§ 6.2 p.m.
§ Lord Broxbourne
My Lords, I beg to move that the House do resolve itself into Committee on this Bill.
§ Moved, That the House do resolve itself into Committee.—(Lord Broxbourne.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD AIREDALE in the Chair.]
§ Clause 1 [Short title and interpretation]:
§ Lord Silkin of Dulwich moved Amendment No. 1:
Page 1, line 20, at end insert—
(" "infringement" means an act which by virtue of proceedings under the Convention has been held by the Court of Human Rights established thereunder to be an infringement of any of the fundamental rights and freedoms and "infringe" shall be construed accordingly;").
§ The noble and learned Lord said: I wish to begin by making two points absolutely clear. First, although I speak from this Dispatch Box, this amendment is put down in a personal and not in a representative capacity. Secondly, although the noble Lord, Lord Broxbourne, and others, might take the view, on reading the amendment, that it is a purely wrecking amendment—indeed, it would be if effect were given to it—such is not my intention. My intention is to enable some discussion to take place about other possible ways of giving effect to the desire of the noble Lord, which I strongly share, that there should be some way of enabling the citizen to raise within this country breaches of the convention.
§ The noble Lord's method is by giving the citizen the right of action in the courts or in tribunals, as I understand his third schedule. However, there are other ways, and it may be that those other ways will be thought to be both better and more acceptable to opinion generally.
By way of preparation for what I am about to say, I remind the Committee of the discussion paper that was published nearly 10 years ago on this very subject, and of the foreword that was written by the then Home Secretary, Mr. Roy Jenkins, in which he stated:
There has recently been growing public debate about the adequacy of existing safeguards for fundamental human rights and freedoms. The Government welcomes and shares the interest expressed in this important question. Last year we set up a working group, representing the various Departments concerned, to study the implications of any new legislation on the subject. Their report provides a useful summary and analysis of the issues raised by any attempt to frame general legislation for the protection of human rights—issues not only regarding the scope and extent of the rights to be protected, but also affecting the functions and relationship of parliament and the courts. As a means of illustrating these general issues in more concrete form, the working group examined in some detail the likely consequences of incorporating the European Convention on Human Rights into our domestic law, but their report makes it clear"—
and these words I emphasise—
that there are other possible approaches which should also be considered".
§ One of the possible approaches was to enable complaint to be made to a commission for human rights. That was a view that I personally welcomed because something over 15 years ago, as a private Member of another place, I myself introduced the Protection of Human Rights Bill, the purpose of which was to give that very remedy; to enable the citizen to make complaint to a commission for human rights that would operate very much in the way that the Parliamentary Commissioner and, since he was established, other commissioners in other bodies, have operated—so that Parliament, although not obliged to follow the findings and recommendations of such a commission or commissioner would, in the normal way, do so.
§ That Bill was never discussed in this House because, unhappily, after my own opening speech and half a speech by my right honourable friend Mr. Peter Archer, in support of it, the House was counted out. I always like to think that that was because there was so little opposition to the Bill that the vast majority of Members did not consider it worthwhile to attend. I do not believe that the noble Lord, Lord Broxbourne, was present on that occasion. If he had been, we should have benefited not only from his words of wisdom but also from the number one, which would have enabled the debate to continue—because it was only by one that we did not secure an adequate number.
§ At any rate, it is not my purpose to resume that debate 15 years later in your Lordships' House. I mention it partly in the hope of thereby establishing my own bona fides in relation to this subject, if that be necessary, because I have for a very long time felt that we should improve our methods of making remedies available in cases of breaches of human rights. It is totally unsatisfactory that a British citizen, or one indemnified by what may be done in breach of our obligations under the convention in this country, should be unable to raise the matter here unless it is covered by legislation and should be compelled to wash the dirty linen in Strasbourg. That is the effect of the present situation.
§ The noble Lord's Bill seeks to remedy the matter, as I said, by giving a right to remedy in the United Kingdom courts. I think the noble Lord will probably agree that there are difficulties about that method. In principle the major difficulty about that method is that the convention was certainly not drafted by the founding fathers, having in mind that it would be introduced lock, stock and barrel into the English 1089 common law system—our statutory system—and that it would be subjected to the methods of interpretation of statutes which are used in this country. Indeed, had that been the intention, no doubt steps would have been taken by successive governments to accomplish that at a very much earlier date than now. Because the difficulties of doing that were realised, that has never been done.
§ One can perhaps illustrate the difficulty by reference to some of the articles, and particularly the exceptions to some of the rules which the convention lays down. A very large part of the convention is already part of United Kingdom law as a result of statutes which deal specifically with the subjects concerned; for example, equality between the sexes, race relations, and so on. Our own statutes deal with those matters. But there are a great many exceptions to certain fundamental rights which the convention allows. One can take as an example Article 9 which relates to the right to freedom of thought, conscience and religion, and Article 10 on the right to freedom of expression. Article 11 refers to the right of freedom of peaceful assembly and association with others. All are very much part of the same general concept. One finds the exceptions include that they are subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.
§ I do not for one moment suggest that our judiciary is incapable of deciding what is in the best interests of society and in the interests of those various headings, wide as some of them are, particularly the term "morals". What I suggest is that it has not been the tradition of our courts to do so, that many of these matters are very much questions of political judgment and that our courts have traditionally eschewed making political judgments, certainly based on extremely wide-ranging and uncertain provisions.
§ My personal difficulty about the noble Lord's method of dealing with this matter is not so much that I take the view that the courts would be unable to find answers, but that in finding answers they would be entering into what is for them a new field, and as a result of that would be subjected to a great deal of criticism which I wish to avoid. Because of that criticism, particularly on delicate matters of judgment of this kind, the independence of the judiciary might well be eroded and certainly attacked. That is the main problem that I see about the proposals made by the noble Lord.
§ 6.15 p.m.
§ There is a subsidiary problem which is perhaps technical but nevertheless has some importance. It is one to which I referred when I was privileged to give the Macdermot lecture at Queen's University many years ago. It is a peculiar situation and I stand to be corrected if my reading of the convention is wrong. My understanding is that if the noble Lord's Bill is enacted in the way that it is drafted—indeed, in any other way as I do not think this can be circumvented without an amendment to the treaty—then a citizen could place his complaint before the courts and appeal right to the House of Lords. If he is dissatisfied he could then petition the European Commission at Strasbourg. On 1090 the other hand, if the decision of the House of Lords went against the Government there would be no means by which the Government could take the matter to Strasbourg. That is a most odd situation. I gave it much thought at the time and I could see no way out of it other than an amendment of the treaty. It would certainly be a very unbalancing factor. However, that is very much a subsidiary point.
§ It is in the light of those difficulties that I hope the Committee will give some consideration to the fact that there are the alternatives to which Mr. Jenkins referred, and particularly the possibility to which I referred and sought to bring into effect in the Bill that I promoted in the Commons; that is, enabling a citizen to make his complaint to a human rights commission which would examine the matter with every possible thoroughness against the background of the convention and then make a recommendation and give a decision of its own, not having the force of law.
§ As I think I said earlier, I cannot recall an occasion when a complaint to the Parliamentary Commissioner, which the Parliamentary Commissioner has held to be well-founded, has not, in practice, given rise to compensation and perhaps to a change in the law, where that is necessary, on the part of the Government of the day. Therefore, although there would not be the force of law which the noble Lord's Bill provides for, in the judgment of the courts there would be something so very near it that there would be very little lost, so far as I can see.
§ I do not suggest that that is the only alternative. There are other options and the fact that there are ought not to be lost sight of during the Committee stage of the Bill. It is against that background that the effect of my amendment, if accepted, would be to enable the courts to deal only with matters which have already been adjudged by the European Court of Human Rights. I am not sure whether that ought anyhow to be inserted into the Bill of the noble Lord. He will have to think about that, because I am not sure whether the Bill as it stands requires effect to be given to those judgments. That is a matter for him to consider. However, it would not enable the citizen to make complaints to courts before that stage had been reached.
§ Having said that, I hope I have said enough to make clear that it is not my intention to wreck this Bill. I want to hear what Members of the Committee say about this matter, because it is a very important issue. Certainly it is my intention, when the debate on this amendment is concluded, to ask leave to withdraw my amendment.
§ Lord Campbell of Alloway
I share the view expressed by the noble and learned Lord, Lord Silkin, that there should be some means of providing a remedy in our courts. I also share his view that there should be some improvement in our methods and that we should avoid the laundry exercise at Strasbourg. I further agree with him that there are many alternatives.
The amendment itself does not propose a Parliamentary Commissioner, but suffice it to say that it has been mentioned as an alternative. It is certainly worthy of consideration. I agree with my noble and 1091 learned friend. In this difficult exercise I think one has to start on common ground and I agree that the introduction of the convention, lock, stock and barrel into our law, is simply not feasible, for the reasons given at Second Reading, and that much of the convention at any event is part of our law.
Though the noble and learned Lord says that this is a vehicle for alternatives, and it certainly has served that very useful purpose, if the amendment were to be accepted it leaves the Bill open to the main objections taken on Second Reading and to some of the objections to which the noble and learned Lord, Lord Silkin, referred. First of all, it would leave a Bill, with his amendment, with entrenchment by derogation from the sovereignty of Parliament. Secondly, it would still stand, with his amendment, as a form of new constitutional settlement dressed up as a sort of Bill of Rights. Also, if you accept the amendment into the Bill as it stands, it would still leave delay, confusion and want of predictability in our law as administered in courts and tribunals, which would clog the system and render it unworkable.
In fact, this amendment introduces these words into the definition clause, Clause 1(2), and this means no more and no less than that under Clause 3(1) there would be no remedy in our courts unless our courts decided that the European Court of Human Rights had already delivered a judgment which covered the issue in question. This would lead to lengthy and detailed submissions in our courts as to whether a previous decision of the European Court of Human Rights was or was not distinguishable, and that is not a satisfactory situation, as all the decisions of the Court of Human Rights are related to the facts of the case.
Indeed, if this amendment were accepted in anything like its present form, there would be few cases in which it would be totally plain that it has been held (those are the words of the amendment) that the act in question constituted an infringement. If we are to have any remedy at all in our courts, it should be available without artificial and academic rigidity. The jurisprudence of the court and the Commission ought to be interpreted by our courts as being applicable to the question at issue with the ultimate degree of flexibility, and above all the remedy should be available without the wholesale entrenchment provisions as proposed by this Bill, which, as I read it, the amendment in no way seeks to excise.
For those reasons, I oppose the amendment, though I am grateful to the noble and learned Lord for introducing a vehicle for the discussion of alternatives.
§ Lord Denning
I hope that Members of the Committee will not accept this amendment, which is contained simply in the definitition clause. I have looked for the place where the word "infringes" comes into the body of the Bill, and it comes into Clause 3(1):no person shall do any act … which infringes any of the fundamental rightsIf one puts in this definition then a decision must be obtained from the court at Strasbourg before one can start applying it at all. That is quite impracticable. It would take too long, and so far as I know there is no machinery for doing it in a hypothetical case. I hope that the Committee will not accept this amendment.
§ Lord Scarman
I also hope that the Committee will not accept this amendment, for the reasons which have been given very effectively by the two noble and learned Lords who have preceded me. It was entertaining to listen to the observations of the noble and learned Lord, Lord Silkin, in proposing this amendment. Very wisely, I think, he refrained from explaining the implications of the actual amendment for this Bill. He used the opportunity to enlighten us with what I thought were some very interesting observations about the possibility of a Parliamentary Commissioner for Human Rights and about other ways of enforcing the European Convention.
None of that helps us to understand whether this amendment can stand in this Bill; and it cannot. Indeed, there may possibly be the extraordinary result that, the court at Strasbourg having ruled that such-and-such is an infringement, someone—presumably the victim—who has fought his way to Strasbourg (and it takes a very long time to get there) in order to get that sort of ruling, is then supposed to come back here and begin proceedings in our courts, where he will have the happiness of telling our courts that they have to treat this matter as an infringement because Strasbourg has already done so. There is nothing in this Bill which is as revolutionary or as protracted as that. I think we have had an interesting discussion but I cannot see that this amendment can possibly assist toward a clearer or more coherent Bill
§ Viscount Davidson
Perhaps it will be helpful to the Committee if I intervene very briefly at this stage and say a few words about the Government's general attitude to this Bill.
As the Committee will know, the Government usually adopt a neutral position during the passage of Private Bills through the House. But as my noble friend Lord Glenarthur explained at Second Reading, the Government cannot support this particular measure. Therefore, I have to say to the Committee that though I may be making certain comments that I hope are helpful as to the value or otherwise of particular amendments, in no sense should this be construed as a change of mind on the part of the Government. The Government remain firm in their opposition to the aims of the Bill, as my noble friend Lord Glenarthur expressed so clearly at Second Reading. In passing, I should like to say that my noble friend very much regrets that he is unable to be present in the Committee tonight.
So far as this amendment goes, its effect would be that, as now, it would be for the court in Strasbourg first to decide whether an act had infringed the rights and freedoms guaranteed by the convention and only then could the matter be the subject of a decision of the United Kingdom courts. It is hard to see, under the terms of this amendment, any meaningful role for the United Kingdom courts, since they would apparently simply rubber-stamp the Strasbourg decision.
In practice, therefore, the amendment would appear to remove discretion from courts in the United Kingdom to interpret the provisions of the convention even though those provisions had been incorporated into United Kingdom statute law. This would be a curious result, and it is difficult to see what merits there would be in incorporating the convention in such circumstances.
§ 6.30 p.m.
§ Lord Broxbourne
The noble and learned Lord, Lord Silkin, has moved his amendment with his customary clarity, cogency and charm. Having made that initial conciliatory and, I hope, agreeable and acceptable tribute, it will come as no surprise to the Committee, and certainly not to the noble and learned Lord, when I next say that unfortunately I cannot extend to the content of the amendment the approbation which I extend to the style of its presentation.
The main argument with which the noble and learned Lord appeared to seek to commend this amendment to the Committee was that after all it does not mean what it says. That is a novel argument and, though as we know, the noble and learned Lord has great and distinguished experience in his forensic capacity, I do not think he would ever really have opened a case in the courts by saying, "Of course, your Lordships will appreciate that the strength of my case lies in the fact that it is not what it seems to be."
This amendment, although it nestles coyly in the interpretation clause, nevertheless goes to the very heart of the matter, for reasons that have already appeared in the speeches of your Lordships. It does so, as the noble and learned Lord, Lord Denning, explained, because of its effect upon Clause 3(1) of the Bill, which prohibits acts which infringe any of the fundamental rights and freedoms. If the amendment were carried, it would mean that the remedy in the United Kingdom for infringement would be limited to cases where the act in question was subject to an express decision of the Court of Human Rights in Strasbourg. That is a very artificial concept and would undermine the purpose of the Bill, as explained in the Long Title, in giving British judges a role in the interpretation of the convention and its rights and freedoms. It would reduce our judges, in effect, to the position of registrars, simply dealing with the judgments already arrived at in Strasbourg.
It would also, as my noble friend Lord Campbell of Alloway pointed out, impose delays and complexities in what is designed to be a simplification procedure. One can well imagine the lengthy and semantic submissions of ingenious counsel in seeking to distinguish decisions in the Strasbourg courts from decisions in the instant case before the British courts.
The noble and learned Lord has not found much support in your Lordships' Committee for this amendment and indeed it must be contrasted with Amendment No. 7 in the name of the noble and learned Lord, Lord Denning, which would deny to the European Court any role at all, and which specifically states that British courts should not be bound by the interpretations of the European Court.
So I find myself, the promoter of this Bill, in a very comforting position, occupying the middle ground between these two extreme positions of the noble and learned Lords. Perhaps the noble and learned Lord, Lord Silkin, and the noble and learned Lord, Lord Denning, could come to some sort of arrangement. They might, for example, in the language of that other House of which Lord Silkin was for long so great an ornament, arrange a pair or perhaps, more appropriately to this legal concept, they might appoint an 1094 arbitrator, or conceivably what Continental lawyers know as an "aimable compositeur". I would, without fee, be willing to volunteer to act as such an arbitrator, but when I look at the Cross-Benches and see the wealth of talent there, I see others who would fill this role more acceptably: the noble and learned Lord, Lord Scarman, or the noble and learned Lord, Lord Templeman, whom it is so good to see here today.
But I hope it will not be necessary to have recourse to these matters. I hope and understand it to be the case that the noble and learned Lord will not press this amendment, though we have all, of course, listened with great interest, attention and respect to what he has to say. It has given us food for thought which will help us in the processes through the Committee.
I should not perhaps resume my seat without one very brief comment upon the—not strictly relevant, if I may respectfully say so, to the content of the amendment—contribution from my noble friend on the Front Bench. I should not like it to be thought because of my silence on such a matter that I accept the propriety of what he said. I am sorry that the Government should have jumped so quickly to a hostile position in regard to this Bill. Indeed, the enthusiasm of the Front Bench opposite, as I understand it, is also, in the classic phrase, restrained within the bounds of decorum. I take comfort from the fact that we have who have been in politics and in Parliament for some time realise that when you have a measure which does not commend itself to either Front Bench, it must have very considerable merit indeed. So perhaps my noble friend will be good enough to take that message back to his colleagues in whichever House they may serve.
We shall now await the decision of the noble and learned Lord whose speech we have so much enjoyed.
§ Lord Silkin of Dulwich
I am grateful to those noble Lords who have taken part in this discussion. To quite a large extent they have perfectly properly, and not unexpectedly, regarded this amendment as an Aunt Sally. I do not object to that at all because I think that putting forward the amendment has helped a great deal in finding what common ground there is. I was particularly gratified by the opening words of the speech of the noble Lord, Lord Campbell of Alloway, in which he set out very clearly the areas where he and I find ourselves in agreement. No doubt there will be other noble Lords who echo what he has said. I think it has probably also been of value in disclosing clearly at a very early stage the position of the Government through the remarks of the noble Viscount, so that future amendments will no doubt be viewed against the background of the policy which the Government have announced.
I should not like it to be thought from what the noble Lord, Lord Broxbourne, said that the Front Benches are ad idem in the sense that both have a clear and fixed policy. The Government evidently have. As far as the Opposition are concerned, I do not think that we have got much further, if at all, than the discussion paper to which I referred, which is now 10 years old. Since that time, we have lost office. I have been greatly helped by what has been said. I indicated in my opening remarks that it was not my intention to press the amendment but merely to open up discussion. 1095 That discussion has taken place. I beg leave to withdraw the amendment.
§ Lord Harmar-Nicholls
Before the noble Lord in the Chair puts the withdrawal to the Committee we should, I believe, cheer up my noble friend a little. I should have thought at this early stage of the Committee proceedings that government neutrality does not necessarily mean government hostility to the Bill as a whole during its passage. At any rate, I hope that they will listen.
§ Viscount Davidson
To reply to my noble friend, I was reminding the Committee of what my noble friend Lord Glenarthur said on Second Reading.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Convention rights and freedoms to have force of law]:
Lord Campbell of Alloway moved Amendment No. 2:
Page 2, line 13, leave out ("have the force of law in the United Kingdom") and insert ("be taken into account only in proceedings for judicial review and in any appellate proceedings arising therefrom and subject to the provisions of this Act.").
§ The noble Lord said: In moving the amendment, I wish, by leave of the Committee, to speak to Amendments Nos. 3 to 6 and 10 and 11 that also stand in my name, all of which are related and consequential. If my Amendment No. 2 was accepted on a Division, my noble friend Lord Broxbourne agrees, subject, of course, to the wish of the Committee, that Amendments Nos. 3 to 6 and 10 and 11 be moved formally. Per contra, if my Amendment No. 2 is negatived on a Division, I shall not move Amendments Nos. 3 to 6 and 10 and 11. Further, when we come to the Question, Whether Clause 2 shall stand part of the Bill—the very kernel of the Bill—I shall oppose it formally, without repeating anything that I have said in my speech on this amendment. If that is convenient to the Committee, it will save a great deal of time.
§ This is not at all an Aunt Sally. It is a vehicle for an alternative, yes, but an alternative that it proposes. At Second Reading, it was all too plain that the Bill was not acceptable to noble Lords on all sides of the House. Notwithstanding the intervention of my noble friend Lord Harmar-Nicholls—I do not see my noble friend in his place—it was made plain at that time what the attitude of the Government was. And it has been made perfectly plain what is the attitude of the Government today. It is, I would suggest to your Lordships, thoroughly laudable that we should all know where we stand.
§ I, for one, am grateful—I can only speak personally—to know the attitude of the Government, in particular when they are hostile. It is rather like having an indication from a judge who is against you. It is very helpful. You cannot deal with a situation if the judge does not indicate. I am therefore very grateful. I wish to have it recorded that I am grateful to my noble friend the Minister for having, so to speak, come clean on this issue, so that we know where we stand.1096
§ 6.45 p.m.
§ It was not only the attitude of the Government but the attitude of your Lordships on all sides of the House on Second Reading that the Bill, as it stood, was not acceptable. The question is whether there should be some effective remedy in our courts. Although that was canvassed at Second Reading, it was not fully discussed. As to whether there should be an immediate, effective remedy in our courts, I am, on the ideological principle, 100 per cent. behind the noble and learned Lord, Lord Scarman, my noble friend Lord Broxbourne and also it appears, the noble and learned Lord, Lord Silkin, and, indeed, others who hold such a view. That there must be some remedy is common ground among all of us.
§ There was common ground at Second Reading. There is already some common ground today. But there is also this irreconcilable conflict as to the means of implementation. To digress for a moment, this is why it is so helpful that the Government have stated their view. The means of implementation proposed in the Bill are not acceptable to the Government. That does not mean that the alternatives, whatever they may be—I am speaking only to the amendment—will not be, and can never be, acceptable to the Government.
§ The set of amendments to which I am speaking proposes a limited remedy by extension and adaptation of the process of judicial review, our type of administrative court. I wish to make something plain in exchange for the Government's candour. If the amendment were accepted on a Division, any form of amendment introduced by the Government to produce a remedy in our courts on Report would assuredly be acceptable to me.
§ This is a difficult subject. I have done my own drafting without assistance. Obviously, there is scope for amendment and considerable scope for improvement. But the principle involved remains a remedy in our courts, our common ground. That is of great importance. It is of great importance to any government. There is no political bias whatever involved here. It is a question of orderly administration, consistent with avoidance of the horrors of wholesale entrenchment.
§ What is the justification for this? As your Lordships' Committee perhaps knows, since 1975 there have been a series of adverse rulings, 12 out of 14, against Her Majesty's Government. As a result, we have to carry inconsequential piecemeal amendments to our law. That is but one of the reasons for providing the remedy in the courts. It may be said by my noble friend the Minister that this is how we work and this is what happens when there are adverse decisions of the Court of Justice of the European Communities. But the two situations are wholly dissimilar.
§ A decision of the Court of Justice of the European Communities is based upon the concept of contravention of Community law that we have accepted by statute as having supranational effect. A decision of the European Court of Human Rights is based upon the absence of a remedy in our courts. It is a problem that arises under Article 50 of the convention—a convention that we have never accepted by statute as having supranational effect. In a 1097 sentence, as regards Community law, there is a remedy in the courts. As regards the convention, there is not. And there should be one.
§ These amendments ensure that the convention and its relevant jurisprudence shall be taken into account to provide this remedy in our courts without the wholesale incorporation by which the convention and its jurisprudence shall be made binding in our courts and tribunals throughout the land. The Select Committee found that there was no way in which this could be properly done: to make the convention binding by wholesale incorporation. One should defer to some degree to their findings upon that.
§ With regard to the method of implementation proposed—enlargement of the process of judicial review—in other countries a domestic remedy is available in their forms of administrative court. We have in strict parlance no administrative court, but some of the functions of administrative courts are discharged by judicial review. Since the end of the war the scope of the remedy of judicial review has been enlarged by a series of case law decisions and amendments to the rules of court. In its present form it is practically unrecognisable, because of its wide scope and enlargement, if one compares it with the old prerogative writ structure from which it evolved.
§ If we are to provide a remedy in the courts it would surely be appropriate to extend and adapt the scope of judicial review to meet this purpose. Amendments Nos. 2 and 3 to Clause 2, consequential Amendments Nos. 4 to 6 to Clause 3, Amendment No. 10 to Clause 8—the interim relief, and reference to Crown proceedings—are all intended and designed to adapt and extend the process of judicial review to provide this remedy. In this the judges are wholly competent and wholly to be trusted to discharge such functions. If it were the wish of Parliament that they should discharge such functions it cannot be imagined that they would be unwilling to do so.
§ It may take a little time to work out the machinery for implementation. In that, my amendment is consciously defective. The reason for that is that there would have to be full consultations, at all events with the Lord Chancellor and the noble and learned Lord, Lord Lane, the Lord Chief Justice, and no doubt many of the Law Lords. Consultation would be vital in order to get the machinery right; and draft amendments to the rules of the Supreme Court would have to be prepared. Amendment No. 3, in subsection (4), deals with that.
§ As proposed, these amendments would have to be laid before the Houses of Parliament for approval. It would be quite impracticable to give effect to these amendments until the appropriate rules of procedure had been approved after detailed consultation—hence the need for Amendment No. 11, the new clause after Clause 9. That is the structure. Those are the reasons in support of the amendment. As there is a stark, irreconcilable conflict between this set of amendments and the Bill as it stands, and as it appeared on Second Reading that there was opposition to the Bill on all sides of the House—1098
§ Lord Broxbourne
My noble friend courteously asked whether I wanted to intervene. All I wish to say is that no doubt there was opposition expressed on all sides to the Bill. There was also support expressed on all sides. Indeed, I think that it goes a little further than that, because there was support from the episcopal Bench; and I do not think that there was any opposition from that Bench.
§ Lord McGregor of Durris
It was also stated in terms from these Benches that the Alliance supports the Bill. There are no grounds for saying that opposition is shared by all parts of the Committee.
§ Lord Campbell of Alloway
Subject to correction, it is perfectly right that there was opposition, as I understood it, from all quarters. As I also understand it, there is no Whip on any party on this Bill. Everyone is speaking free of a Whip. I may be wrong; that is how I understand the position. My understanding of the situation was that there was opposition from all sides of the Chamber to this Bill. There was also support from certain quarters for this Bill.
If I had been given the chance to continue, I do not think that there would have been cause for complaint. In those circumstances, as at present advised, it would be appropriate, particularly in view of the intervention of the noble Lord from the Cross-Benches, to seek the opinion of the Committee on this amendment before we reach the Question as to whether Clause 2 shall stand part. I was seeking to be frank with the Committee and to say that, as at present advised, that was my intention because there is a division of opinion.
The question is whether we should have the benefits of some remedy by way of judicial review without the burdens of wholesale entrenchment, as certain Members of the Committee would wish. I beg to move.
§ Lord Denning
I have every sympathy with the amendment that is proposed by my noble friend Lord Campbell of Alloway. However, I am afraid it would wreck the Bill if it were carried. It goes completely against the principle which I gather was supported at Second Reading that the convention on fundamental rights and freedoms shall have the force of law in the United Kingdom. That is what all the supporters of human rights have said from the beginning: let us have something in our law to make human rights have the force of law. That is the fundamental object of this Bill.
Perhaps I may go back to the original words of the convention signed by us in 1950 or 1952. It said:The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.1099 Article 13 says:Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy beforeour national courts. Those are the very words of the convention which the then Government signed. I am afraid that if this amendment is carried, there would be no effective remedy at all for any violation of any of the rights. One only has to look at the words; they are simply that the courts shall take it into account.
I am afraid that from my point of view, having sat in the Court of Appeal (I am not sure whether my noble and learned friend Lord Scarman was with me) on many occasions we have said that we would look at the convention and take it into account when we come to our decision, but that we will not give it the force of law. This amendment is simply doing what we have said many times in the Court of Appeal: that the court takes it into account but does not give effect to it. Therefore, this amendment goes no further than the courts have done. We have always allowed remedy by judicial review for anything that went wrong. In a way the amendment does nothing more effective than we have already done, and it would really torpedo the case of the promoters of this Bill.
§ Lord Scarman
I have frequently sat on the left flank of my noble and learned friend Lord Denning in the Court of Appeal, and I have as frequently agreed with him as I have disagreed with him. On this occasion I agree completely. The amendment denies the primary purpose of the Bill for the reasons that my noble and learned friend has given, and I shall not go over them.
However, there is a further weakness in the amendment, a legal weakness, upon which my noble and learned friend touched and which I shall amplify a little. The clause as it stands is quite clear. The fundamental rights and freedoms set out in the schedule shall have the force of law in the United Kingdom. They become by law, rights and freedoms in the United Kingdom.
What happens in relation to the amendment of the noble Lord, Lord Campbell of Alloway? They become matters that can be taken into account in proceedings for judicial review. The European convention has been taken into account by the Court of Appeal and the House of Lords in proceedings for judicial review and otherwise for a very long time. In fact, what is happening is that these which were, by Clause 2, rights and freedoms having the force of law, become matters which may be taken into account; they are no longer legal rights protected by law, but matters which, in discretionary proceedings known as judicial review, can be taken into account by the judge if he thinks fit.
Not only is that a denial of the whole purpose of the Bill, but if this amendment is allowed to stand and the only proceedings in which the European convention rights and freedoms could be taken into account were discretionary ones I very much doubt whether it would ever be possible to persuade the court at Strasbourg or elsewhere that such a provision in itself provided an efficient remedy in the United Kingdom. Discretionary: no longer rights or freedoms, but matters to be taken into account. Of course matters can be taken into account and not given effect to. The 1100 whole point of a Bill of Rights is that the individual has certain rights and certain freedoms which the courts are bound to enforce if he proves a violation.
I am sorry to say that the whole of this amendment is misconceived. I say that because I fundamentally agree with the noble Lord, Lord Campbell of Alloway, when he moved this amendment and said that there must be some remedy in our courts. This was his preferred choice. I hope, not too discourteously, that I have indicated shortly, following my noble and learned friend Lord Denning, that this remedy, if it be the only remedy—and it is under the amendment—is not enough. It is not enough to meet the requirements of either Article 1 or Article 13 of the convention. It is not enough to give the citizen any rights. It merely gives him a legitimate expectation that, if he goes to a judge on application asking for leave to bring proceedings, he may get it. I say to the Committee that that is not good enough.
§ Lord Meston
Perhaps I may also respectfully urge noble Lords to reject this amendment. If the United Kingdom is to incorporate the convention, it should incorporate the relevant articles in full, and that as I understand it is what this Bill intends. In appropriate cases, with, if necessary, appropriate safeguards, the courts at all levels and in all types of proceedings should be able to have regard to and give effect to, the convention. The courts should be able to consider alleged breaches of the convention and provide remedies where deserved.
This amendment and the earlier one of the noble Lord, Lord Silkin, moved us from the theory to the practice of incorporation of this convention. In particular the noble and learned Lord, Lord Silkin, raised the serious question, as does this amendment, of how the provisions of this Bill would work in practice. As I read Clause 3 of the Bill—and I hope that the noble Lord, Lord Broxbourne, will correct me if I am wrong on this—it creates a form of statutory tort. The question is therefore where and how can that be litigated; should it be in some separate tribunal—as is now the case in race relations law and industrial relations law—perhaps with a collateral commission like the Commission for Racial Equality or even ACAS? If so, I suspect that the manpower implications in the Explanatory Memorandum to the Bill would need to be revised. Alternatively, as I read Schedule 3 to the Bill, can the convention be raised by and in ordinary litigation, with of course necessary safeguards to weed out unmeritorious cases? I suggest that it should be possible to raise the convention in any court or tribunal.
As several noble Lords have pointed out, in effect this amendment is a wrecking amendment because it seeks to emasculate the Bill. It would mean that any point touching on the convention could not be raised in ordinary first instance procedings, and further it would mean that in ordinary proceedings the convention would have to be disregarded. Under this amendment, there must be separate proceedings for judicial review, and in those separate proceedings it is only necessary, as the noble and learned Lord, Lord Denning, pointed out, to have regard to the convention.
The provision of a separate procedure for judicial review would obviously create duplication and delay, 1101 often at public expense, and it would be little better than the existing long-range, time-consuming litigation in the European tribunals. The procedure of judicial review, notwithstanding its enlargement in recent years, is at present primarily geared to questions of administrative law. It is usually concerned with how administrative decisions are reached, and not with the merits of the decisions themselves. The convention is much wider. It touches on criminal law and family law, and in such areas people should be entitled to raise the convention in ordinary litigation. Even an enlarged version of judical review is not enough. To accept this amendment would be to put the provisions of the convention on a procedural back-burner. I ask noble Lords not to accept the amendment.
§ Lord Templeman
I also oppose these amendments but for a slightly different reason. As I understand the noble Lord, Lord Campbell of Alloway, he is not trying to wreck the Bill. He agrees, as I understand it, that there should be some machinery in our law for enforcing the convention. What he now proposes is that it should be done by way of judicial review. Judicial review is carried out by two judges of the divisional court of the Queen's Bench Division. What this amendment says is that none of Her Majesty's judges shall have jurisdiction to hear the convention except two judges of the Queen's Bench Division, subject to an appeal to the Court of Appeal and then to the House of Lords.
That really is a curate's egg. Either none of the judges should be able to do anything about the convention and we should leave the law as it stands, or, if the convention becomes part of the law of this country, then, of course, all the judges may take cognisance of it. But to take out and to segregate the judges of the Queen's Bench Division exercising their judicial review function is neither one thing nor the other.
§ Lord Hylton
I hope that this amendment will not be accepted. At Second Reading I mentioned the special case of Northern Ireland, from which have come, incidentally, many of the appeals which have eventually gone to the European Court. Northern Ireland is a very divided society, and even more so than this country, but the one thing on which nearly all the political parties are agreed is the need for a Bill of rights. If this amendment were accepted, we should not have a Bill of rights.
§ Lord Broxbourne
Where such authoritative contributions have been made to this discussion by the noble and learned Lords, Lord Denning, Lord Scarman and Lord Templeman, all in agreement, all showing that this amendment is not acceptable, it is perhaps an act of supererogation for me to say anything further on the matter. I make a few observations only out of courtesy to the Committee and to my noble friend who moved the amendment.
As the noble and learned Lord, Lord Scarman, said, this is not a question of whether judicial review as such is a good thing. It is limited in its application, as the noble and learned Lord, Lord Templeman, has so clearly shown just now, but certainly the Bill is not intended to exclude its consideration in the processes of judicial review in those proceedings defined by 1102 Section 31 of the Supreme Court Act 1981. As the noble and learned Lord, Lord Templeman, said it should be comprehensive, and that is what it is sought to be made in this Bill.
What is not acceptable is that there should be a monopoly, an exclusive right, restricted to the judicial review procedure, and I should submit that the onus must be on those who so suggest, and a heavy onus it is. It is true that there is no express obligation on the contracting states to incorporate the convention into their domestic law, but the European Court of Human Rights has said that by doing so a state ensure that the intention of the convention is "faithfully reflected in its law". That, I should think, is a clear hint as to the propriety and desirability of such a course.
Other countries have taken the hint. They have incorporated the rights and freedoms of the convention into their national law by means suited to their own constitutional position and without the restriction of qualification such as is here proposed. The convention has now been incorporated by all the member states of the EC except ourselves, Ireland and Denmark. In Austria, Belgium, Cyprus, Germany, France, Greece, Italy, Luxembourg, The Netherlands and Switzerland the convention forms part of the internal domestic law. Indeed, in the Federal Republic of Germany the legislature approved it by statute which expressly gave the convention the status of federal law.
There are many precedents for incorporation in the way suited to particular countries, and there seems to be no good reason why we should be the odd man out. Article 26 of the convention prescribes as a condition precedent to recourse to the commission that all domestic remedies have been exhausted. Does not this sensible provision suggest and require for its efficacy that all domestic remedies should be as clear and as comprehensive as possible?
That is what the Bill is designed to do, and that is what the amendment would prevent it from doing. Indeed, the amendment would exclude proceedings in the lower courts, all closely concerned with the lives of ordinary citizens, with the wrongs they suffer and the rights that should be theirs, are theirs internationally under the convention and would be theirs in our courts under the provisions of this Bill.
This is a wrecking amendment, as it has been described. Whether it is by intention or inadvertence does not really matter very much. After all people are presumed to intend the natural consequences of their acts, and the natural consequence of this, as the noble and learned Lord, Lord Denning, made so clear is to undermine the purpose of the Bill and erode its effect. I hope that my noble friend will, twixt the stirrup and the ground, follow the good example of the noble and learned Lord, Lord Silkin, and not press his amendment. If he does so, I hope that the Committee will reject it.
§ Lord Campbell of Alloway
I am grateful to all noble Lords who have spoken in this debate. Assuredly the object of this amendment is to reduce the incidence of this Bill so as to avoid the unwelcome consequences 1103 which require no repetition, while at the same time creating some remedy within the concept of Article 50—which, because there was no remedy in our courts, was the basis of the string of those adverse decisions—and to do that without wholesale incorporation into our law of the creation (as this Bill seeks to create) of some new Bill of rights; a new constitutional settlement to which I am utterly opposed.
The noble and learned Lord, Lord Scarman, says that my proposed amendment is not good enough. Of course, he would say it is not good enough because he supports a Bill which proposes wholesale entrenchment, and so there always will be the unbridgeable gulf between the noble and learned Lord and myself.
It is clear that the alternative proposed by me is no more acceptable to your Lordships than the alternative proposed by the noble and learned Lord, Lord Silkin. In a thin Committee at this time of night it would be quite improper to divide your Lordships' Committee. But when it comes to the Question, Whether Clause 2 shall stand part of the Bill, those who, like myself, are utterly opposed to a new Bill of rights entrenched in our law may take such course as appears appropriate. In those circumstances, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 3 not moved.]
§ Clause 2 agreed to.
§ Clause 3 [Liability for breach of fundamental rights and freedoms]:
§ [Amendments Nos. 4, 5 and 6 not moved.]
§ Lord Denning moved Amendment No. 7:
Page 2, line 28, at end insert—
("(4) This section shall be construed as covering any violation of the Convention or the Protocol by the United Kingdom or by any person within the jurisdiction of the United Kingdom, and as giving a domestic remedy for any such violation.
(5) Henceforward no-one shall petition the Secretary-General of the Council of Europe alleging any such violation; nor shall the European Commission of Human Rights, nor the European Court of Human Rights, have any jurisdiction to consider or deal with any such alleged violation.
(6) The interpretation of the Convention, the Protocol, or the Reservation, as set out in Schedules 1 and 2 to this Act, shall be for the Courts of the United Kingdom to decide; and the Courts shall not be bound by any interpretation given by the European Commission or the European Court.").
§ The noble and learned Lord said: I hope that the Committee will find this one rather intriguing because I have deliberately accepted everything: that the convention shall have the force of law in the United Kingdom and any violation of it is actionable in our courts. We have fulfilled completely our treaty obligations in those respects which I read out, Article 1 and Article 13. So, if there is any violation of these rights, go to our courts and get the remedy! Before I speak further, I should like to draw a distinction between this Convention on Human Rights and the Community law under the Treaty of Rome which is enforced by the European Court at Luxembourg.
§ The Treaty of Rome specified many provisions such as equal rights for equal pay and equal pay for equal work and so on; and by our own statute, the European 1104 Communities Act 1972, that treaty and all its provisions were made part of our law and so were the directives and the regulations under it which have been issued by Brussels. All that is part of our law and, by judicial decisions, it is clearly established that that Treaty of Rome has priority or supremacy over our individual laws. Furthermore, any one in our courts can go to the national courts and get a remedy for it. That is because that Treaty of Rome in every detail has been made part of our law.
§ This will be made part of our law, but what is to be done about it? What I object to is this. The treaty-making power of the Crown is part of the prerogative of the Crown but it is not absolute. As recent cases have shown, it is limited. I would suggest that the treaty-making power of the Crown does not extend to limiting the sovereignty of Parliament or to limiting the sovereignty of our courts over our English law. The other provisions of this convention which the Government have signed do limit the sovereignty of Parliament, do limit the sovereighty of our courts because—and many times it has happened—after a case has been decided, the individual says: "Oh! I am going off to the European Court of Human Rights". And off he goes! Even in a case decided by the House of Lords, the Sunday Times case, they go off to the European Court of Human Rights. And the House of Lords' decision was reversed by 11 to 9. That was a decision of our court, the highest court in our land.
§ And then there was the case of the three railwaymen who refused to join a trade union. Under our legislation, by statute, they had no right to claim for unfair dismissal. They took their case, if you please, to the European Court of Human Rights and then they found that our statute, passed by a Labour Government, it may be, violated human rights. So, in effect, they overuled our statute and we had to make another statute. I could go on with case after case which we have had on different articles. There was the one a little while ago, a most interesting one, about the children and the schools and corporal punishment. Corporal punishment by a master was quite lawful under our laws as long as it was reasonable and the circumstances justified it; but, if you please, that state of our law was taken before the European Court of Human Rights and they said that it was unlawful if it was done without the parents' consent.
§ They relied on Article 2 of the protocol saying that the state must respect the rights of parents to ensure that such education and teaching was in conformity with their own religion and philosophical convictions. They extended that clause beyond question, so as to say that you could not beat a boy or cane a boy at school without the parents' consent. The English judge, Sir Vincent Evans, dissented. The court decided by six to one that it would be a violation of human rights to cane a boy without his parents' consent. The Committee may remember that the Government brought in a Bill to try to implement that decision of the European Court but your Lordships, I am glad to say, refused to do so.
§ There it is. I give those illustrations to show that at the moment a person can go from our courts or from Parliament—although it has to go through the Commission—straight to the Court of Human Rights, which can inquire into the matter to say whether our 1105 courts were right or our Parliament was right or whatever it may be; and can reverse our decision—not reverse it actually; but clearly the Government must implement those decisions afterwards.
§ This is my important point. If we incorporate this convention into our law, as this Bill will do, if we make any violation actionable in our courts, as this Bill will do, then there is no need whatever for anyone to chase off to the European Court of Human Rights or to the European Commission and say that they were wronged. It is an infringement of our sovereignty. Therefore, once we get this Bill of Rights, through and incorporated into the law, then I say for goodness' sake let us stop any further petitions to the European Court at Strasbourg. Let us do it on our own; let us not have those clauses which say it can be negatived—and that is No 4, which is there to negative any of our statutes or anything like that.
§ Let us not have our courts, as under Clause 6, bound by what they say at Strasbourg. In other words, once we get this Bill of Rights through and enforceable in our courts, let us have no more truck with the European Commission or the European Court as at Strasbourg. Let us manage our own affairs on our own. I beg to move.
§ Lord Silkin of Dulwich
I oppose this amendment very strongly and I do so for two reasons. The first is that I find it quite extraordinary that an amendment can be moved the purpose of which is to give effect to the Bill in making the convention part of the law of the United Kingdom while at the same time that same amendment is removing from the law of the United Kingdom a major part of that very convention. It is an inherent part of the convention to provide the remedies which are referred to in subsection (5) and to follow the procedures in subsection (6). One cannot possibly profess to be bringing the convention within our law while at the same time removing the remedies which it contains. That is the first point.
The second point is a much more fundamental one. It is that, in my view at any rate, the major benefit to humanity achieved by the European convention—of which I think we were the originator, through Sir Winston Churchill, and to which we acceded and by which we have given the right of individual petition over many years through the agency of successive governments on both sides of this Chamber—is that it has enabled states to accept for the very first time in history that their own domestic law and the way they treat their own citizens should be subject to the general views of what is right throughout Europe as a whole. That was an immense leap forward. The noble and learned Lord, Lord Denning, wishes us now to take a leap back, and I for one would not accept it.
§ Lord Scarman
I have already reminded the Committee that I am accustomed to being on the left flank of the noble and learned Lord, Lord Denning, and the Committee has seen me in that position agreeing with him. The Committee will now see me in that position disagreeing with him, and disagreeing profoundly, for the reasons indicated by the noble and learned Lord, Lord Silkin.
1106 I wish just to develop those a little. There is no infringement of our sovereignty by any provision of this Bill other than perhaps Clause 4(2), about which we shall have a discussion later. There is no other infringement. Equally, there is nothing in this Bill which compels our courts, if the Bill is enacted, to accept as correct the decisions of the European Court of Human Rights in Strasbourg. There is no challenge in this Bill to the independence of our courts. I say it with great hesitation, but I have said something like it before in other contexts. The noble and learned Lord, Lord Denning, has not fully analysed the complex problem that arises when there is a treaty—and this European Convention would not be the only one—which is binding on the United Kingdom in international law and which has been incorporated for municipal law purposes into our domestic law.
Whatever is said in this Bill, the United Kingdom has ratified the European Convention. It is therefore under an international obligation—not of course enforceable in our courts—to secure all the rights and freedoms listed in the convention within the United Kingdom. If there is a difference of opinion arising between the European Court of Human Rights and, let us say, the House of Lords sitting in its judicial capacity, that does not mean that the House of Lords sitting in its judicial capacity has immediately to accept as correct a decision of the European Court of Human Rights. If the Government take the view that to persist with our municipal law as laid down by the House of Lords would involve them in a breach of their international obligations under the treaty, then their correct course is to introduce legislation overruling the House of Lords sitting judicially. That is the only way in which one could operate to make a decision of Strasbourg legally binding upon our courts.
Similarly, the convention gives to the United Kingdom, as a member state, the opportunity if it so wishes of giving its citizens a right of petition to the European Commision and giving the Commission jurisdiction to entertain that petition. The United Kingdom, to its great credit, has exercised that option and has done so ever since 1966. It did so again as recently as a few months ago when it renewed the right of petition for another five years. If this amendment became law, one would have the strange position of an Act of Parliament saying that no one shall petition the Secretary General of the Council of Europe alleging a violation—that would be the domestic law—the Government having already obliged themselves to allow such petitions. If the Government decided that that is what they should do and if they have done it, subsection (5) in this clause would itself implicate Her Majesty's Government in a breach of international obligations.
The same is true of subsection (6) of the amendment. This deals with the acceptance of the jurisdiction of the European Court of Human Rights to give the authoritative interpretation of the convention. Again, our Government have accepted, under Article 46, and have renewed their acceptance of the compulsory jurisdiction of the European Court of Human Rights. Again, what does that mean? It does not confer upon the European Court of Human Rights the power to give a decision which is immediately binding on our House of Lords, or indeed of any of our 1107 courts. All it means is this. The United Kingdom Government have accepted that if the European Court of Human Rights construes one of these rights or freedoms in a certain way and that way is not met by our municipal law either because there is a statute against it or because there is a decision of the House of Lords against it, all that means is that in order to comply with their international obligations under the convention, the United Kingdom Government will take steps (of course by legislation) to correct our law.
Therefore in a sense this amendment is Don Quixote having a happy time—and one always does have a happy time when one goes out with that warrior, the noble and learned Lord, Lord Denning—tilting at a windmill that does not exist and tilting in such a way that by inadvertence we shall be putting our Government in breach of their international obligations. I say with the respect and affection that I have and always will have for the whole of my days for that magnificent entertaining advocate, the noble and learned Lord, Lord Denning, that his amendment is a bag of delightful and comic nonsense.
§ Lord Harmar-Nicholls
The noble and learned Lords, Lord Scarman and Lord Denning, can continue their debate on the technicalities of the law and the words that should be used, and may the best man win. I wanted to come in because I believe that the amendment is vital and good and should be accepted. This amendment is not a windmill, as the noble and learned Lord, Lord Scarman, suggested it was. It is much more important than the technicalities of the law and the argument about what words should be used. The minute that the people of this country think that the United Kingdom courts are not supreme as regards matters that happen within the United Kingdom, then I believe that we risk weakening ordinary people's acceptance of Parliament with all its statutes. I believe that there is a risk of that happening.
For five years, I sat as a Member of the European Parliament. While the Treaty of Rome has nothing to do with this amendment, it gave one closer contact to the general reaction of how law, applying to this country, but applied by a court outside this country's boundaries, was being accepted. There is a reaction. I found that the acceptance by ordinary people of a decision from a European court was unpalatable, particularly on matters such as those outlined by the noble and learned Lord, Lord Denning; matters which were very human and day-to-day in their application. The fact is that the final word on getting justice from a court which does not reside inside this country's boundaries is not accepted deep down. The more that the people become aware of that, the more it will show itself in a form, more fundamental, such as not accepting laws at all. I believe that the message this amendment would give would go a long way towards removing some of these feelings that are begining to show themselves.
I found that many people who were very "pro", for example, the Treaty of Rome and joining the Euroean Community now have many doubts, and their doubts have nothing whatever to do with the actual working of the European Commission, the Council of Ministers and the European Parliament. They feel that 1108 matters which are their personal concern are not being finally dealt with by their own courts and judges inside their own country.
I do not agree with the noble and learned Lord, Lord Silkin. I believe that it would be quite possible and desirable to accept the convention, but allow the interpretation arising from it to be in our judges' hands. For that reason, I do not look upon this amendment as tilting at absent windmills. I believe that it is very far-seeing and likely to call a halt to a trend that may eventually upset many of the wider decisions on international matters that the country has to make.
When my noble friend Lord Broxbourne intervened earlier, he gave the impression that he put the amendment of the noble and learned Lord, Lord Denning, on one extreme, the noble and learned Lord, Lord Scarman, on the other, and that he was coming in the middle. I hope that he will come down on the side of this amendment. I would not presume to enter into the technicalities, but I believe that the message that flows from the amendment is much more valuable and important than perhaps the comments that we have so far heard about it have led us to believe.
§ 7.45 p.m.
§ Lord Broxbourne
When the merits of the amendment are put forward in such attractive speeches as those of the noble and learned Lord, Lord Denning, and my noble friend Lord Harmar-Nicholls, it is indeed difficult to withold one's acquiescence with what they say. I always like to agree with my noble friend Lord Harmar-Nicholls because I know the extent of his experience both in Westminster and in the European Parliament and the great contribution that he makes. He says that he would like the Committee to accept the amendment because he wants to give the interpretation of these matters to the British courts, but that is exactly what the Bill is doing.
The amendment of the noble and learned Lord, Lord Denning, goes further than that. It would exclude the right of petition and the jurisdiction of the court altogether. My noble friend Lord Harmar-Nicholls said that he would not go into the technicalities of these matters, but the word "technicalities" is perhaps not a very precise description. These are not technicalities; they are treaty commitments, binding in law and faith. The first part of the amendment, the new subsection (4) of Clause 3, appears to be declaratory. I have no objection to that. Subsection (5), which does away with the right of petition and the jurisdiction of the European Court, raises different and substantial questions.
If we had not, under Article 25 of the convention, made a declaration accepting and renewing the right of individual petition, there would be no impediment to the amendment, irrespective of whether it is desirable. I am sure that the noble and learned Lord will readily agree that we must take the matter rebus sic stantibus. It is only within the past few months that the Government have renewed this right of petition and, therefore as I understand it, we cannot lawfully do away with the right of petition within the specific period identified in Article 25. In this case it is five years.
1109 Meanwhile, we have undertaken under the terms of Article 25 not to hinder in any way the effective exercise of that right. I am sure that the noble and learned Lord will agree that the amendment would clearly be in breach of that provision and Article 46. I would ask the noble and learned Lord and the Committee whether it is not a better approach to rely upon the common sense of the citizens to prefer the simpler, quicker and cheaper remedy of access to the British courts, rather than the complex and cumbersome procedure of petition, and thereby allow the petition to Strasbourg to fall into natural desuetude without any violation of our treaty commitments. As the Committee knows, there are formidable and practical difficulties in petitioning Strasbourg.
Why should any sensible citizen embark on a course that is costly, complex and cumbersome when he has the quicker, cheaper and more effective remedy to hand at home, as he would have under this Bill? In the famous phrase of a very distinguished noble learned Lord, who is credibly understood in his personal capacity to be not unfavourable to this Bill, the citizen would indeed be honkers if he took that course.
I hope that the noble and learned Lord, despite the attractive support he has had from my noble friend Lord Harmar-Nicholls, will think on reflection that we can place reliance on the sense of the citizen to prefer the jurisdiction of our courts, as given by the Bill, without it being necessary to exclude, in breach of our commitment, rights to go to Strasbourg.
§ Lord Denning
I should like to make a few comments. First, it must be remembered that when the Government extended the time and allowed a petition to the European Court of Human Rights, it was not part of our law. What we are doing by this Bill is to make it part of our law and any violation could be enforced in our own courts. The Government have no power to take away our liberty or our sovereignty. It is the power of treaty which commits us to that. That is what they have done. But they did it at a time when there was no remedy in the English courts for many of the violations and when it was not part of our law.
What I am suggesting here is that once we make it part of our law, and once a person can get full redress in our courts for any violation of the Convention on Human Rights, there is no need whatever to retain this petition to the court, which, incidentally, has gone wrong several times, in the opinion of our English judge sitting there. There is no need whatever to preserve that executive step when the matter is considered by Parliament, and when we make the whole violation of rights subject to our own courts. So there it is. We have these differences of opinion between the lawyers. I do not know what to do about the amendment. May I have some help? Is it worthwhile having a Division?
§ On Question, amendment negatived.
§ Clause 3 agreed to.1110
§ Clause 4 [Effect on enactments]:
§ Lord Lloyd of Hampstead moved Amendment No. 8:
Page 2, line 35, leave out subsection (2) and insert—
("(2) 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 such a construction is unavoidable if effect is to be given to that provision and to the other provisions of the Act.").
§ The noble Lord said: In moving this amendment, I venture to draw your Lordships' attention to the fact that my noble friend Lord Allen of Abbeydale, whose name is also to this amendment, has asked me to say that, owing to a prior engagement which he could not possibly defer, he is unfortunately unable to be here himself this evening. But he wishes the Committee to know that he is strongly in favour of the amendment in question.
§ The other point that I venture to make, which is of a general character, is that a number of amendments that have been moved so far have been described as being in the nature of wrecking amendments. I indicated on the Second Reading of this Bill and on a number of previous occasions, that I object very strongly to the principle of this Bill, but I am not seeking in any way to rehearse all those arguments which were dealt with at length on Second Reading in relation to this amendment.
§ This amendment has the sole object of attempting to bring the Bill into line, as I venture to see it, with the correct constitutional position. My submission to your Lordships is that Clause 4(2) of this Bill is contrary to the constitutional position, and therefore it would be highly unsatisfactory if it were embodied into the Bill itself.
§ As the Committee has seen, Clause 4 purports to deal with two situations. First, there is the effect of this Bill on legislation already in existence. Then it directs its attention to its effect on enactments which are passed after the passing of this Bill. What it purports to do, as I see it, is to provide a rule of construction for the court in each of those cases. As regards previous legislation, that is to be treated as always subject to the fundamental rights in the Bill. If that earlier legislation is contrary to the fundamental rights in the Bill, then this Bill when it becomes an Act will override those contrary provisions.
§ As I said, I regard that provision as in itself undesirable, but I am not proposing to raise that point or the arguments in the context of this amendment. What I am concentrating on in this amendment is the purported effect of the Bill on subsequent legislation. What the Bill states is that a later Act is to be subject to the present Bill unless that subsequent Act expressly directs that the present Bill shall not apply.
§ What then is this Bill seeking to achieve? It seems to me that it is an attempt to entrench this so-called Bill of Rights. A subsequent Act is only to be overridden by an express provision to that effect. The court would thus be obliged to declare a subsequent Act of no effect in the absence of an express provision that the Bill was not to apply. I suggest to your Lordships that this just will not do, because it flies in the teeth of a well-established constitutional principle; that is, that one 1111 Parliament cannot by its own Act of Parliament bind a subsequent Parliament.
§ This follows from the basic principle of our unwritten constitution, which is enshrined in the doctrine of parliamentary sovereignty. That doctrine requires that any existing legislation, including such a Bill as the present one, must yield to subsequent legislation, and Clause 4(2) as now expressed is inconsistent with that doctrine. It is inconsistent because it proceeds on the assumption that, though the Bill of Rights cannot protect itself against being expressly overridden by a later Act, it is not to be overridden by implication.
§ What the framers of this Bill hope to achieve, as I understand it, is entrenchment in practice, because they have in effect created an unrealistic scenario. The scenario is based on the thought that no subsequent Parliament can be expected to declare expressly that its legislation is intended deliberately to contravene a provision embodying the terms of an international treaty to which the United Kingdom has acceded. The result of this will be to leave us in a highly confused constitutional situation which could only serve to place an English court in an unacceptable position and, at the same time, it would create great uncertainty in the minds of lawyers and litigants alike.
§ 8 p.m.
§ The whole question of entrenchment and its limits under our constitution was fully explored by the Select Committee of your Lordships' House which reported in 1978. That committee, as your Lordships know, was not unanimous on the basic issue of the merits of a Bill of Rights. But it accepted unanimously the conclusion expressed by our then specialist adviser, who was no less a person than the very distinguished counsel to our Chairman of Committees, Mr. David Rippengal. His conclusions were set out in a detailed memorandum in the minutes of evidence attached to our report, which your Lordships will find on pages 1 to 10. The matter was also fully discussed on pages 22 to 30 of the report itself.
Perhaps I may quote from the actual report. It states:
There is no way in which a Bill of Rights could protect itself from encroachment, whether experessed or implied, by later Acts".
On a note to page 22 it is stated that the specialist advisers's paper received general support from the Law Lords who gave evidence to the Committee and also from the noble and learned Lord, Lord Wilberforce, in a letter addressed to the committee. I can tell your Lordships that the noble and learned Lord, Lord Wilberforce, who was present at the beginning of the Committee stage, told me that unfortunately he was unable to stay, but he intimated to me and authorised me to tell the Committee that he still adhered to the opinion that he expressed in that letter to the Select Committee.
§ There is one further point of which I must endeavour to dispose. It has been suggested—indeed I think it was suggested on the Second Reading of this Bill—that in some way the European Communities Act 1972 provides support for the proposition that a Bill of Rights can effectively control a later Act. 1112 Reliance is placed, of course, on the crucial section in that Act, Section 2(4). This argument was again fully discussed and rejected in the report. The unanimous conclusion was reached that that Act provides no precedent for what is sought to be achieved by the sort of provision in the present Clause 4 of the Bill.
The matter is a somewhat complicated one. The Committee will not wish me to go into the details at this time. The gist of the matter is that even if it were ultimately held—it has not so far been held by our courts after the European Communities Act has been in existence for some 14 years—that the 1972 Act could and does produce the result of controlling future enactments of our own Parliament subsequent to the 1972 Act, this could be on only one basis: namely, that by our accession to the Treaty of Rome—and here I quote from the report—
a structural change had been effected in our constitution, given that we had become part of an international community having its own legislative, executive and judicial organs".
The report adds:
The same could not be said of a Bill falling within the committee's remit".
§ My amendment is aimed solely at bringing the present Bill into line with the established constitutional position. I indicated on Second Reading that I oppose the principles of this Bill but I am not restating them now. For that reason I have not sought in this amendment to interfere with or delete Clause 4(1) but only Clause 4(2). I understand from the Marshalled List that the noble and learned Lord, Lord Denning, is seeking to delete the whole of Clause 4.
§ Lord Scarman
The noble and learned Lord, Lord Denning, has had to leave. He has authorised me to say that he does not intend to move any of the subsequent matters on the Marshalled List. Now, unless somebody else moves, we are left with the noble Lord's amendment to Clause 4(2).
§ Lord Lloyd of Hampstead
I am very much obliged to the noble and learned Lord, who has saved me from making what is now an otiose observation. I do not need to refer further to that. I hope I have clarified the limited objective of my amendment. I beg to move.
§ Lord Scarman
I find myself in agreement with much that has been said by the noble Lord, Lord Lloyd of Hampstead, on his amendment. Perhaps I may say at once that I accept the basic principles of our constitution as described in the report of your Lordships' Select Committee on a Bill of Rights. The question therefore has to be whether Clause 4(2)—Clause 4(1) is quite unexceptionable—is an infringement of the principle of our constitution—the legislative sovereignty of Parliament—or whether it is merely an interpretive provision.
There is no doubt that Parliament can legislate giving directions to the courts as to the way in which they will exercise their function of interpreting statutes. As the noble and learned Lord the Lord Chancellor said in evidence to the Select Committee, a good illustration of that is the Interpretation Act itself. I would be prepared to argue—but the hour is late and I do not think the matter is of sufficient importance—that Clause 4(2) as it stands in the Bill is 1113 interpretation and not a breach of the constitution. However, I follow the points made by the noble Lord, Lord Lloyd of Hampstead. I happen to be perfectly content myself with subsection (2) which the noble Lord's amendment suggests should take its place. Therefore I say no more than that I leave this to the good sense of the Committee. The safe way forward undoubtedly is the way suggested in this amendment; the bold way forward is as suggested in the Bill. I prefer the bold way but I am prepared to be knocked on the head.
§ Lord Broxbourne
In the language of the courts, I respectfully adopt the argument of the noble and learned Lord, Lord Scarman. I too appreciate the purpose behind this amendment and sympathise with it—the preservation of the sovereignty of Parliament and the avoidance of entrenchment. As the noble Lord, Lord Lloyd of Hampstead, will know, I sought to make clear at Second Reading that this was the intention behind the drafting of this clause. I said:Subsequent legislation will be subject to the implication that nothing is required to be done which would infringe any fundamental rights and freedoms, unless the subsequent legislation expressly excludes this provision. Of course this is necessary to preserve our constitutional principle that Parliament cannot bind its successors, but the provision as drafted will guard against any inadvertent conflict with the rights and remedies prescribed in the Bill".—[Official Report, 10/12/85; col. 158.]I yield to nobody in this Committee in my respect and affection for the principle of the sovereignty of Parliament. After all, I have been elected a Member of Parliament in many elections, and I had something to say on the question of the sovereignty of Parliament in our debates on what became the European Communities Act.
The noble Lord will appreciate that the sovereignty of Parliament has in fact been changed, for better or for worse, by our adherence to the European Community—not least because, by that act, we accepted the provisions of Article 189 of the Treaty of Rome, whereby the regulations of the Community take direct effect in this country. They take direct effect whatever the Parliament at Westminster may say. We are therefore in a somewhat different situation from that of 1972, although I do not for a moment seek to diminish the principle and its importance.
On balance—and like the noble and learned Lord Lord Scarman—I prefer the wording of the Bill as drafted to that of the amendment. I find the words in the amendment,unless such a construction is unavoidableto be difficult of interpretation. They would certainly impose a considerable burden on the judges and give very wide scope for judicial interpretation—which is, perhaps, a little ironic, because one of the main criticisms voiced of the Bill on Second Reading was that it would tend to increase the power of the judges.
While being very grateful to the noble Lord for the clarity and cogency with which he has expressed his views, I ask him not to press his amendment but to accept the wording of the Bill as it stands.
§ Lord Silkin of Dulwich
I agree with the arguments put forward by the noble Lord, Lord Lloyd of 1114 Hampstead, and would not intervene at this late hour but for one point that needs to be considered in any amendment of Clause 4(2) as it stands at present. Subsection (2) begins with the words:Any enactment made or passedand so on, and an enactment is defined as including,any Order in Council or instrument made under any enactment".The proposed new subsection begins with the words,No provision of an Act passed".It goes on to refer to that Act as possibly,conferring power to make any subordinate instrument",but it does not apply directly, so far as I can see, to subordinate instruments themselves. I wonder therefore whether it would not be desirable, in view of what has been said by other Members of the Committee, to leave that point in abeyance; accept the principle of what has been said by the noble Lord and hope that between now and Report stage, an acceptable version can be agreed.
§ Lord Broxbourne
I certainly give an undertaking to study most closely what has been said by the noble and learned Lord. There is in the interpretation in Clause 1 the definition that enactment,includes any Order in Council or instrument made under any enactment".Those are wide words and I would have thought that they were wide enough to cover the subordinate instruments to which the amendment expressly refers, without the necessity of incorporating the words in the amendment itself. Of course I shall look sympathetically, and I hope intelligently, so far as I am able, at what has been said. If we come to the conclusion by Report stage that the wording can be improved, I shall of course be very happy to put down an amendment at that stage.
§ Lord Lloyd of Hampstead
I should like to express thanks for the generous treatment that has been accorded to my amendment by the noble and learned Lord, Lord Scarman. The only comment I would venture on his suggestion that it might be treated as a mere clause of interpretation is that it seems to me, with all deference, to be inappropriate—not to use a stronger word—to have a rule of interpretation in a statute that appears to run counter to the established constitutional principle that an Act of Parliament by one Parliament shall not bind a successor Parliament. It therefore seems to me far more appropriate that the proposed change should be made.
As regards the point raised by the noble and learned Lord, Lord Silkin, I venture to think that it was completely answered most helpfully by the noble Lord, Lord Broxbourne, when he pointed out that the definition appears to cover the difficulty envisaged by the noble Lord, Lord Silkin.
The noble Lord, Lord Broxbourne, has in effect invited me to withdraw the amendment on the basis that he will consider very carefully whether to insert a clause on the lines of the draft that we have put forward. I confess that I do not find that entirely satisfactory. If the noble Lord were to undertake to propose a clause on the lines I have suggested, with any 1115 adjustment of wording that might be found necessary after closer scrutiny of the wording of the clause, then I would be happy to withdraw Amendment No. 8. However, if the noble Lord does not feel that he can go that far, then I would like at least to hear whether the Committee is content or not content with the amendment that I have ventured to put before it.
§ Lord Broxbourne
I do not feel that I can go any further at this moment. I must say to the noble Lord that I am a little disappointed with his reaction to what I thought was a reasonable and perhaps even a generous offer on my part. I shall of course study the whole question. I shall study the noble Lord's speech and the possibilities. If it seems as a result, and after taking consultation where I can, that we can improve the Bill on the lines of the noble Lord's amendment, or indeed in any other way, then I will be very happy to put down an amendment to that effect.
I assure the noble Lord that I have no obstinate pride of draftsmanship or copyright in these matters. I am only anxious to get a good and workable enactment on the statute book. I hope that the noble Lord, with that assurance and explanation, will see fit to withdraw the amendment.
§ Lord Lloyd of Hampstead
I have no desire to weary your Lordships with a vote at this time of the evening—particularly after the very fair discussion that we have enjoyed on this particular amendment. I am prepared to withdraw the amendment now, but I reserve my right to reintroduce it on Report if the noble Lord, Lord Broxbourne, forms the view, after further consideration, that he is unable to reintroduce the amendment in a verbally-modified form, on that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clause 5 agreed to.
§ Clause 6 [Proof of Convention instruments, etc]:
Lord Campbell of Alloway had given notice of his intention to move Amendment No. 9:
Page 3, line 12, leave out ("Protocols") and insert ("Protocol as defined in section 1(2) of this Act").
§ Lord Broxbourne
My noble friend Lord Campbell of Alloway has had to leave the Committee, and so we are denied his assistance in what remains of this discussion. I am very grateful to him for the help that he had given hitherto. He asked me to say that he will not be moving this amendment. Indeed, he will not be moving any other amendment which stands in his name. On this amendment, Amendment No. 9, my noble friend has given me a short note as to the basis of it which I shall certainly study with care between now and Report. On his behalf, therefore, if I am in order in doing so, I confirm that this amendment is not moved.
§ [Amendment No. 9 not moved.]
§ Clause 6 agreed to.
§ Clause 7 agreed to.
§ [Amendment No. 10 not moved.]1116
§ Remaining clauses agreed to.
§ [Amendment No. 11 not moved.]
§ Schedules agreed to.
§ House resumed: Bill reported without amendment.