HL Deb 22 November 1979 vol 403 cc297-311

House again in Committee.

3.56 p.m.

Clause 2 [Convention to prevail over previous enactments]:

Lord WADE moved Amendment No. 2: Page 1, line 13, leave out (" enactment ") and insert (" laws or enactments ").

The noble Lord said: I beg to move Amendment No. 2. I do not think that this is a very controversial point—at least I hope it is not. During the discussions in the Select Committee much time and thought was given to the question of whether Acts of Parliament should override future Acts. It was decided that it was not within the terms of our Constitution to do so.

However, in those discussions the word "enactment" or "enactments" was used. If one examines the discussions that took place on Second Reading it is clear that we were discussing both common law and statute law as regards Clause 2. I am well aware that the opponents of the Bill were unhappy about the introduction of the Bill at all. However, as regards the supporters of the Bill, I think that we recognised that we meant both statute law and common law. We went on to point out that we were already bound by treaty, by ratification of the convention, the material words being in Article 1: The High Contracting Parties (namely, the United Kingdom) shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention ". However, we meant both the common law and the statute law. To be frank, if we approve Clause 2 we mean that the rights and freedoms under the convention will not only apply by treaty but will apply as part of our law—they will apply to common law and statute law. It is simply for the purpose of clarification that I propose the use of the words "laws or enactments". Whether it is necessary to elaborate in that way I do not know, but I do so for the purpose of clarification. I beg to move.


I am very much obliged to the noble Lord, Lord Wade, who has made it clear why he wishes to make this amendment. As noble Lords know, there is a very clear distinction in both our legal systems between statute law and common law. The noble Lord, Lord Wade, has made it clear that it is his intention that the convention should take precedence over both. The situation with regard to this clause is that the Select Committee, in the course of its report, considered a clause which would take the place of Clauses 2 and 3 in the present Bill. In relation to Clause 2, as noble Lords will remember the committee's suggestion was: All enactments passed before this Act shall he construed and have effect subject to this Act ". The Select Committee in this context makes no reference to non-statutory law. There is, of course, an established principle that statute law takes precedence over the common law.

Therefore, I venture to suggest that in the event of the incorporation of the European Convention into our domestic law by a provision on the lines of Clause 1, the courts would be unlikely to choose to apply common law which was in direct conflict with a statutory Bill of Rights This does not mean that I am in any way opposed to the principle which the noble Lord, Lord Wade, is putting forward; but rather I suggest that it may not be necessary expressly to refer to the non-statutory law.

There is a slight difficulty which 1 just mention I do not wish to make much of it. Whereas a date can be attached to enactments, it is not so easy to attach a date to a provision in the common law. That is no doubt a matter which would require to receive attention in due course. The whole content of this clause and the proposed amendment would form a very suitable part of the subject-matter for the talks to which we referred earlier.


I should like to ask why the word "Governments" in the amendment on the Marshalled List is in the plural. Strictly, I think that my remarks apply to the next amendment.


As regards the point raised by the noble and learned Lord, Lord Gardiner, speaking off the cuff, I think that it would be appropriate if it were in the singular rather than the plural. I do not know whether or not that is an oversight. I should have thought that "Government" would be appropriate.


It is probably a misprint, because the next amendment says: "Government ".


I can only hope that it was a misprint and not my own mistake. I take the point of the noble and learned Lord, Lord Gardiner, and think that he is right. The general point raises the whole question of the Bill. I hope that the Committee will not wish to divide against this amendment.

On Question, amendment agreed to.

Lord WADE moved Amendment No. 3: Page 1, line 15, leave out (" Protocols ") and insert (" such Protocols as shall have been ratified by the Governments of the United Kingdom and subject to any reservations thereto ").

The noble Lord said: I could almost call this a drafting amendment. In other places where I have referred to protocols. I have referred to: Protocols as shall have been ratified by the Governments of the United Kingdom and subject to any reservations thereto ". Noble Lords will notice that I shall seek to move a similar amendment later. That is in accordance with Clause 1. If one uses those words at all, one should use them throughout. I hope that the Committee will agree to that. I beg to move.

The CHAIRMAN of COMMITTEES (Lord Aberdare)

I understand that there is a slight misprint in this amendment, it should read: Page 1, line 15, leave out first (" Protocols ") and insert the words as printed on the Marshalled List.


As we have referred to the question of "Governments" and whether or not there is a misprint, may I ask the Committee to look again at Clause 1, because surely the word "Government" should be in the plural when it first occurs? That clause refers to the Governments of different countries which are members of the Council; whereas latterly we are talking simply about the Government of the United Kingdom. I think that it is correct as it is written at present.


I do not quite follow that point, but I shall look into it.

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 [Convention to prevail over subsequent enactments unless stated to contrary]:

4.6 p.m.

Lord WADE moved Amendment No. 4: Page 1, line 18, leave out (" Protocols ") and insert (" such Protocols as shall have been ratified by the Government of the United Kingdom and subject to any reservations thereto ").

The noble Lord said: This is the same point as I made on the previous clause and I hope that the Committee will be able to accept it. I beg to move.

On Question, amendment agreed to.

Lord WADE moved Amendment No. 5: Page 1, line 21, leave out from (" otherwise ") to end of line 22.

The noble Lord said: In speaking on the first amendment, I indicated that although 1 was proposing all the amendments. I should not in any case be opposing amendments which I proposed. On this amendment there was a difference of view in the legal profession as to whether it was desirable to include the words at the end of Clause 3: or does not admit of any construction compatible with the provisions of this Act.". Some representations were made to me that the Bill would be clarified and that it would avoid some possible confusion if we excluded those words. I have tabled this amendment in order that the Committee may, if it so wishes, express its views on it.

As I said on Second Reading, I would not fight to the last ditch over the retention or otherwise of these words, but as the point was raised I thought that I should at least give the Committee an opportunity to express its views. There have been some members of the legal profession who have stated that they would be happier if the words "or" to "Act" were excluded. I beg to move.


The amendment which the noble Lord proposes this time is one which may represent quite a significant change in the policy of the clause. If noble Lords were to agree to this amendment, the wording would revert to what it was in the noble Lord's original Bill. On introducing this Bill, he had apparently changed course. This looks as though he is proposing to change course back again. The Select Committee took the view that if such a clause were effective it would, in practice, provide an important degree of entrenchment. The Committee saw such entrenchment in terms of a political restraint upon future Governments rather than actual statutory protection for a Bill of Rights, which the Committee considered to be impossible under our constitution.

As to entrenchment, it would not be wise for me to attempt to state a view on my own on this matter, but perhaps I may refer your Lordships to a statement made by the noble and learned Lord, Lord Scarman, who is a most distinguished supporter of the Bill, which is recorded in Questions 801, 802 and 803 of the Minutes taken before your Lordships' Select Committee in the Sessions 1976–77 and 1977–78. 1 do not wish to read the whole of the text, but perhaps I may Like one or two sentences from the answer that the noble and learned Lord gave, which make the point that I wish to draw to your Lordships' attention. At Question 803 he was asked what the situation might be if the Strasbourg Court took the view that an Act of Parliament which was thought to be consistent with the convention turned out, in its view, not to be so. He was asked how would the courts in this country deal with that situation. He answered: I think the courts' function would not be a difficult one. They would not be bound, at the moment at any rate, by the decision of the Strasbourg Court (not unless the Strasbourg Court was given status comparable with the Luxembourg Court) and they would have to make up their own mind about the subsequent statute ". This is the passage I wish to emphasise: If they came to the conclusion that it was a perfectly clear enactment, with no ambiguities as to the intention of Parliament, and inconsistent with the Bill of Rights, so be it: the Act, I think, would he the law and it would be a matter for parliamentary action to amend it to bring it in line with the Strasbourg finding. Certainly I would not suggest that the judges "— that is, the judges in our courts— in that situation should have power, or should seek to exercise power, to strike down the subsequent Act ". What it comes to is this: in the situation covered by the words that the amendment seeks to strike out, what would be the answer? At the moment, the Bill as it stands does supply an answer. If these words arc cut out the problem does not go away, but the Bill provides no answer to it. That is really the position, as I see it, in the light of the proposed amendment, and I thought it right to draw it to the attention of noble Lords.


I do not want to enter into the legal niceties of this, but I should have thought that it was clearly the intention of this Bill if the words or does not admit of any construction compatible with the provisions of this Act were not included. That is an uninstructed layman's view, and if there was a doubt about this among the lawyers I would be inclined to hope that we would leave those words out.


I am obviously torn between two very distinguished points of view. First, I should like to remove any misunderstandings about the powers of the courts to strike out anything that Parliament has done. I am not suggesting that the noble and learned Lord intended that anyone should misunderstand it, but that word does give an impression that the courts, after Parliament has passed an Act, will have power to strike out something that Parliament has passed, in the future. I do not think that that will happen; nor does it arise, in my view, from Clause 3. But the point before us here is that in considering whether there is a conflict between a new Act and the convention the courts will take into account what is said in the new Act, but of course a new Act of Parliament will prevail.

The reason for these words being put in by the Select Committee was to try to cover a case where there was perhaps some uncertainty as to whether a new Act did, or did not, intend to override the terms of the convention, which a new Act of Parliament could do. That is the reason for these words. I would have hoped that we might have had more advice on this. I do not know whether the noble and learned Lord the Lord Chancellor is willing to say something. I should have thought that we ought to leave the Bill as it stands, because there does not seem to be a sufficient strength of opinion, apart from what has been said from the Cross-Benches, for deleting this phrase. If there is a change of mind between now and the next stage we could raise this issue again. I do not feel at the moment that there is sufficient strength of opinion for me to press this amendment, but if I am advised otherwise of course I shall suggest otherwise.


As I have been invited to say something, may I say that, on the whole, although it is entirely a matter for the noble Lord, I think that he would be well advised to stick to his original draft of the Bill and not to press his amendment.


I am always impressed by anything that the noble and learned Lord the Lord Chancellor says. That does not mean that everything he says politically always carries me with him, but on legal matters, as we all know, he is extremely knowledgeable. In these circumstances, I beg leave to withdraw the amendment. That means that the clause will remain as originally drafted.

Amendment, by leave, withdrawn.

Clause 3, as amended, agreed to.

4.16 p.m.

Lord WADE moved Amendment No. 6:

After Clause 3, insert the following new clause:

Derogating Measures

—(1) Notwithstanding anything contained in section 1 of this Act and subject to subsections (2) and (3) of this section, in time of war or other public emergency threatening the life of the nation Her Majesty by Order in Council may take measures derogating from the obligations of the Government of the United Kingdom under the said Convention and Protocols (" derogating measures ").

(2) No derogation from Articles 2 (except in respect of deaths resulting from lawful acts of war), 3, 4 (paragraph 1) and 7 of the Convention shall be made under the provisions of this section.

(3) No derogating measures shall have any effect on the obligations of the Government of the United Kingdom under international law.

(4) For the purposes of this Act, a declaration by Her Majesty by Order in Council that there exists for the purposes of any derogating measures a time of war or other emergency threatening the life of the nation shall be conclusive.

The noble Lord said: I now come to a new clause. I shall try to explain the facts as briefly as I can. Under Article 15 of the convention there is a power of derogation, as those who have studied this subject will know. Anyone who has not got the terms of the convention available can obtain them quickly from the Printed Paper Office near to the Chamber, because they have copies of the Select Committee Report with the appendix giving the whole of the convention. Anyone who wishes to do so may refer to it, as I take it that most noble Lords here will already have it before them.

In Article 15 of the convention there is a power of derogation in time of war or public emergency threatening the life of the nation. Then it goes on to say that any contracting party—and in this case it would be the United Kingdom Government— may take measures derogating from the obligations under the convention. I give a summary of that clause. I took the view originally that if we incorporated Article 15 we incorporated that power of derogation, and by doing so we did all that was necessary because a Government could rely on the terms of Article 15. But since the Second Reading debate it has been put to me by distinguished lawyers—and in fairness it was already put by the noble Lord, Lord Allen of Abbeydale, in the Second Reading debate —that to incorporate the convention, and with it Article 15, was not quite enough. Although a Government under these very exceptional circumstances would have the powers under Article 15, and although they would have to observe international law, as is stated in that article, and although the Government would be subject to the provisions set out in that article, nevertheless some individual, when an emergency arose, might go to the court and argue that the circumstances were not such as to constitute an emergency; and possibly a considerable amount of time might be taken up in arguing whether or not there was an emergency, and that would be defeating the object of the Bill including the incorporation of Article 15.

It is very unusual for me, with my enthusiasm for looking after the interests of the freedom of the individual, to put forward a Bill which includes a reference to an Order-in-Council and the taking of certain measures which would be conclusive, but this is an exceptional case. There are others who take the same view, namely that in the exceptional case of a serious emergency it is not enough for the Government of the day to exercise their powers of derogation; they should be entitled to bring in, if they thought fit, an Order-in-Council, and that would have to be treated as conclusive so far as the need was concerned for the measures arising out of the emergency. Of course they would still be subject to the obligations under international law and to the clauses set out in Article 15 of the convention, which I have repeated in the clause here. It simply means that, if these circumstances arose, the Government could bring in an Order-in-Council and that would prevent an individual citizen from questioning the right or justification for the Government of the day declaring and introducing measures necessary because of the emergency. There is a balance of argument both ways and I think this is probably the right course to adopt.

I have a note from the noble and learned Lord, Lord Scarman, saying he is sorry not to be able to be here today. I know he intended to be here, and of course I must not quote his views because that would not be right, but I do not think my views would be altered. I suggest to the Committee that it would be reasonable in this particular case to make this exceptional provision.


I do not have the Green Paper in my mind and I know that the Paper in my hand and I know that the Printed Paper Office is in the immediate vicinity. My reason for not dashing out to read the Green Paper was my fear that this dreadful clause might pass I while was away. I suppose that every child of 14, in the opinion of Macauley at any rate, would know that Bernard Shaw said that the Britons had the Habeas Corpus Act but suspended it on any occasion when it was likely to be of use.

I do not know what the noble Lord, Lord Wade, is really anticipating. My fear and apprehension is, in any event, that if this law has the good fortune to get on the statute book it would be a repeal of about 75 other measures, as happened in the last two major wars, producing not merely a complete alteration of our laws in the face of a state of war but a series of laws which have hung on by the skin of their teeth year after year by Government renewals for 12 months, including some of the worst parts of our aliens law, on which I used to speak once a year but apparently without affecting the situation.

I confess that I have not given the clause all the attention it deserves because it was shoved down only yesterday and I got it when I arrived today among other things I had to receive, although I called last night for any amendments to the Bill. It contains a charming reference to a vague state of emergency or state of war either of which might imperil the kingdom and which of course clearly stems from the sacking of a shop steward. One need only read the headlines in the papers to know—Mr. Robinson is a bit of a nuisance perhaps to the company—that the very act of sacking Mr. Robinson could have some consequences, including imperilling the nation or imperilling its future or imperilling its industrial prosperity, and, strangely enough, apparently some sort of plot on the part of the trade union movement. I say quite frankly that I suspect a certain amount of anticipation of events from those who attendeed the Tory Party Conference and were heard on this general issue.

A state of emergency? Is it a strike or anything short of a nuclear war? A nuclear war would almost certainly not leave any courts standing for long or able to function. And there is a separate, perfectly serious point. I was for a brief period a security officer in the last war and we received details of provision for the establishment for some sort of law in occupied areas in the event of an invasion, with the provisional appointment of regional officers who would have powers something like the prospective governor of Rhodesia in odd bits of Britain which would not be accessible to any other method of communication.

To me a clause like this seems capable of being used by a very reactionary Government. I should not like for a moment during this pleasant discussion to express my views as to what is a very reactionary Government or whether we might get one or even whether we have got one. I have some apprehensions for the future about questions of liberty, about questions of freedom of the individual and so on.

The Court of Strasbourg is a court of 21 or 23 nations. I have not looked at its composition for a little time. But I was a member of the committee at Strasbourg which took part in the formulation of these ideas. I remember the passion of my old friend Mr. Golsong, who I know has now moved to an even more distinguished appointment at Strasbourg, for all this, and his desire that it should be built.

I believe that the clause contains elements which are so dreadful in their implications; and after all, even if we do not try to visualise the situation under a nuclear war, with any weapons one has immediately the situation of aliens. One may have to raise the situation of aliens who have obtained nationalisation. In the last war a great deal of discussion was about 18B.

It will be said that other courts may still be created. If so, many of those matters will go in the first instance to the existing courts. But I still say that if you are entering the lists and throwing down your challenge to the Judiciary with this measure in the interests of human rights, it will be sad to come in burdened with anything so antagonistic to human rights as this clause appears to me to be.


As the noble Lord, Lord Wade, said, the question of derogation is dealt with in the convention itself, and therefore in our submission he was very wise to direct attention to it in the Bill. I should like to take the opportunity of congratulating him on the amount of work that he has had to do in relation to the amendments he has proposed, and perhaps this amendment has caused hint the most difficulty. I can well understand how to some extent it went against the grain to propose this amendment, but so far as it goes, we consider that it tackles an important problem, and it is very right that it should do so.


I do not think that the noble Lord, Lord Wade, need worry about his libertarian conscience for having put down this amendment. It seems to me to be a reasonable one for the purposes of the Bill.

On Question, amendment agreed to.

4.34 p.m.

Lord WADE moved Amendment No. 7:

After Clause 3, insert the following new clause:


For the purposes of this Act— Convention " means those Articles of the Convention set out in Part 1 of the Schedule to this Act; Protocols " means those Protocols to the Convention set out in Part 2 of the Schedule to this Act;, reservations " means those reservations set out in Part 3 of the Schedule to this Act.

The noble Lord said: I do not know whether it would be helpful to the Committee to discuss Amendments Nos. 7 and 8 together. Amendment No. 7 provides for definitions and Amendment No. 8 is the schedule setting out the definitions. Perhaps I could discuss the two amendments together, but of course they will have to be voted on separately. On the whole question of definitions the point we had to decide was whether we should incorporate the whole of the European Convention, part of which is concerned with procedure; whether there should be petitions, and what a petitioner should do; how he should go to the Commission and eventually to the Human Rights Court; and how the Human Rights Court should be set up.

Much time was given to this question in discussions in the Select Committee and there was a good deal to be said on both sides. The noble Lord, Lord Boston of Faversham, will correct me if I am in any way wrong in my memory, but one point of view was that it was simpler to incorporate the whole of the convention, including the procedural matters and all the rest of it. One argument in favour of that was that it avoided the necessity of specifying what were rights and liberties and what was procedure. That was one argument. Another argument was that incorporating the freedoms and liberties contained in the European Convention was primarily a matter of concern to any citizens who wished to put forward a complaint and it was not really appropriate to this Bill to incorporate into our law the matters relating to procedure for going to Strasbourg because that was already covered by treaty.

The whole point of the argument about these rights and liberties which citizens might feel were denied them was that a citizen of this country who felt aggrieved should have the right to go to court in this country to express his grievance without having to wait and go through the long process of getting to Strasbourg, and therefore what really mattered were the rights and liberties. On balance, after much discussion both ways, I finally came to the conclusion that the best course would be to attempt to define the rights and liberties about which this Bill was concerned. It is for that reason that in Amendment No. 8 I introduced the definition clause, and in the schedule, which we cannot vote on at the moment, but to which I should like to refer, I have set out a part of the convention that is important and relevant and—turning over the page of the Marshalled List of Amendments—the protocols and the reservations.

I think that I have covered the important points, but rather for the information of the general public than for Members of this House who know it all, I should like to read Article 60, simply because some members of the general public are under the impression that if we pass the Bill, it will override rights and liberties that we already enjoy. That is why I have specifically included Article 60, which reads: Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party "— in this case it is the United Kingdom Government— or under any other agreement to which it is a Party ". I am therefore suggesting to the Committee that we should define "convention" "protocols" and "reservations", and that the schedule should provide that, for the purposes of this Bill, the convention will be Articles 1 to 18 inclusive and Article 60 "; that the protocols will be Articles 1 to 3 inclusive of the (first) protocol "; and the reservations, The reservation made to the (first) protocol (Article 2) by the United Kingdom under Article 64 of the convention ". I think that covers all the relevant articles, protocols and reservations that are not concerned with procedural matters. I hope I have accurately set out the rights and liberties that matter which concern this Bill.

I think the only additional remark I should make, in case this matter is raised, is this. I acknowledge that this Bill does not attempt to deal with future protocols and future reservations. In the light of the clause of this Bill which makes it clear that we are not attempting to override future Acts of Parliament, it seemed to me right that we should not attempt to include future protocols and future reservations, of which we do not yet know. Therefore, dealing with the present, I hope the Committee will agree that there should be definitions, and that these are the appropriate ones, I beg to move.

On Question, amendment agreed to.

Clause 4 agreed to.

After Clause 4:

Lord WADE moved Amendment No. 8:

After Clause 4, insert the following schedule:

>Section 5




CONVENTION Articles 1 to 18 inclusive and Article 60.


PROTOCOLS Articles 1 to 3 inclusive of the (First) Protocol.


RESERVATIONS The Reservation made to the (First) Protocol (Article 2) by the United Kingdom under Article 64 of the Convention.

On Question, Amendment agreed to.

House resumed: Bill reported with the amendments.