HL Deb 30 April 1986 vol 474 cc334-42

8.20 p.m.

Lord Broxbourne

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read a third time.—(Lord Broxbourne.)

On Question, Bill read a third time with the amendments.

Lord Allen of Abbeydale

My Lords, the Bill has been slightly improved during its passage, but I should not like it to go to another place without putting on record that even as amended it is not a Bill that leaves here with universal approbation. I have no intention of again going over the arguments about its creating uncertainty and tipping the balance between Parliament and the judges too far in the direction of the judiciary, but I still feel that we should be better off without such legislation.

Further, I am not happy with the form of the Bill and think, for example, that it would be preferable, if we are to have an Act at all, that it should incorporate the whole of the European Convention on Human Rights instead of only part, as the Select Committee concluded some time ago. Other noble Lords have put forward other possibilities. Having said that, may I say that there are important issues here? On balance, although I do not go along with the noble Lord, Lord Broxbourne, and my noble and learned friend Lord Scarman, the arguments that they have put forward are genuine and are deserving of careful consideration and genuine debate. It is accordingly somewhat disappointing, to my mind, that when we have been tackling such issues there should have been such small attendances at the various stages of the Bill and in general such a lack of interest.

I cannot help recalling that in the debate on the Address on 12th November last year (col. 195) I ventured to express some dissatisfaction over the fact that the Government had decided to renew for five years their acceptance of the right of individual petition to the European Commission of Human Rights and the jurisdiction of the European Court without inviting any debate, without even an oral Question and without any preliminary announcement of their intentions.

I am not aware that anyone took the slightest notice of the point that I was making. That is perhaps not an altogether unusual experience, but, when one comes to think of the fresh legislation, the new statutory instruments and the changes of policy to which the decisions of the court have already led, nearly all of them as a result of indivdual petitions, it seems to me less than satisfactory that we should pay such small regard to our relations with the court and the convention.

It was interesting yesterday, when we were discussing what might happen about the Moonies, or perhaps I should say the Unification Church, that no one thought it appropriate to point out the possibility that Article 9 of the convention about freedom of religion might prove to be relevant.

I still come across widespread ignorance and confusion about the EC Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg, a confusion from which I fear even the BBC is not exempt. I cannot help but regard the comparative indifference to the Bill as symptomatic of a general lack of interest in procedures which are bound increasingly to affect our actions and policies in this country. During its passage, the Bill has given rise to some interesting discussions among a few. I profoundly wish that they could have reached a wider audience.

Lord Scarman

My Lords, on a point of order. I am not sure whether my noble friend Lord Allen of Abbeydale was in order in addressing the House after the vote had been taken. I hope that I may follow him now in that irregularity so long as we recognise that it is irregular. However, the Bill has not yet passed and therefore I think that both my noble friend and myself, throwing ourselves on the mercy and the compassion of the House, can be heard to say a few words about the Bill. I propose to follow my noble friend's excellent precedent.

I should like at this late stage to congratulate the noble Lord, Lord Broxbourne, on the skill and courtesy with which he has directed our labours during the passage of the Bill, which, notwithstanding the disappointing attendances that it has secured in the House, is I am sure a measure of real importance which possesses a highly civilised quality.

It will not I think surprise the House if, with the noble Lord's consent, I inform the House that he and I have discussed the Bill and discussed at length the objections raised on Second Reading, in Committee and on Report. I say no more about those objections other than that they give rise to a real debate on questions of genuine importance and deserved a greater throng of concerned Members of the House than they succeeded in obtaining.

Having considered with the noble Lord, Lord Broxbourne, the various points that were made, he and I remain convinced of a number of points, only three of which I think it proper at this late stage to mention. I mention them because they are all of importance. First, the Bill represents no threat to the sovereignty of Parliament. It represents no attempt by a side or a direct wind to secure any change in our constitution. Parliament remains, in matters of legislation, sovereign.

Secondly—I come now to its positive advantages—the Bill, if enacted, will assist our judges to do justice in a field which under the common law is traditionally their field—the protection of the rights and liberties of the subject against the power, whether that power be exercised directly or indirectly, of the state. That has been the function of our judges since the time of Henry II. There is nothing in the Bill which adds one inch to the field of jurisdiction of our judges but within that vital field of protecting the individual the Bill lends them strength.

I could develop that argument with a good deal of particularity. I mention only one specific indication of strength. At the moment, the common law is lacking in the protection that it offers to the citizen for the safeguarding of his privacy. We really have no principled law relating to the right to privacy. We secure the protection of privacy by a number of strange devices derived from the property law, such as the law of trespass, but if this Bill becomes a law it will introduce from the European convention a direct right to the protection of one's private life. That is an immense strengthening in a field where all of us who know the common law have been aware for years that it is deficient.

The most important point—certainly, if your Lordships will allow me to say so, it is the most important point to my mind—is: what is in this Bill for the ordinary citizen? Jurists can talk to the point—I suppose rather in the way I have been talking—almost (I hope not quite) ad nauseam. But what is in it for the ordinary citizen? Quite simply, if this Bill becomes law the ordinary citizen gains this advantage. If he suffers a violation of the rights and liberties guaranteed to him by his Government in ratifying the European convention, he will now have a remedy in his national or domestic courts. He will not have to go to Strasbourg, although the right in certain circumstances will still be there—a right which I suspect will seldom be exercised if this Bill is enacted—and our judgments can administer the European convention in so far as the European convention applies, as it does apply, within our jurisdiction. That is a great advantage to the citizen.

Finally, my Lords, do not talk to me about letting in cranks. There is a six-month time limit and our judges, particularly now in the field of judicial review, have a long experience of dealing with cranks. We are paid to do that.

8.30 p.m.

Lord Houghton of Sowerby

My Lords, I wish to make a few comments about this Bill and to raise a particular point, which I hope your Lordships will not think too small to intrude into the debate on the Third Reading. Unfortunately, I was prevented by other engagements from taking part in the earlier stages of the Bill.

Lord Paget of Northampton

My Lords, surely we cannot have a debate on Third Reading after a Bill has been passed. We cannot go on.

Viscount Davidson

My Lords, may I interrupt? We are in order in having a debate on Third Reading.

Lord Houghton of Sowerby

My Lords, I thought it was possible to say on Third Reading whether we liked the Bill—

Lord Paget of Northampton

But, my Lords, it has had a Third Reading. The Third Reading is over.

Lord Houghton of Sowerby

My Lords, it is either on the Motion, That the Bill be now read a third time, or it is on the Motion, That the Bill do now pass.

Lord Paget of Northampton

It has been passed, my Lords.

Lord Houghton of Sowerby

My Lords, I understood from observing conventions in your Lordships' House that there was hardly any time when you could not speak on a Bill so long as it was still before the House. Anyway, I presume to continue my remarks until somebody puts me down.

Lord Scarman

My Lords, may I reassure the noble Lord on a point of order? He can do anything he likes, so long as he carries the consent of those of us who are here, and at the moment I think he has it.

Lord Houghton of Sowerby

My Lords, I am much obliged to the noble and learned Lord for that reassurance. I can now regain my confidence. In the past I have supported all Bills in similar form to this and this is not the first time that this principle has been before the House in a Bill. Therefore, I am fully behind the motive and purpose of this Bill.

I am glad that the noble Lord, Lord Broxbourne, has taken up this matter. If I may say so with great respect, I think it is always a good thing, when a noble Lord comes to this House, to have a purpose in his mind to achieve something here, however difficult and however small. I may humbly suggest that I set an example in that respect. The point I wish to raise is probably one which would have been more appropriate to the Committee stage, but what I thought was that if we are going to embody a convention of an international body into our statute law, the transposition will have to be done by drafting a statute law to comply with the convention, rather than lifting the whole of the convention and putting it in a schedule to the Bill.

This is my point. The schedule to the Bill is the convention, so when I raised with the noble Lord the point that I wished to make a small amendment to the schedule, he said, "Ah, you cannot do that because this is the convention and Clause 1 of the Bill enacts the convention. Other clauses make it clear that when the Bill is passed you still cannot tamper with the convention." I look at Clause 4(2), which reads: No provision of an Act passed after the passing of this Act shall be construed as authorising or requiring the doing of an act that infringes any of the fundamental rights and freedoms, or as conferring power to make any subordinate instrument authorising or requiring the doing of any such act, unless", and so on.

That would therefore stop the purpose that I have in mind now. So I turn straightaway to Article 9, and here we deal with religious freedom. Paragraph (1) of Article 9 makes it clear that everyone has the right to freedom of thought, conscience and religion. Paragraph (2) establishes freedom to manifest one's religion or beliefs. Paragraph (1) has made it clear that religion may be manifested in belief, worship, teaching, practice and observance. But I am very mystified as to what paragraph (2) means. I read: Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and"— "and" is the word— are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others". That word "and" seems to me to imply that, although freedom to manifest one's religion shall be subject only to certain limitations as are prescribed by law, it is only if that law is necessary in a democratic society in the interests of public safety and the other conditions that paragraph (2) sets out. I come to the conclusion, therefore, that Article 9 would preclude the amendment of our legislation regarding the slaughter of animals to remove the immunity from our general law of the religious practices of Jews and Moslems in the slaughter of animals. Our legislation at present provides for that immunity. But the Farm Animal Welfare Council has been given the job of considering whether it should continue. The council has made a report that is now in the hands of the Government. If, therefore, it was proposed or desired to change that position, it looks to me as though it would fall into the mischief of Clause 4(2). I wanted therefore to add to Article 9, at the end. or for the prevention of cruelty to animals or birds". I wanted, in other words, to bring into a Bill dealing with human rights the rights of other species, especially as those rights are dependent upon the exercise of the human freedom of religion, its beliefs, its practices and the rest. So the two things are really bound up with human rights; that is the point. I enter, therefore, a friendly caveat. While wishing the Bill success in what lies before it, I hope that before we embody the convention in our statute law we do something to make the language of the convention more compatible with the general structure of our statute law.

8.41 p.m.

Viscount Davidson

My Lords, I, too, should like to pay tribute to my noble friend Lord Broxbourne for the skill, courtesy and tenacity with which he has steered this Bill through its stages in your Lordships' House. I should also like to make clear that the silence or relative silence from this Dispatch Box does not mean that the Government are indifferent to the question of human rights. On the contrary, as my noble friend Lord Glenarthur made very clear at Second Reading, we regard the safeguarding of human rights as of fundamental importance. We differ, however, from the supporters of this Bill in that we are not convinced that to graft the general principles of the European convention on to our statute law—a body of law that is very specific in nature—will provide a satisfactory means of promoting human rights within our constitutional framework. Opinions are deeply divided on this issue, and until and unless a consensus can be achieved we would be hesitant to support such an important constitutional change.

I think it is clear that there are substantial problems with this Bill, in particular its constitutional implications. But our discussion of it has, I think, contributed to a better understanding of the arguments surrounding it, and for that we are indebted to my noble friend Lord Broxbourne for the initiative that he has shown.

8.43 p.m.

Lord Prys-Davies

My Lords, before the Bill leaves the House, if I may use that phrase, I, too, should like to thank the noble Lord, Lord Broxbourne, for introducing it to your Lordships' House. I regret deeply that I was one of those Members who missed the debates. I assure the House, however, that I have read all the speeches on this Bill delivered since 10th December. I would have thought, therefore, that the noble Lord, Lord Broxbourne, should not assess the interest of Members of your Lordships' House in this debate merely by the attendance.

Reading the debates, it is accepted on all sides that we need constantly to strengthen the protection of fundamental human rights and freedom, and to protect the individual citizen in the face of the official power of the state. That is, I believe, accepted. There is no evidence of complacency. It is accepted that there is a need for constant vigilance. But the debates, notwithstanding the great eloquence of the noble Lord, Lord Broxbourne, and the noble and learned Lord, Lord Scarman, have shown that opinion is still sharply divided as to how we can best achieve the desired end. Should we incorporate into the law, in full or in part, the articles of the European Convention on Human Rights, as advocated by the noble Lord, Lord Broxbourne, and the noble and learned Lord, Lord Scarman? Should we continue to build upon our body of existing case law, as advocated by my noble and learned friend Lord Elwyn-Jones, by the noble and learned Lord, Lord Denning, by the noble Lord, Lord Lloyd, and, indeed, by the noble Lord, Lord Allen of Abbeydale? Or should one at this stage steer a middle course and establish a human rights commission that would examine the citizen's complaint against the background of the convention and then make a recommendation, as has been advocated? And no doubt there are other options.

Again, notwithstanding the persuasive argument of the noble Lord, Lord Broxbourne, and the noble and learned Lord, Lord Scarman, we have heard from a number of noble and learned Lords, who have spoken with immense authority and who are highly respected, that this Bill has profound constitutional implications. I am a mere solicitor in private practice. I am not quite certain how I am to steer a course between the arguments advanced by noble and learned Lords. What is known, however, is that these implications are a cause of concern for the Government. I would say only this. One would have thought that before we set in train a constitutional change of this nature, or introduced, to mention the words of the noble and learned Lord, Lord Scarman, a measure of real importance, there should be profound discussions of all aspects of the matter with the public and with interested parties.

We regard the Bill as a contribution to that debate. Although the noble Lord, Lord Broxbourne, expressed disappointment with the Government's response at the end of the Second Reading debate, we would assure him that he has made a valuable contribution by introducing the Bill to your Lordships' House.

8.48 p.m.

Lord Broxbourne

My Lords, we are now at the closing stages of our discussion of a Bill that received an unopposed Second Reading in your Lordships' House on 10th December. I hope that I am not alone in finding our long journey an interesting, absorbing and, indeed, exhilarating experience. Our discussions have naturally enough contained elements of controversy. I shall start today, however, on an eminently uncontroversial note with an expression of my appreciation of the contributions that we have heard both this evening and at all stages of the Bill—clear, cogent and informed as they have been from all your Lordships who have been good enough to instruct and edify the House. I might perhaps say here a warm personal thank you for the kind and over-generous remarks made about me and my part in relation to the Bill in the debate this evening.

The approach of your Lordships has not been uniform. We have had, I am glad to say, enthusiastic and discriminating support from all quarters of the House for the letter as well as for the spirit of the Bill. For that I am extremely grateful. We have had also criticism from those who, in the classic phrase, find no difficulty in combining their enthusiasm within the bounds of decorum. I take comfort from the fact that the grounds of criticism that have been advanced at the various stages of the Bill are by no means uniform. Indeed, many of them have tended to cancel out.

For example, there were the efforts of the noble and learned Lord, Lord Silkin, and of my noble friend Lord Campbell of Alloway to cabin, crib and confine the Bill within much narrower parameters, which were balanced by the efforts of the noble and learned Lord, Lord Denning—whose great authority and wisdom we all respect so much—who sought to terminate the jurisdiction of the Commission and European Court of Human Rights. When one finds such learned and eminent gentlemen taking such extreme, opposed and polarised views, there is comfort for the promoter of the Bill to find himself standing on the middle ground.

Today we have heard interesting, informative and eloquent speeches. The noble Lord, Lord Allen of Abbeydale, made a great contribution to the proceedings of this Bill at its various stages, and he served on the Select Committee. I am grateful to him for his interest. We have not seen eye to eye on every iota of the Bill but I respectfully echo that which the noble Lord said tonight concerning the general approach to those matters.

Then there is the noble and learned Lord, Lord Scarman, who speaks with an authority on matters of the law in general, and on these matters in particular, which one cannot hope to emulate but only to envy. It has been a great privilege to have his co-operation, wise guidance and sage counsel in the putting together of the Bill and in seeing it through your Lordships' House. I am most grateful to the noble and learned Lord, as your Lordships will be, as well.

The noble Lord, Lord Houghton of Sowerby, is an old friend from House of Commons days. He raised a point which, as he rightly said, would perhaps have been better raised at an earlier stage of the Bill, but we all understand the reasons for not so doing. The noble Lord was good enough to acquaint me of his intention in regard to the point that he wished to make and I felt obliged to tell him that, in my view, the amendment he proposed was outwith the terms and context of the Bill; that we could not amend in the schedule the convention to which we are a party by international obligation.

The noble Lord was good enough to accept that argument. He has made his point today and we have all listened with sympathetic interest. He need not be unduly disturbed. Animal welfare is something that lies very close to every judicial breast in this country. I am sure that in the interpretation of these laws the noble Lord will find a sympathetic approach that will be of great comfort to him. I know, and other noble Lords know, his special concern in matters of animal welfare. We all respect it, as we do his many other qualities. If I may say so to your Lordships, it is gratifying to find so tender a heart in one who was such an eminent figure in the Inland Revenue.

I shall come in a moment to the contribution of my noble friend on the Front Bench and to that of the noble Lord, Lord Prys-Davies, on the Opposition Front Bench. First, I must say a word in regard to one prominent critic who is not able to be with us tonight. I refer to my noble friend Lord Campbell of Alloway. He has communicated his view to me and has asked me to communicate it in turn to your Lordships' House.

In substance, my noble friend considers that there is much common ground on the question of providing a remedy in our courts, but disagreement, or a measure of disagreement, on the means of implementation. As your Lordships may recall, my noble friend was an advocate of confining the remedy to the processes of judicial review—a proposition that failed to find favour with the House. He expresses to me the hope that if the Bill is not acceptable to Her Majesty's Government, they will introduce their own Bill to provide a remedy more on his lines or perhaps on the lines of a Parliamentary commissioner or the like. I do not propose to detain your Lordships with speculation or exhortation based upon what I think is a melancholy and, I hope, improbable hypothesis. What I think my noble friend does not quite appreciate is that it is not a matter just for the Government it is a matter for Parliament.

Not that I despair of Her Majesty's Government. After all, I have seen most members of it enter the House of Commons, and I have seen them learning the ways of the House of Commons and getting to respect its authority. Therefore I do not despair, despite the cautious words of my noble friend on the Front Bench, of the outcome with the Government. If I may say so to the noble Lord, Lord Prys-Davies—and I am much obliged to him for his references to me personally and to what the Bill is seeking to do—I do not despair of the Opposition either.

It is true that the Government have not yet given any mark of approval to the Bill. However, I feel sure that their sagacity will lead them to a statesmanlike conclusion when they have given it further and fuller consideration. I therefore commend the Bill on this, its Third Reading. I hope that it may secure your Lordships' seal of approval and proceed to the other House and thence onto the statute book for the benefit of our citizens and the improvement of our law.

The Deputy Speaker (Lord Airedale)

My Lords, I believe that I collected the voices too quickly on the Motion for Third Reading. With permission, I will do so again, and then perhaps your Lordships will wish to take formally the Motion, That the Bill do now pass.

On Question, Bill read a third time, with the amendments.

Lord Broxbourne

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Broxbourne.)

On Question, Bill passed, and sent to the Commons.

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