sympathy with my noble and learned friend and, indeed, with other judges in handling the European Convention.
When I sat, as I was privileged to do for a number of years, with the Master of the Rolls in the Court of Appeal, from time to time, particularly in immigrant cases, we referred to the European Convention, because we were concerned to keep our administration of the immigration laws in line with the convention. But it was a tentative business and, of course, anything that we did could not in the slightest degree affect or guide the development of the human rights jurisprudence that is developing in respect of this convention at Strasbourg and elsewhere. That is a great loss to Europe as well as to this country.
It is really hopeless to talk about uncertainty when the European Convention in its present limbo is creating uncertainty in our law. There is another little opening of uncertainty in regard to the convention. The European Court of Justice in Luxembourg, which administers, as we all know, the Common Market law, has declared that when a question of human rights comes before it in the course of its jurisdiction it will apply the European Convention. I need not tell your Lordships—I have said it before—that, of course, the Luxembourg Court is the only constitutional court that we have. It is a constitutional court by virtue of the European Communities Act 1972 and its decisions are such that in the area of Common Market law we have to follow it. So there we are. In this little area of law covered by the Common Market the convention must be followed.
But when one is dealing with minority groups, when one is dealing with individuals, who cannot get their grievances handled in Parliament, we deny the convention to them. But when the commercial men are fighting their cases in the Common Market law, the Luxembourg Court which we must follow is applying 1035 the convention. This limbo should not be allowed to continue. We can end it by taking our courage in our hands and incorporating the convention and making it enforceable at law.
My Lords, I have spoken for too long but I wish to end with a reference to Northern Ireland. There was a very moving debate in this House last week—and I was privileged to listen to it—on the condition of Northern Ireland; the need for a political or constitutional initiative, the need for stability in administration and local government and the need to breed in the minority population of Northern Ireland a sense of confidence in British law and British administration. It is no accident that perhaps the best document produced in this country on the European Convention and the Bill of Rights was presented to Parliament in 1977 by the Northern Irish Standing Commission on Human Rights. It was a unanimous report that Northern Ireland required a Bill of Rights. A majority wanted it as part and parcel of a United Kingdom Bill of Rights, taking the European Convention as the Bill of Rights. One dissentient said, "Let us have it whether those people on the other side of the water have it or not". And that in a community where Her Majesty's Government have considered it necessary from time to time to file notice of derogation under the European Convention in Strasbourg. I suggest that that is food for thought.
Of course, the law is no panacea for social, political and economic troubles; but it can help. And if there are remedies available according to a law which is universally understood, acknowledged and upheld according to principles which people can see, understand and accept and which they know the courts are going to accept, then, within those limits, the law will help. And it is within those limits that the European Convention will play a very important part. If this becomes law, the European Convention will be a guide to legislators, to administrators and to judges that Parliament requires these principles to be observed in all aspects of our public life when the State, whether administratively, judicially or legislatively, is dealing with the subject. It is for that reason that I most fervently support this Bill, and it is for that reason 1036 that I thank the noble Lord, Lord Wade, for introducing it for a third time.
§ 5.55 p.m.
§ Baroness GAITSKELL
My Lords, it is a privilege for me to follow the noble and learned Lord, Lord Scarman, and, as on the last occasion that we debated this Bill of Rights, his speech gave me great pleasure. As a matter of fact, I should like to tear up the speech that I have here except that part of it where I say that I support the noble Lord, Lord Wade, and I would read out—declaim, in fact—the speech of the noble Lord, Lord Redcliffe-Maud. I should like to do that because it was he who really showed what the whole business in individual petitions (when it was introduced in the United Nations when I was there) really mean to the whole of the world; and the importance of it, of which very few people in this country have the least understanding.
The noble Lord, Lord Wade, once again initiates a debate on a Bill of Rights. I hope that it will not become a hardy annual We have had three. Perhaps we will get somewhere with this one. I remain somewhat conservative (with a small "c") in my approach towards a Bill of Rights, as I think is already known. I am not a lawyer and I do not feel competent enough to go further than to plead for the incorporation of the European Convention into our domstic law. That seems to me to go a long way, since there is no threat to the sovereignty of Parliament. My views have been influenced by my experience during the years when I was the United Kingdom delegate in the European Rights Committee of the General Assembly of the United Nations. It was there that I learned that human rights were the increasing concern of the international judiciary as well as the national Governments. The main point made by the noble Lord, Lord Redcliffc-Maud, which struck me so forcefully, was that the law, and not war, was the solution to human rights violations.
Reading once again the report of the Select Committee on a Bill of Rights, and turning to the chapters reflecting the judgments of those who were against a Bill of Rights, I could only construe them, from my own point of view, as being for such a Bill. I will give a few of these: one, the interpretation of race relations; 1037 two, freedom of speech; three, education; four, punishment, et cetera. Great play had been made about the dangers of incorporating the European Convention into our domestic law because this would flood our domestic law with uncertainty. But I believe that uncertainty is the prelude to change, and surely there are areas where improvement is desirable. So I remain unrepentant and I believe that to incorporate the articles of the European Convention into our domestic law is not beyond the ingenuity of our legal profession. Surely this must be true, as the present situation in the United Kingdom is in accord with the original philosophy of the European Convention. Of course, there might be conflicts but surely these can be put right when the United Kingdom law at this time happens to fall short of the standards of the European Convention.
As I am not a lawyer, as I said before, I am unable to think of the law as an immaculate conception. Surely, it must constantly regenerate itself in tune with the political changes of our time—and the changes come thick and fast today. I believe that the time has come when Parliament should exercise its power by legally incorporating the European Convention for the Protection of Human Rights into our law. Parliament now has a duty to incorporate the European Convention—for instance the provisions under Article 13—to have effective remedies for any violations of human rights in this country. If European judges can have effective remedies for such violations, why cannot English judges too have the same power to give effect to these rights? Why can German, Dutch and Italian judges exercise these rights? Today English judges must take the long, slow trip to Strasbourg. It seems to me that the European Convention is not only good for our own judges, it is also good for our civil servants, for our Members of Parliament, for all our people in fact. We agree with the moral and legal values set up by the European Convention, surely this should now have the blessing of our courts. They appear very simple rights, but they are often abused. I will give a few examples, such as the right to marry and have a family and the guaranteed right not to be discriminated against. We have all heard about the Conservative Government's new law to deprive a group of United Kingdom women of the right 1038 of genuine marriage with foreign men. This is but one instance of a violation of these guarantees. Let us think of telephone tapping, violating the right of privacy in Article 8. There are no legal safeguards against the misuse of the power of the police to tap telephones. The case of Mr. Malone, lost in the English court, has now gone to Strasbourg. There is the interference with the right of prisoners to communicate with the outside world following a Home Office standing order—that is, without being passed by Parliament—so that, if this is allowed, there is no legal redress. These are but a very few things that incorporation of the convention would allow to be dealt with in our own courts.
May I ask the noble and learned Lord the Lord Chancellor for reassurance that individuals will be able to go to Strasbourg for individual petitions, and that this will be renewed up to 1981? I would add one final sentence in favour of incorporation of the European Convention into our domestic law. This can only benefit our own laws; it does not take anything away and so can only strengthen and widen our law. It is a unique right that we are acquiring with an international Bill of Rights.