HL Deb 29 November 1979 vol 403 cc502-9

3.55 p.m.

Report received.

Clause 4 [Derogating measures]:

Lord MORRIS moved Amendment No. 1: Page 2, line 12, at end insert (" said "). The noble Lord said: My Lords, some may wonder, as indeed I have, how it is that I have the temerity to table amendments at so late a stage, particularly bearing in mind that I have made no contribution to the progress of the Bill to date. However, I believe it would be sad if this of all Bills, fathered by the noble Lord, Lord Wade, were to be delivered in another place a little long in the leg and not as neat in form as might be. I regret that I had neither the wit nor understanding to appreciate earlier the points underlying the amendments which stand in my name. Indeed, it is the result of my failure to read this important Bill with proper care that your Lordships have now to be troubled.

This is purely a drafting amendment and the point underlying it is the question of consistency in drafting. Noble Lords will of course appreciate that where the Convention for the Protection of Human Rights and Fundamental Freedoms is subsequently referred to—twice in Clause 2, twice in Clause 3 and once in Clause 4(1)—the term "the said Convention "is used. Unaccountably, in Clause 4(2) the terminology used is" the Convention "and, as I say, it is to achieve consistency in drafting that I have tabled the amendment.


My Lords, I am grateful to the noble Lord, Lord Morris. I agree with the amendment and I suggest that it be accepted.

On Question, amendment agreed to.

Clause 5 [Definitions]:

3.58 p.m.

Lord MORRIS moved Amendments Nos. 2 to 5:

Page 2, line 22, leave out from (" means ") to end of line 23 and insert (" Articles 1 to 18 inclusive and Article 60 of the said Convention; ")

Page 2, line 24, leave out from (" means ") to end of line 25 and insert (" Articles 1 to 3 inclusive of the (First) Protocol to the said Convention; ")

Page 2, line 26, leave out from (" means ") to end of line 27 and insert (" the Reservation made to the (First) Protocol (Article 2) by the United Kingdom under Article 64 of the said Convention.")

Leave out the Schedule.

The noble Lord said: My Lords, I believe it would be of convenience to your Lordships if I were to speak to and move Amendments Nos. 2, 3, 4 and 5 en bloc. The House will of course appreciate that these four amendments affect Clause 5, the definitions clause of the Bill, and the schedule to the Bill, which of course is consequential on the definitions clause. I believe that Clause 5 as drafted does not serve the Bill as a true definitions clause but serves solely as an arrow pointing elsewhere in the Bill to the definitions in the Bill necessary to interpret the Bill.

The effect of these amendments is to embrace the definitions of "Convention ", "Protocols" and "reservations" in the arms of a true definitions clause and to dismiss the schedule to the Bill. The amendments would further result in a Bill which is shorter by 48 words and 10 lines, with no substantive effect on the Bill. I ask for the guidance of noble Lords as to whether I should press or withdraw these amendments, and I especially need the guidance of noble Lords learned in the law and in particular seek the advice of the noble Lord, Lord Wade, the Thomas Jefferson of our times. I beg to move.

4 p.m.


My Lords, once again I should like to thank the noble Lord, Lord Morris, for the interest that he has shown in the Bill. His comments are most helpful, and I am genuinely thankful for his interest. I have studied his amendments and I entirely agree that they should be taken en bloc. I have listened very carefully to what he said. It seems to me that the objective is the same, but there is one great merit in the amendments proposed by the noble Lord, Lord Morris; namely, that they have a brevity which in my view is commendable whenever possible. In this case it is for your Lordships to comment on the amendments as you think fit, but so far as I am concerned I would be inclined to recommend to the House that this group of amendments be accepted.


My Lords, the noble Lord, Lord Morris, spoke to me about these amendments and I think that he ought to be congratulated upon his courage in plunging into the definitions field in the formalities of the Bill. What he proposes seems to me to make good sense and to add brevity and clarity to the Bill—both most valuable virtues.


My Lords, may I add to that tribute and in so doing possibly try to seek, with the remainder of the House some clarification on one issue which I ventured to raise at the Committee stage and which may conceivably help the House with regard to the acceptance of the amendments under discussion. At the Committee stage I ventured to raise a general point regarding the effect of something which was happening else-where in regard to the convention to which this country is a signatory, which convention of course it is the intention of this Bill to incorporate into our law. I said then, as would be known to others of your Lordships, that a suggestion had been made that to cover the short-term situation the EEC should as an entity sign the convention to be incorporated in an Act if this Bill is passed.

I then asked the noble and learned Lord Chancellor, in the course of a general discussion, if he were able at that stage to aid the House in advising as to what the effect of that would be if indeed the EEC did sign the convention as an entity, because it seemed to me that then it might indeed become a part of our law without the necessity for this Bill. The noble and learned Lord Chancellor, with his usual courtesy and clarity, said that so far as he could see this was rather a hypothetical situation. He said that he would like to have notice of the question before he could give a comprehensive reply. I gave him that notice, and he was kind enough to indicate that he might deal with the matter today.


My Lords, on these amendments I can reply to the noble Lord, Lord Mishcon, only with the indulgence of the House; I should perhaps be out of order unless I was given that indulgence. I am not sure how definite the reply I can give will be, but I can give him some information which I hope will satisfy him, at any rate as a first instalment.

There is of course no provision in the treaties establishing the Communities which affords formal protection for the fundamental rights of Community citizens. That is the status quo. On 11th June this year the Commission published a memorandum suggesting that this should be remedied, first, in the medium term by accession of the Communities to the European Convention on Human Rights; and secondly, in the long term, by drawing up a catalogue of rights to be enshrined in the Community law. I understand that the Commission itself believes that it is not possible to agree on the second alternative in the short term. It cannot draw up its own catalogue, and therefore I think we can drop it there for the time being. The Commission has therefore concentrated on the first of the two alternatives—accession to the European Convention. However, the Commission regards that as a first step in the direction of the long-term objective of a catalogue of rights.

The present situation is as follows. The memorandum has been sent to the Member States and institutions of the Communities and to the Council of Europe. The suggestion of the Commission is that Article 235 of the EEC Treaty could provide a basis for Community accession to the European Convention, although it has admitted that Article 236 might be more appropriate. I am told that we have reservations about the use of Article 236 for this purpose. The Commission's aim is to encourage discussion of the issues among interested parties. The Presidency have said that they intend to bring the subject to the Council of Ministers this year. This will provide an opportunity for a preliminary and general exchange of views.

As is quite clear from the very well-informed letter that the noble Lord, Lord Mishcon, sent me, the noble Lord and probably others of your Lordships are well aware that this is a somewhat complex matter. It is under consideration by the European Committee of your Lordships' House. My right honourable friends and I do not wish to arrive at decisions in this matter until we have had the benefit of the comments of your Lordships' Committee. However, as the noble Lord suggests, this could be a fruitful topic for consideration in the context of any all-party talks which the Home Secretary is proposing to suggest, or which we may hold here.

I do not think that I can really answer the specific question put to me. I see upon me the basilisk eye of the noble and learned Lord, Lord Elwyn-Jones, but I do not think that one can really answer these questions until one knows in what form the Community itself accedes to the convention, and indeed whether it would be intra vires the treaty itself to do so. But when one has considered those ques- tions and knows the form in which accession is proposed, one could, I think, give a more positive answer. At the moment I think that I was probably rather prudent to give a cautious answer in the first place. I think that that is the most I can do by way of helping the noble Lord, Lord Mishcon, at this stage, and within the framework of these amendments; otherwise, I might trespass upon the indulgence of the House.


My Lords, the noble and learned Lord has been wise to be both prudent and tentative in this matter. When I attended the Council of Europe recently during the celebrations of the 20 years of the functioning of the court and the quarter of a century of the functioning of the Commission, my impression was that this matter was very tentative indeed. I had no knowledge that my noble friend was going to raise the matter. The House has indeed been very indulgent both to him and to the noble and learned Lord, but I make no complaint. This matter raises very important and very serious questions as to whether there should by virtue of our Membership of the EEC be extended to our law the application of the convention—a matter which is not directly pertinent to the terms of the Treaty itself. Attractive as these irregular discussions in your Lordships' House are, this is not really a suitable opportunity for a final decision, and indeed I certainly should not care to give one myself.

The LORD ADVOCATE (Lord Mackay of Clashfern)

My Lords, if we may return to the amendments moved by the noble Lord, Lord Morris, perhaps I may remind your Lordships that the Select Committee of your Lordships' House which considered the previous Bill introduced by the noble Lord, Lord Wade, considered with a good deal of care the question of the extent to which the convention and protocols should be set forth in the Bill, and reached the conclusion, as your Lordships will remember, that the only safe course would be for the Bill to include the whole of the convention and its protocols. Of course, that would produce a somewhat longer Bill than we have at present, whereas the amendments which have been proposed go in the opposite direction of shortening the Bill and cutting out all the excerpts from the convention and protocols which the noble Lord, Lord Wade, I think, introduced at Committee stage. So the precise form in which such a Bill should be enacted from this point of view is obviously a rather difficult and important question, and brevity alone may not be the only consideration which should be borne in mind. I should therefore like to reserve the position upon this matter in the hope that, if we do have all-party talks on the subject, this would be a suitable matter for discussion then.


My Lords, this being Report stage, with your Lordships' permission perhaps I may be allowed to speak again. So far as the wording of these amendments is concerned, I have studied it and compared it with the wording of the Bill as it stands at the moment, after it left the Committee, and I cannot myself see any difference in effect between the wording of the amended Bill and the wording of the amendments which the noble Lord, Lord Morris, has put before us. Therefore, I do not think there is any difference in principle at all. I would agree that the Bill as amended in Committee and as further amended, if it is, at this Report stage deals with the articles by reference to their numbers and not by setting out verbatim the content of the articles. That was a matter which I and others had to consider very carefully. But I think it only fair to the noble Lord, Lord Morris, to say that in my humble opinion there is no difference between his amendments and the Bill as we have it, except that he has devised a shorter way of putting the same thing. I hope I am right, but perhaps the noble and learned Lord on the Front Bench will consider that.

So far as the EEC is concerned, I had considered this. I would not pretend to be able to speak with the knowledge of the noble and learned Lord the Lord Chancellor, but my own conclusion at the moment is that there are considerable doubts about the practicability of bringing this about through the EEC; and, in any case, even if it is possible, I think it will be an extremely slow process.


My Lords, I think it only remains for me to thank the noble Lord, Lord Wade, for his very kind support and, in particular, for rebutting my own Front Bench so effectively. I should also like to thank the noble and learned Lord, Lord Elwyn-Jones, for his far too generous remarks. Notwithstanding that, I must say I enjoyed every single word.

On Question, amendments agreed to.