§ 2.55 p.m.
§ Lord Broxbourne rose to call attention to the five judgments of the European Court of Human Rights on 9th July in favour of British citizens and the case for reducing delay in securing justice by giving jurisdiction to British courts to decide on alleged contraventions of the European Convention on Human Rights: and to move for Papers.
§ The noble Lord said: My Lords, I beg leave to move the Motion standing in my name.
§ We are having a varied day all the way from pelicans to human rights. We had some very agreeable exchanges on pelicans and it may well be that many noble Lords would prefer to pursue that subject rather than embark on the subject of human rights. No doubt we could have a very interesting session on the mating habits of pelicans. I almost feel that Gerald Durrell might be offered a life peerage in order to come and take part in our exchanges! But except to extreme aficionados of natural life, human rights are probably more important, even if less fun than the mating habits of pelicans.
§ The timing of this debate is obviously fortuitous since it results from my unexpected success in the ballot. On the other hand, I think it is appropriate, coincidentally rather than causatively, that it is almost two years to the day since I had the privilege of moving the Second Reading of the Human Rights and Fundamental Freedoms Bill. This Bill, as your Lordships may recall, passed through this House in all its stages only to fail in another place on a procedural technicality. But as some compensation for that natural disappointment, we had here a most impressive degree of support from eminent noble Lords, pillars of church and law, the right reverend Prelate, the Lord Bishop of Oxford, and the noble and learned Lord, Lord Scarman, from the Cross-Benches.
§ It is appropriate that the matter should now be re-opened in the new Parliament where there is reason to believe that there is a majority, certainly in the other House and I think in this House, in favour of this measure. It is also appropriate since the courts gave judgment on 8th July in five cases adverse to Her Majesty's Government in the context of child care.
§ I shall not rehearse the content of the Bill. It is printed. I shall devote my speech to four matters as briefly as is compatible with clarity, your Lordships will be glad to hear: the purpose of the Bill; the United Kingdom's connection with the European Convention on Human Rights; the jurisdiction of the European Court and last but not least certain misapprehensions in regard to this matter which became apparent in the course of the Second Reading debate.
The purpose of the Bill, as your Lordships can see from the Long Title, is to provide protection in the
courts of the United Kingdom for the rights and freedoms specified in the European convention for the protection of human rights and fundamental freedom to which the United Kingdom is a party. That is an important but a limited objective. This is not a bill of rights in the accepted sense of the words, substituting a written constitution for accepted constitutional practices. I said in the course of the Second Reading debate on the Bill:
Its aim is to ensure as nearly as possible, while respecting our constitutional doctrine of the sovereignty of Parliament, that the observance of human rights and the existence of indigenous remedies are securely based in British law."—[Official Report, 10/12/85; col. 158].
Can anyone be against such an aim? Can anyone wish to deny the British citizens the most effective protection for their human rights? Can anyone doubt our obligation to observe the provisions to which we adhere on human rights? If so, no doubt they will stand up and be counted. No one. So there is an agreeable degree of unanimity. Certainly I carry my noble and learned friend Lord Scarman with me, which is not altogether unexpected.
§ This country has a long and honourable connection with the convention. In fact the drafting of it was supervised, in his capacity as the then chairman of the Legal Committee of the Council of Europe, by Sir David Maxwell Fyfe, known later in this House as Lord Kilmuir—an old and valued friend of mine through the decades and a most eminent lawyer and parliamentarian. Unfortunately, that promising start has been marred by the progress of events, marred by the number of breaches of the convention by the Government here—not this Government but the Government for the time being—which has led to these adverse decisions in the European Court.
§ I am not going to attempt a statistical evaluation of Britain's place in the league table in regard to these adverse decisions; certainly it is higher than most countries. It may be that it is higher than any other, though there again it is fair to remember that this is the less surprising because those countries have had the wisdom to incorporate the convention into their domestic law in the way that my Bill proposes to do for this country. Nevertheless it is a sad record and one which enables the accusatory finger to be pointed at us.
The range of rights found to have been violated is wide. In the words of that eminent authority Anthony Lester QC,
the list of British cases is long, controversial and far-reaching.
Among others, there is telephone tapping, immigration and passport rights, prison conditions, detention of mental patients, the closed shop, nationalisation without adequate compensation, freedom of expression—your Lordships will remember the thalidomide case—child care and access. My noble friend behind me, with characteristic kindness, has undertaken to give me an occasional refresher, which I much appreciate, though I am bound to say that the word does not carry the agreeable connotations that it used to carry in the course of professional practice. I see that noble and learned Lords opposite take the same point.
These are all matters which have touched nearly the lives of the citizen.
Of course the court found in favour of the aggrieved citizens, but the road to Strasbourg has proved a long and difficult one. In the words of the Economist,
The process of appealing to Strasbourg is expensive, cumbersome and appallingly long-winded. All domestic remedies must be exhausted, which may mean taking the case right up to the House of Lords; then the European appeal can take as long as eight years. The child who is caned at school without his parents' consent could by then be spanking his own toddlers, and the prisoner who was denied basic rights in gaol will probably long since have been released".
§ The case for this limited but important measure is so strong as to be virtually unanswerable, and in fact the answers to it are based mainly on misconceptions. I define four basic misconceptions which appeared in our debates: that opposition to the Bill can alter the convention; the alleged threat to the sovereignty of Parliament; the generalised language of the convention, it is said, is unsuited to British statute law; and, finally, the alleged imposition of a Continental pattern on British law.
§ As to the first of those matters, many criticisms during the passage of the Bill were in fact criticisms of the convention itself rather than of the limited purpose and content of the Bill. As to the sovereignty of Parliament—and there was much play with this during the debate—I am bound to say that I felt a certain sense of irony at this charge being levelled against me.
§ It was not so many years ago when I was charged with an out-of-date attraction to this concept in the arguments about the Treaty of Rome. I was out of date, they said. I must move into the modern world. I must come to terms with the limitations on sovereignty. But those were very real limitations on sovereignty. Article 189 of the Treaty of Rome enacts that regulations of the Community shall take direct effect in the member states and be binding upon them. That is a real and substantial diminution of parliamentary sovereignty to which now we are bound in law and faith by our solemn adherence to the Treaty of Rome.
There is no such parallel here with this human rights Bill. On the contrary, subsection (2) of Clause 4 gives Parliament power to exclude compliance in subsequent legislation where it is necessary so to do to give effect to that legislation. As I said on Second Reading,
this is necessary to preserve our constitutional principle that Parliament cannot bind its successors".—[Official Report, 10/12/85; col. 158.]
I am sure that any Parliament would think very carefully before such excluding legislation, but it is clear that it can be achieved, thus ensuring that there is no infringement of the sovereignty of Parliament.
§ Then as to the generalised language of the convention, that criticism reflects the first basic misconception in that it is a criticism of the wording of the convention itself, to whose provisions we are in any event bound to give effect by our treaty commitments. International obligations, and especially those concerning rights, are normally expressed in generalised language. They are in 728 positive terms, whereas prohibitions are in negative and restrictive terms.
The contrast can be seen in the wording of the Ten Commandments as compared with the Sermon on the Mount. I am glad to see that the right reverend Prelate appreciates the point, as I expected he would. The wording of the Ten Commandments is precise and negative, "Thou shalt not kill" etc.; the wording of the Sermon on the Mount is affirmative and general:
Ask and it shall be given you; seek and ye shall find: knock and it shall be opened to you".
But who would say that the Sermon on the Mount is less authoritative or less happily expressed than the Ten Commandments?
On the last point, it is said that enactment of the Bill would impose a Continental pattern on our judicial processes. I believe the exact opposite to be true. It would in fact enable British judges to make a contribution to the thinking and jurisprudence on human rights—an opportunity at present denied save on the occasions when there is a British case giving a minority representation of one British judge on the court. There would be a significant benefit not only to the United Kingdom but to Europe and the convention as well. As my noble and learned friend Lord Scarman said,
At present, by merely a self-denying ordinance, our judges have no part in the interpretation or application of the convention. We are almost alone in that among the 20 signatories to the European convention … How valuable it would be for the skills and legal wisdom of our judges to be involved in interpreting and applying this convention where it takes effect within their jurisdiction".— [col. 163.]
I respectfully adopt every syllable of that statement.
§ In conclusion I make this submission. Opposition to this Bill and to the principle of incorporation is based largely on misconceptions of what is proposed. What is proposed will promote the rights and well being of the citizen without detriment to government. It will reinforce the protection of human rights and strengthen the position of our courts in conformity with our constitutional principles and practices. It will do much good and impose no detriment. To date, apart from hints and suggestions in the media, we have no real information as to the reason why the Government wish to block this useful and important measure. Perhaps it is a case of willing to wound but afraid to strike. Let them now in this debate at any rate come clean and put their cards on the table. If they have objections to make we shall try to meet them in debate. If they have improvements to suggest we shall certainly incorporate them in the Bill.
§ Let us then co-operate in diligent study and constructive endeavour. That is my hope; it is my belief and I am confident that it should be so. In that sure hope, in that firm belief and in that abiding conviction I beg to move for Papers.
§ 3.10 p.m.
§ Lord McGregor of Durris
My Lords, anyone who has followed the debate on the desirability of assimilating the European Convention on Human Rights into our domestic law knows that there are weighty arguments—political, legal and moral—on both sides. If he be a layman, he will speak with 729 trepidation on a subject about which lawyers, equally learned and equally devoted to the law as an instrument of social betterment, disagree completely.
Nevertheless, the lay voice should be heard more often, I believe, than it is, because what is essentially an issue of the best legal techniques and procedures for achieving agreed social ends should not be permitted to become a mystery on which only lawyers pronounce. Moreover, what has to be decided is not, I think, all that difficult to understand; so I shall begin with some general points of concern to many lay people.
The past 30 years have experienced an astonishing proliferation of legal safeguards for individual rights which previously in most countries had been no more than aspirations. In 1950 the only binding treaty which mentioned human rights was the United Nations Charter. Today, there are three global treaties, four regional treaties and two declarations of rights. Moreover, this revolutionary code of international law is not merely hortatory. In Europe, in the aftermath of Hitler's war and the brutal destruction of human rights during part of the interwar years, 21 sovereign states established a Commission and a Court of Human Rights for enforcing the rights guaranteed by the convention of 1952. They thereby relinquished the power to treat their own citizens as they choose.
Those two institutions have so far handled more than 10,000 complaints, mostly from individuals against their governments. Member states have been compelled to rewrite some of their municipal laws, to change their administrative procedures and to compensate their own citizens when they have been held in breach of the convention. In the same way the American Convention on Human Rights is enforced by an Inter-American Commission and a Court of Human Rights set up by the Organisation of American States. Now, 17 independent nations—although not the United States—are party to this structure. The latest of the regional treaties, the African Charter on Human and Peoples' Rights was adopted six years ago but has not yet been implemented and is not likely to be implemented for a long time. Thus what used to be the unenforceable natural rights of eighteenth century rhetoric are being endowed with legal sanctions and an effective machinery of enforcement across national frontiers, at least in some parts of the world. Many regard these conventions on human rights as one of the most remarkable features of recent history, a triumph for reason, co-operation and internationalism.
An extension of moral obligation which is backed by legal sanctions and treats as one group the 400 million inhabitants of the nation states which have adhered to the European convention is indeed a turning point in the history of freedom and a defeat for the peevish nationalism which has been responsible for so much evil.
Similarly, the American convention now draws more than 200 million people into a similar group. I am proud that this country played a main part in framing the European convention and I am glad that we have bound ourselves to it by treaty. In that sense 730 therefore it is part of our law already; so it is pointless to argue about a decision which we took many years ago. What we are now discussing is how to draw out the implications of that decision. One obvious method is to enable British citizens aggrieved by the exercise of powers by a public authority allegedly in breach of the convention to seek remedies in British courts from British judges.
A main argument against this during the debate on the Bill of the noble Lord, Lord Broxbourne, on human rights and fundamental freedoms in your Lordships' House two years ago was the risk of bringing judges more and more into politics and engaging them on decisions that would be regarded as political by requiring them to interpret and apply the European convention. That was the view of the noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Lloyd of Hampstead and Lord Allen of Abbeydale.
One of my major concerns is the safeguarding of freedom of expression, particularly in the case of the press. Unhappily, there have been too many opportunities recently to read judgments by English judges which involve the circumstances in which this right may be exercised or ought to be denied. By bringing judges into politics I assume that what is meant is that they would be required by Article 10 of the convention to adjudicate upon issues of public policy. They do not seem, at any rate to this layman, to be strangers to such issues of public policy. If that is the case, the fear must stem from some highly metaphysical definition of public policy and of politics because we are not talking about party or partisan politics.
In that debate it was also said that the words of the convention were vague, indefinite and too general and that they would have to be decided by judges in terms only of the policies underlying them. As in all political theories of rights, the convention sets out the restrictions on rights. In the instance that I am discussing, the restriction was on the right of freedom of expression. But they include national security, the prevention of disorder and crime and the protection of health and morals. A respondent state must establish before the court that any restriction which it has imposed was prescribed by law and is also necessary in a democratic society.
The European Court of Human Rights has laid down that a state must satisfy the tests of whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient. An additional consideration will be the breadth of the restriction on freedom of expression because the greater the breadth, the closer will be the court's scrutiny of the measure.
The line separating permissible expression from governmentally imposed censorship cannot be drawn in accordance with the formula derived either from the common law or the European convention. It must require adjudication on public policy. But the very existence of the convention demonstrates that there is a consensus among member states about the limits of restrictions upon freedom of expression. The 731 European court held in 1975 that freedom of expression is one of the basic conditions for the progress of a democratic society, which cannot exist without pluralism, tolerance and broadmindedness. The institutions of the Council of Europe act upon that presumption, vague though it may be. Further, the protection of the court is not restricted to political, philosophical, religious or social expression but extends also to commerical speech—for example, in the form of advertising.
In that inevitably political area, I cannot interpret the convention as imposing greater political duties upon our judges than now rest upon them in the course of developing a jurisprudence of confidentiality. We are already committed to the convention and it is high time that we had it applied in our courts by our own judges.
§ 3.25 p.m.
§ Lord Lloyd of Hampstead
My Lords, the subject of the Convention on Human Rights has been debated on numerous occasions in your Lordships' House since the noble Lord, Lord Wade. introduced his Bill in 1976. One can only admire the pertinacity with which the topic has repeatedly been rehearsed. However, one cannot but feel that where considerable constitutional changes are contemplated, one would expect the main initiative in the matter to come from the democratically elected House. Strangely enough, the other place appears—except for the recent introduction of Sir Edward Gardner's Bill which failed in the last Parliament—to have had very little interest in the issue. Perhaps it is not without significance that none of the Members of the other place has chosen, under the ballot system, this particular topic as one which he wishes to ventilate in a new Bill.
I remain unrepentant—though there might arguably be some marginal benefit in introducing the convention into our law—in saying that in general the constitutional objections are overwhelming. Those objections have been detailed with remarkable clarity and conviction by the noble and learned Lord, Lord McCluskey in his recently broadcast lectures.
It is not my intention in addressing your Lordships to go into the general arguments. I am bound to say that the noble Lord, Lord Broxbourne, who introduced the debate, ranged widely in his remarks from the Ten Commandments to the natural history of pelicans. He did not appear to pay much attention to the particular cases decided in the court of human rights which, as I understood it, were the subject matter of the debate. On the contrary, I propose to concentrate on those cases and why I believe that they do not advance the argument in any effective way.
Your Lordships have not been told what the subject matter of those cases was. Put shortly, they involved the withdrawal of access of parents to a child previously placed in public care. The court of human rights held that there had been an infringement of Article 8 of the convention, which guarantees respect for family life, and of Article 6, which guarantees that in matters of civil right there shall be an adequate right of appeal.
732 The interesting thing about the cases was that the court of human rights made it absolutely clear that it was not concerned with the merits of the dispute. The two points with which the court was concerned were, first, that there had been a failure to give prior notice of the termination of access to the parents before the resolution was made and, secondly, although the court agreed that there were numerous forms of appeal under our law, that in regard to that particular type of order, there was not a totally adequate appeal.
As your Lordships will see from the cases set out, there are numerous avenues of appeal under our law. One can appeal to a juvenile court and thence to the divisional court and so on. One can institute wardship proceedings in the family court; one can go to a local ombudsman and ask for a judicial review in the High Court. The parents in the cases did have recourse to a great many of those procedures. The various authorities in this country had decided ultimately that the paramount consideration was the welfare of the child and that the decision of the local authority that access should be withdrawn was in the interests of the welfare of the child and therefore should be sustained.
It is said that the matter would have been settled much more expeditiously—or perhaps satisfactorily—if the English courts had been able to apply the convention directly, as would be the case if the convention were adopted as part of our law. But would it have had that effect? The English courts. as was apparent from the course of the cases, were mainly concerned with their statutory duty to have primary regard to the welfare of the child. It is extremely difficult to imagine that the English courts would have reached any other conclusion in the light of the very vague words—I insist, notwithstanding the remarks of the noble Lord. Lord McGregor, that they are exceedingly vague—of Article 6 that there should be a right to respect for family life. That could mean almost anything. How would it have helped if the English courts had been able to apply this resounding principle of respect for family life?
The court of human rights itself made clear that it was not concerned with the merits of the case. All it decided was that there was a lacuna in our law where it concerned the refusal of access to a child by the parents. There were in fact wardship proceedings and a judicial review could have been asked for. The court said that those proceedings were insufficient because in either of those cases the courts would have been unable to explore the merits of the decision.
To fill this lacuna, legislation would be required. Supposing the English court were faced with the decision that, having regard to Article 6, there was a gap in our law. What could it reasonably be expected to do? It could hardly then and there provide a revised procedure of appeal. That is part of the fundamental objection against incorporating this legislation into our law. If one confers that power upon English judges it gives them a legislative role which is one of the fundamental objections to this kind of procedure.
Surely it is for Parliament to decide, first of all, what sort of revision of procedures should be 733 introduced and to introduce that by legislative act. This is not a matter which can be properly dealt with by an instant decision in the course of litigation. No doubt the Minister will tell us about this later, but the Government have issued a White Paper about the matter. There was legislation in 1983 on this point. I am not personally very clear exactly why it is so, and no doubt we shall be told, but the legislation passed in that year was thought to be not fully adequate to meet this gap in our procedures.
What we do not want is to give this kind of issue to our judges to decide and thereby give them a legislative function, and, with respect to the arguments of the noble Lord, Lord McGregor, bring them into the political arena. We have before us the melancholy spectacle of what happens when judges are implicated in this kind of matter. We read of the unfortunate Judge Bork who was rejected as a judge for the American Supreme Court after exhaustive investigations into the background of his political life and opinions and so forth.
It is said that there was delay. And the suggestion was made that in some way we would be better off from that point of view if the convention were incorporated. It is quite true that there was a delay of several months in bringing the matter before the family court. The reason was that there were apparently conflicting jurisdictions in England and nobody could decide exactly which court it should go to. That resulted in a delay of some months.
It is difficult to see what improvement would have resulted if Articles 6 and 8 had been part of our law and the court had applied them. Delays would have occurred just the same. The major delay that occurred was the delay in bringing the matter before the court of human rights; it took several years. The answer is that it is for the court of human rights to put its affairs in order. It is very unfortunate if it takes a very long time to bring a case before that court. What we need, presumably, is political pressure to try to persuade that court to speed up its procedures.
The last point that arises is the question of financial compensation. It was not the issue in this case. Although the parties have reserved their right to claim financial compensation, even by the end of the case they had not formulated exactly what it was. What they would have liked was some kind of order from the court of human rights reversing the resolution of the local authority taking away access. That they could not get from the court of human rights. The court made clear that it was not concerned with the merits of the case. As I have said, if such an order could have been brought about in the English court, it would have involved some kind of new appeal procedure which itself involves litigation.
§ Lord Lloyd of Hampstead
I am sorry; did I use the wrong word? I meant to say legislation. I am much obliged to the noble and learned Lord.
Finally, I suggest two conclusions. The first is that if defects are revealed in our law as a result of the process under the convention, then the proper course 734 is that this matter should be considered by the authorities. If there is a need for the law to be reformed, this should be done in the normal way. It may well be that what these cases mainly reveal is the need for a comprehensive review of the appellate procedure in cases involving parents and their children, possibly with special regard to a matter which has been much discussed recently. That is the question of the role of the family court.
I conclude by suggesting that these cases in no way point to either the need for introducing the convention directly into our law or the desirabilty of embarking upon a constitutional upheaval to achieve that result.
§ 3.37 p.m.
§ Lord Rippon of Hexham
My Lords, making a maiden speech before any assembly is a somewhat daunting experience. However, I have already noticed that your Lordships invariably extend to all speakers a kindness and a courtesy not invariably found in the place from whence I come.
The noble Lord, Lord Jay, in the memorable maiden speech which he made the other day, referred to the governess in Oscar Wilde's "The Importance of Being Earnest", who warned her pupil to avoid the chapter on the Indian rupee as being somewhat exciting for a young girl. This reminded me of the maiden speech of Arthur Balfour in another place which he made in the middle of his third parliamentary session and after very careful consideration. He chose as his topic Indian silver currency precisely because it was not too exciting. He later recalled that he had sought an occasion when no party issue was involved and no Division expected. His criterion for a maiden theme was a question that was undeniably important, intrinsically dull, perhaps with a technical side, and in any case recalcitrant to rhetorical treatment.
The operation of the European Convention on Human Rights seems to me to fulfil most of those provisions. It is a question which is undeniably important although not, I trust, too intrinsically dull—certainly not in the eloquent phraseology of my noble friend Lord Broxbourne. There is only one element that can be regarded as controversial and that is whether or not the convention should be directly incorporated into our domestic law. As to that, by convention I can say little today—perhaps nothing—but I am sure that your Lordships would not wish me to dissent from the speech of my noble friend, who has been my leader on many past occasions in another sphere of activity.
In a real sense the convention is already part of our legal system. It was drafted largely by British lawyers and the British Government were the first to deposit the instrument of ratification in 1951. It is referred to by British judges and has afforded justice to British citizens who have sought the protection of the European Court of Human Rights in Strasbourg. Moreover, the judgments have invariably been respected by successive British Governments.
I believe that the success of the convention and the court over the years is one of the outstanding achievements of the Council of Europe and should he 735 recognised as such. There is no comparable international system for guaranteeing civil and political rights anywhere else in the world. Of course it is not a perfect system, not least because the citizen has a long and costly journey to undertake before a judgment can be obtained. It seems to me that this is clearly illustrated by the five judgments of 8th July of this year. The first of this group of cases was lodged on 15th December 1980 and the last on 28th April 1983. It seems to me that this delay is all the more unacceptable because all the cases involved rights of access to children in care.
As long ago as 1958 the Council of Europe's Committee of Ministers said that it was:of paramount importance that the institutions established by the European Convention of Human Rights remain an effective instrument for ensuring the observance of the engagements which result from it".We are of course, as has already been pointed out, party to all those engagements. To achieve this a review of procedures, as has already been indicated, is clearly essential and the most urgent problem is undoubtedly the length of the proceedings. This was considered by the European Ministerial Conference on Human Rights in Vienna in 1985 at which our Government were represented and which noted that the increasing number and complexity of applications to the court were resulting in a complete congestion of the supervisory organs; in particular, the European Commission on Human Rights. I should like to think that Her Majesty's Government are taking a lead in promoting the remedial action that they have themselves declared to be necessary.
It may be that at the same time we should consider whether the present machinery is adequate to meet the requirements of modern society in the field of human rights in the light of scientific and technical progress in such matters as data protection and biotechnology.
There is sometimes in the public mind on this, and indeed on many issues, a confusion between the Europe of the Twelve and the wider Europe of the Twenty-One to which we are equally committed and to which I do not think we always pay sufficient attention. Many people are opposed to the European Convention on Human Rights because they are under the illusion that it is something to do with the European Community, and they do not like that. In this connection, I believe that one of our purposes should be to strengthen co-operation between the Europe of the Twelve and the Europe of the Twenty-One.
I suggest that we might, when considering the operation of the convention and the judgments which are made from time to time, study ways and means of ensuring that we do not see the emergence of two different and perhaps conflicting sets of case law: that of the European Court of Human Rights and that of the Court of Justice of the European Community on the interpretation of the same rights. This further potential source of conflict, complication, delay and confusion for the citizen might perhaps be avoided if the European communities themselves adhered to the convention.
736 However that may be, what needs to be made clear above all—and I hope it will be done tonight—is that measures to ensure the speedy and effective protection of the human rights of British and other European citizens are unequivocally supported by Her Majesty's Government. I thank your Lordships for your indulgence.
§ 3.45 p.m.
§ Lord Scarman
My Lords, it is a personal delight for me to be the first Member of your Lordships' House to speak after the maiden speech of my noble friend Lord Rippon. I say that not merely because I happen to agree with everything that he has said in his entertaining and forceful speech but because we both come from the same legal stable, Brasenose College, Oxford. Brasenose College, as Balliol is beginning to appreciate, is strongly and wisely represented in your Lordships' House. We lead the Lords Spiritual and now, with the arrival of my noble friend, we are gaining strength among the Lords Temporal. Very soon we shall be the envy of Balliol, New College and Ruskin College!
I have wearied your Lordships' House frequently on the question of the incorporation of the European Convention on Human Rights into British law but the excellence of the speeches of the noble Lord, Lord Broxbourne, and my noble friend Lord Rippon is such that I need not do so again this afternoon, and I have no intention of doing so.
I draw your Lordships' attention to the point that we are debating and I respectfully agree with this one point—and only with this one point—in the speech of the noble Lord, Lord Lloyd of Hampstead. In the limited time available we should try to concentrate on the point of this debate, which is whether it would be wise in the interests of securing justice if we were as a country to give jurisdiction to British courts to decide on alleged contraventions of the European Convention on Human Rights.
It will not surprise your Lordships to know that I am wholly persuaded that we would be wise and would be acting justly if we were to give jurisdiction to the British courts to decide on alleged contraventions of the European convention. I do so for two reasons which I shall develop shortly: first, in justice to the aggrieved citizen who has exhausted his remedies in the United Kingdom but who may well be found. if he gets there, to have established a contravention of the convention by the European Court of Justice in Strasbourg. Secondly, I suggest to your Lordships that it would be good for the health of British law if this jurisdiction was given to our courts and it would assist our Government to comply with their international obligation to secure to everyone within the jurisdiction the protection of the articles of the European Convention which deal with human rights and fundamental freedoms.
My first point is simply this. The European convention imposes obligations upon the United Kingdom—obligations binding in international law. The United Kingdom is internationally bound to see that the European convention is not infringed within the United Kingdom; and the United Kingdom Government are internationally bound to give effect 737 to the rulings of the European Court of Justice where those rulings touch upon or concern the United Kingdom.
Surely our government would be greatly assisted in discharging those very solemn obligations if, by incorporating the European convention into our law, we ensured that before any citizen could go to Strasbourg, before his remedies here were exhausted, our courts, including the highest in the land, have an opportunity to consider the provisions of the convention, interpreting them and applying them. That would not only assist our Government to comply with their international obligations; it would also provide what is at the moment lacking—an input of British reasoning and British legal insight into the development of the jurisprudence of the convention.
I say no more except that we can give our courts this jurisdiction only if we are prepared to legislate along the lines of the Bill introduced in the last Parliament by the noble Lord, Lord Broxbourne. I supported that Bill, as did many other Members of this House, and it passed through all its stages in this House. The noble Lord, Lord Lloyd of Hampstead, seems to think that there is an argument in that it did not get far in the other place. It may have occurred to some latter day observers of the British constitution, when working, that the real shrine for the protection of the liberties of the British peoples is in this House.
Only one question may arise this afternoon, and it is a question of great importance. I think that it will arise because I am followed by a noble and learned Lord who is no neophyte in advocacy, the noble and learned Lord, Lord Denning. The point is this. The noble and learned Lord may say—and I have heard him say it in this House, as other noble Lords may have done—that if we give this jurisdiction to our courts, why bother about going to this provincial court in Strasbourg which is filled with professors who do not understand the English language or our ways. No doubt it is an excellent gathering of central, western and eastern European jurists (the word is) but that is no substitute for the common law judges and common law traditions of the United Kingdom. The argument is that we should get rid of that and its waste of time.
I wholly disagree with that view. I suggest, briefly, that if we give our courts this jurisdiction we should retain the current position which our Government have adopted; namely, recognition of the compulsory jurisdiction of the European Court of Justice and the right of the aggrieved citizen who has exhausted his remedies in this country to petition the European Commission so that in the appropriate case a ruling may be obtained in the European Court of Justice as to the meaning and the effect of the convention.
I refer, first, to justice for the aggrieved citizen. It would be an irony if we were to give our courts this jurisdiction and then deprive the citizen of the only remedy he would have if he remained aggrieved—after a ruling, for instance, in the House of Lords—of going to the one court whose interpretation of the convention is by international law binding on our Government. At the moment a citizen aggrieved by some alleged contravention of 738 the convention in this country can go to Europe and if he obtains a ruling from the European Court of Justice favourable to his case, our Government, to their great credit (as have successive governments to their great credit) give effect to that ruling. They may do it by legislation or by payment of compensation.
A good illustration of that is the phone-tapping case. Our courts, under the common law as it stood, could not give effect to the appropriate articles of the European convention of protecting the privacy of the citizen. On appeal to the European court there was a ruling which, in effect, overruled the decision of the British courts. The ruling said that the phone-tapping complained of in that case was an infringement of the convention. What did our Government do? They passed legislation giving effect to the convention. Are we to deprive our citizens of that merely because our courts now have a chance of an input into the discussions and consideration of the convention?
If we do, this situation may well arise. Our courts will give an interpretation of the European convention against the citizen and that is the end of the matter; but in another country the same question arises and that goes to the European Court of Justice which comes to the conclusion that our courts were wrong. Under existing law our citizen would have had his own remedy—delayed, it is true, but not denied. However, if we withdraw the right of petition, our citizen will have to live under what we could then legitimately say was a wrong decision by our courts as to the meaning and effect of the European convention. It is clear that the situation could be very serious.
I conclude by saying that if the convention was a part of our law, and if our courts had jurisdiction, then in the current litigation between the Government and the newspapers on the publication abroad, of a certain book, our courts would have to take account of the European convention. Our courts would then have to consider whether it was a proper use of the action to remedy a breach of confidence by using it to deal with the newspapers' alleged right to publish that which is in the public domain, that which is no longer a secret.
That issue has to come and under existing law will undoubtedly go to Europe. It will be very serious if it should arise after we have incorporated the European convention, after our courts have been given the jurisdiction, that we say a citizen is now bound by a United Kingdom decision and can no longer have the remedy of going to the European Commission and having his case considered by the European court, which might give a ruling adverse to that of the House of Lords, a ruling which under international law this country would be obliged to follow. It seems that for the health of the law, for the health of the development of Europe in the way that the noble Lord, Lord Rippon, argued and for justice to the individual, which is better given even though delayed, it is better that we should retain the compulsory jurisdiction of the European court and the right of petition. If we do, I strongly support this Motion.
§ 4 p.m.
§ Lord Denning
My Lords, may I add my words of appreciation for the eloquent and entertaining speech of my noble friend Lord Rippon. Of course I am used to all this advocacy in the courts of law. It was eloquent and entertaining then; and I hope we shall have his assistance many times in the future.
I take strong objection to these five judgments now brought before the House for its attention. Only one speaker has referred to them so far; that was my noble friend Lord Lloyd of Hampstead. This so-called court, sitting in Strasbourg, has condemned us. It has condemned our United Kingdom, its Parliament and its social workers as violating human rights. The condemnation is most unjust. I propose to show the House just how that court has gone wrong.
The first mistake it made—a fundamental one—was to say that it was not going into the merits of the case. Surely, when one finds a country like ours guilty of violating human rights, is it not one's first duty to go into the merits before starting to condemn? This court started absolutely wrong by not going into the merits of the case, but I shall now do so.
I have with me the five judgments in those cases. How many of your Lordships have read them? I know that my noble friend Lord Lloyd of Hampstead has done so but none of the rest of your Lordships knows anything about them, so I shall now tell you.
The first of those cases before the European Court of Human Rights, is the case of B v. United Kingdom. Who is B? We do not, in fact, know; "B" is a mother who gave birth to a child in July 1977. However, all through these papers we are not told whether the child was a boy or a girl.
I am glad to tell your Lordships that the child has been with excellent foster parents since the age of 11 months and has now been adopted by those foster parents by order of the Court of Appeal. The child, who is now 10, is no longer the child of "B"; he or she is the child of most excellent foster parents and is their adopted child and, in all, their child and not the child of "B".
Let us consider the merits of the case. The mother was mentally unstable. She had been in mental homes for schizophrenia from time to time. Her husband—she did not last with that husband long—was violent and even before the child was born he was going away from her; after the birth he hardly saw anything of her at all. So much for the mother and the father. No home whatever was provided by that mother or father for the baby.
The mother went into a mother and baby home for a while. But the important point is that five or six months after the baby was born the mother cruelly assaulted the baby. She was taken before the juvenile court where she pleaded guilty, was put on probation and the child was subsequently put into a place of safety by a place of safety order from the court.
After a short time a care order was made and, indeed, after eight months the child was put temporarily with other short-term foster parents. Then, at the age of 11 months, the child was put with these long-term foster parents who have proved to be 740 so good and brought her up so well during all that time.
The point about the case was simply this: the mother said she wanted access to the child during the time when the juvenile court had made the care order. A care order means that in future the child is in the care of the local authority and, therefore, legitimately away from the parents. The child had to be put into care because of the mother's violence and assault.
Therefore the child was in care, under a care order with the foster parents looking after it. During all that time social workers were visiting the child. The mother also visited the child—she had her other men about, and so on—but she did so very erratically, according to the social workers. However, they tried to get all the access they could and the mother went occasionally with the social workers keeping an eye on the case all the time.
Then, when the child was two years and 10 months old they had an important conference—that is, the social workers and all the agencies—as to what was to be done. In May of this year a report was issued, and I would like to read your Lordships part of it, in which it was said that the United Kingdom had violated human rights. This is the statutory social workers' conference, and the report said this:A health visitor from the local clinic would see B after each of these visits to see if the child was at all distressed by the occasions. It was noticed that B became very clinging to the foster mother on the day after each visit, B would wake up in the night after the visit. On the last occasion of access the child soiled its pants on the way home from the Day Nursery. This was the first time this had occurred for many months".So that conference decided that it was not for the good of the child to allow access any more with those instances occurring and therefore there should be no further access.
Accordingly, a few days later, on 18th May, the authority wrote to the mother informing her that future access to the baby would not be permitted. The reason given was that the baby had been showing signs of disturbance following visits by her which had proved unsettling.
What is said against the United Kingdom is that that order was bad. The social workers had said, "We are afraid we cannot allow any further access". It is said that they ought not to have done that unless there had been a hearing before a court of justice or a court of tribunal. It is also said that the court of the United Kingdom—and we are responsible—has violated human rights in giving that direction and refusing further access. I repudiate that suggestion.
Within a month, or a little later, the mother lodged an application to discharge the care order. The mother was challeging the decision then. The court would not allow it. That is an outline of the case. From that time onwards, it has been in the courts of law. I have told the story. The court says that the United Kingdom has violated human rights because it did not give that mother a fair hearing or notice before the decision was made.
If anyone had gone into the merits of the case, they would have seen that there was no violation of human rights. I have shown that the decision was completely wrong and unjust to the United 741 Kingdom. I shall read the article which it is said we have broken. It is as follows:Everyone has the right to respect for his private and family life, his home and his correspondence".That is not a legal proposition; it is a pious moral precept. It is unsuited for determination on a point of law. We do not know what the law on that point is. The Commission claimed that it had established its case. It said that we should not so much look at the article as at the case law.
I would ask the question: family life—what family life? I should have thought that the family life in question was the family life with the foster parents. They are now the legal parents. That is the family life. The court is not saying that family life means a home with the mother (the child never had a home with the mother). The child never had a family to live with except the foster parents. The court says that the family life is the relationship of the mother and child. That is a fine interpretation of the wording of the article.
What does "respect" mean? The court has interpreted that as meaning that every mother has a right of access to her child however harmful that may he to the child. How absurd! This poor mother's visits to her child were harmful to the child. They were disturbing, as the social workers reported. How does the right to respect come into that? The court is completely wrong to elevate that concept into a right. There was argument about that point. It can only be determined by a court of law. The court has gone quite wrong on that.
The court says that we have also broken the article which provides that in the determination of civil rights and obligations of any of the criminal charges against him, every one is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.
The court held that because further access to the mother was refused when the child was two or three, the United Kingdom had broken that article; we should have told the mother that she could go before some court to determine whether she had a right to access. Within a month, she went to court to try to have the care order discharged. She did not succeed. How absurd it is to suggest that we have not given the mother a fair hearing. The United Kingdom has done nothing wrong. It has done nothing against the human rights convention and yet that court over in Strasbourg has held that we have violated human rights.
I denounce that court. I shall not submit to the European Convention on Human Rights. I would not incorporate it into our law. All the articles are much too vague and uncertain to be enforceable in a court of law. They are unsuited to any legislation. As I said, they are just pious moral obligations which any court can interpret in any way and to which it can give its own determination, as the European court has. Do not let us have anything to do with the European Convention on Human Rights.
§ 4.15 p.m.
§ Lord Beloff
My Lords, the noble and learned Lord, Lord Denning, is a little unfair to your Lordships in his assumption that the rest of us have not read the cases. I read them in part because my son was, unfortunately, the losing counsel in those cases on behalf of the United Kingdom Government. However, I also did so for the more general reason that I wanted to look at an area in which the European convention has operated which was not as familiar, perhaps, as the question of press freedom, and so on, to which the other layman to take part in the debate, the noble Lord. Lord McGregor of Durris, referred.
When one looks at the cases, one of my objections to the European convention is reinforced. If we had been told that we could repatriate that convention, as the Canadians repatriated their constitution, and not merely add a British layer to the present progress of cases, I should have been more moved. My objections to it do not relate to the so-called, or perhaps real, misconceptions which were listed by my noble friend Lord Broxbourne. My view is rather different; namely, that any jurisdiction which rests upon the kind of vague language to which the noble Lord, Lord Lloyd of Hampstead, and the noble and learned Lord, Lord Denning, referred, is almost certain at some time to give rise to what I call judicial usurpation; that is, a temptation for courts of law to take over responsibilities which are either those of parliaments, elected local authorities, or administrative agencies charged with action under the laws or by-laws concerned.
I am much moved towards that conclusion by the experience of the United States of America over the past three decades during which time it seems to me that judicial usurpation has been patent. The federal constitution (the division of powers between the Federal Government and the states) has been deliberately overridden in a series of decisions. Some of those decisions no doubt brought about a greater measure of social justice; for instance, for minorities. But some of them, less noted by the advocates of a Bill of Rights, have been damaging. For example, it has been one of the courts' claims that they could intervene in matters of the adjudication of various forms of social benefit and could order, in this case a state or a municipal authority, to do something different. What they might he ordered to do differently would almost certainly involve additional expenditure. The court is not merely claiming to usurp the privileges of the legislature in making law; it is also claiming to usurp the normal privileges of legislatures in raising taxation—because someone, presumably, has then to tax or to impose a rate, or whatever the local system may be, to fulfil the courts' demands. That is a court sitting in Washington, more remote from any state capitals than Strasbourg is from London.
It is this chronicle of judicial usurpation which in the last few years has reached a new height. The very vagueness of the original American Constitution, and the fact that after 200 years it can hardly be expected to cover in detail many important aspects of our lives, has enabled the court to say in a number of 743 judgments that it is not bound either by the text of the constitution or by the intentions of those who wrote that text.
The noble Lord, Lord Lloyd of Hampstead, referred to the hearings about the nomination of Judge Bork to the Supreme Court. I was in the United States throughout the period when those hearings were taking place. It is clear that the main objection to Judge Bork was that he believed, by and large, other things being equal, that the court should be bound by the documents that they were expounding. This was used by a number of pressure groups—who, for one reason or another, disliked the views that they thought he might express if such cases came to court—as a reason to deny him the nomination. That is why objections to the politicisation of the judiciary—which was mentioned and dismissed by the noble Lord, Lord McGregor—would not survive a close examination of the present scene in the United States.
Let me for a moment come back to these cases. They ought to concern us because the question of rights of parents, adoption, access to children and child abuse are issues very much in all our minds at the moment, and rightly so. We have the two notable reports by Mr. Blom-Cooper. We have the proceedings at Cleveland, to which being sub judice, I cannot refer in greater detail. All of these matters taken together probably reveal that we need a general reconsideration of the way in which local authorities, the voluntary agencies, the courts and police working together could devise a system which holds more evenly the balance between the rights—if they are rights—of parents, the interests and the pre-eminent rights of the children concerned, and which at the same time has the confidence of the public. This has been referred to by other noble Lords.
However able and deep a report we may expect from the judge who is conducting the Cleveland inquiry, it is probable that there are no circumstances in which everyone can be wholly satisfied on every case. But if this Parliament acts after due consultation with the various public and private agencies involved, we shall have the satisfaction of knowing that whatever system emerges it will be directly related to the conditions in this country. It will have been brought about by those who are acquainted on the ground with our social system, our system of local government, and our voluntary and other agencies.
I agree with the noble and learned Lord, Lord Denning. To suggest that this can be done by foreign jurists without such intimate acquaintance, however distinguished and learned in the law, seems to me to be a matter at which the imagination boggles. As the noble and learned Lord, Lord Denning, said, the United Kingdom has been accused of violating human rights, not because no form of appeal was available to the allegedly aggrieved parents—in all five cases there was a recourse to various mechanisms of appeal—but because the form of jurisdiction which British law provides did not seem to correspond with what would be the case in a Continental jurisdiction.
744 It seems to me that we, as a house of a parliament are responsible primarily for the good governance of this country. If our international obligations appear to conflict with that then it is our international obligations that should be reviewed, and not our duty to children and parents in this country. I hope if such a Bill is reintroduced, that your Lordships will say what your putative ancestors said to an English king who wished to alter an aspect of family law in the 14th century: nominus leges Angliae mutari.
§ 4.26 p.m.
§ Lord Allen of Abbeydale
My Lords, I agree with those who have expressed admiration for the noble Lord, Lord Broxbourne, for his persistence in raising this important issue in your Lordships' House. But I have to confess that I have been a little surprised at the form the debate has taken. In my simple-minded innocence I had thought that we were going to discuss the Motion on the Order Paper. That raises the question whether what was decided in these five cases bears any relevance to the traditional views which the noble Lord has put before us from time to time. In fact his speech as will be recalled, eloquently defended a Bill which is not before your Lordships' House. It was without reference to the five individual cases.
Later in the debate we had another extremely eloquent plea that we should retain the compulsory jurisdiction of the European Court of Human Rights and the right of access by petitioners from this country, although so far as I know that is not an issue which is in doubt. Traditionally this is an issue which is settled by the Government from time to time without even telling Parliament what they have decided, a matter about which I have complained previously.
It is an agreeable feature of this debate that there are some new voices added to what was tending to become a rather familiar list of contributors. In particular we have that of the noble Lord, Lord Rippon of Hexham. However, a rather less attractive feature of the debate for me has been that it has made me read the five extremely voluminous judgments delivered in the cases referred to in the Motion. It may be good for me to have seen how the Strasbourg court conducts its business. I take it that the noble Lord who introduced the debate has read the cases. That is not a matter on which he saw fit to enlighten us in his opening remarks.
Assuming that we are discussing the Motion before the House, which seems to be a fairly large assumption, I am a little puzzled. It refers to the case for reducing delay in securing justice by giving jurisdiction to our courts. This seems to be based on two assumptions with regard to these five cases, the validity of which must at the very least be open to doubt. In the first place the motion assumes—and if it does not I do not know what it means—that if the English courts had been able to hear and determine the issues which eventually went to the Strasbourg court they would necessarily have come to the same conclusion and the journey to Strasbourg would have been unnecessary. That strikes me as being doubtful. I am not a lawyer.
745 Incidentally, and quite irrelevantly perhaps, I take the opportunity of saying that the myth which is constantly repeated that the convention was drafted by British lawyers does not pay sufficient attention to the work put into it by colleagues of mine who certainly were not lawyers. As I said, I am not a lawyer, but having read these five judgments I believe that it might equally be thought that recourse to the English courts would merely have added another year or so to the timetable before the cases went to Strasbourg.
My second point is that, as has been explained, all five cases raise in one way or another questions affecting the well-being of children—about their being put into care, about wardship, adoption and access by the parents. I can only think that the parents' prime concern in their search for justice must have been to retain responsibility for their children or at least to have greater access when they were in care.
But these are not the issues that the Strasbourg court considered, as has already been explained. Its judgments make it crystal clear that it was not considering the merits. What the court was looking at was the procedure; whether the parents had adequate access to the relevant tribunals and whether there had been unacceptable delays (a point on which I think the court is particularly well qualified to judge). Whether it would have made any difference had the procedure been that which the court thinks it should have been must be a matter for conjecture, but it is at least arguable that it would not have made any difference at all.
In one or two of these cases the High Court here and the ombudsman found plenty to criticise over the delays and so forth, but they would not intervene because the overriding consideration was the wellbeing of the children and they thought that criterion has been met by the action that had been taken. It is interesting that what is now being considered by way of remedy to the successful applicants, as I understand it, bears no relation at all to what is to happen to the children themselves after all these years. Rather it is what the parents are to receive by way of monetary compensation and payment of legal fees, all of which must be a long way from their original concerns.
My reading of the judgments is that the Government's case would have been stronger if the relevant bit of the Act—I must get the title right—the Health and Social Services and Social Security Adjudications Act 1983 had been in force at the time. But that would not have been the complete answer, and it will now fall to the Government to consider whether there should be fresh legislation to close the gap which has been disclosed in the 1983 Act. That is fair enough. But since the debate has been so widened perhaps I can go on to say that what has happened does not affect in any way the main consideration of whether the convention should be incorporated into our law. I do not think the circumstances of these cases advance the arguments on either side one way or the other. My objections to that course remain as strong as ever.
746 It is one thing for the Strasbourg court to say, as in effect it has in these cases, that it thinks we have it wrong and that we had better go away to think about how best to put the matter right. It is quite another thing for our judges to give an instant ruling which declares there and then what is the meaning in our law of one or other of the abstract principles set out in the articles of the convention, overriding, as they would, any existing provisions on the statute book. If this were the role of the judges it would open up a formidable prospect of uncertainty over a wide field of our law which would be cleared up only slowly on the accident of the cases coming to the courts.
I must confess that, try as I might, I find it intellectually beyond me to follow the reasoning of the noble and learned Lord, Lord Scarman, which I have heard on more than one occasion and which I have treated with the great respect it calls for. No doubt that is my fault, but I am slightly comforted by the fact that other eminent members of his profession share my problems.
Nor do I see anything in these cases to diminish the objection that the incorporation of the convention into our law would mean that the judges rather than Parliament would be called upon to decide many political and social issues dressed up as they would be as legal issues, notwithstanding what the noble Lord, Lord McGregor, said earlier in the debate. The lawyers themselves could hardly look forward to the criteria of appointment to the Bench being extended to include an assessment of their approach to social and political issues. That would not be an unrealistic prospect. Reference has been made more than once to the fate of poor Judge Bork. Do we really want to repeat that sort of experience in this country?
§ 4.37 p.m.
§ Lord Silkin of Dulwich
My Lords, I begin by saying how much I welcomed the maiden speech of the noble Lord, Lord Rippon of Hexham, particularly on this subject because he and I probably knew one another very much better in Strasbourg than in the United Kingdom when we were Members together of the Council of Europe; him leading the Conservative delegation and myself leading the United Kingdom delegation. We both had much to do with human rights. I need not remind him of the Greek colonels' affairs which was at that time a matter of great importance. He spoke today with great eloquence, as one would expect, and I have no doubt that we shall hear very much more from him. He is a great acquisition.
I was very glad to welcome back—if I may put it that way—the noble Lord, Lord McGregor of Durris, who I believe was too unfit yesterday to address the House; but he is clearly very fit today and he spoke with great conviction.
Having paid those compliments, however, I disagreed with the views that both noble Lords expressed. Whatever else is at issue in the debate, I personally would not challenge the principle put forward by the noble Lord, Lord Broxbourne—which I believe to be right—that our own law in the United Kingdom should at all times be as coincident as practicable with the international obligations which we have accepted. It is many years since we 747 accepted our obligations under the European convention. Indeed the requirements of that convention, building as it did on the universal declaration on human rights of the General Assembly of the United Nations, are in my view of the highest possible significance. They are significant not only because of their content, which the preamble describes as fundamental freedoms—the foundation of justice and peace in the world—but also because, as the preamble bears witness, the convention grew out of the resolution by like-minded European countries having a common heritage of political traditions, ideals, freedoms and the rule of law to take the first step for the collective enforcement of certain of the rights stated in the universal declaration. That in my view is of major importance. The principle of collective enforcement, which meant that each state party to the convention agreed to subordinate its own domestic control over its citizens to the convention's collective determination, was a novel and exciting advance, one that I appreciate is not welcomed by all; and certainly, as we have heard today, not welcomed by the noble and learned Lord. Lord Denning.
In accepting that principle—I quote again from the preamble—in my view we accepted thatthe fundamental freedoms are best maintained by a common understanding of human rights".That common understanding was to be reached by the carefully constructed system of the convention. That system plainly recognised that the founding fathers, including our own, did not regard themselves as dealing essentially with purely legal issues of interpretation. They were dealing with issues of the highest political importance to which the varying traditions of histories—indeed, religions and languages of different nations—would bring different and perhaps contrasting approaches.
It is for that reason that throughout the step by step progress through the convention system the emphasis is away from what one might describe as dry legality and statutory interpretation and towards the need for the settlement of differences between the parties concerned. That is indeed the function of the commission, to which any complaint is first submitted. The commission is required by the convention to assist the parties to secure a friendly settlement on the basis of respect for human rights. If the parties are unable to reach agreement the commission sends its report and proposals to the committee of Ministers, the representatives of government. It is then for those ministers to supervise the taking of satisfactory measures within a period of time to give effect to the committee's decision. It is the committee's decision, not that of the commission, and the committee will in practice have close regard to and give full credit to the political problems involved. We have experienced that ourselves in certain matters that have been referred to the convention where we have been found to he in breach. It is only if the attempt to reach a friendly settlement fails that the commission or party to the case can bring it to the court for a decision on whether or not there has in fact been a breach.
We on these Benches have always recognised the great value of the principle of collective enforcement, 748 qualified as it is by a constructive system designed to produce an agreed solution to political differences rather than a judicial decree or diktat. That is why we accepted the right of our citizens to petition the commission and the compulsory jurisdiction of the court. That is why in government and in opposition we pressed the extension of the right of petition when some disliked the consequences upon our traditions of the European collective view. On that there must be no doubt whatsoever.
It is now said that our law in places may he out of accord with the convention, and that this should be rectified by making it possible for our citizens to complain direct to our courts for their determination. That is of course a far-reaching proposal. It is certainly not clear to me how such a system of law would fit into either our own democratic tradition or the convention system that I have described with its careful balance between interpretation and the resolution of political differences by friendly settlement. Would the courts be dragged willy-nilly into the political arena? Would they find themselves overriding the law of the land without the will of Parliament first being obtained? I do not see how these consequences can be avoided.
Indeed, if one looks at the five cases before the House, they seem to me to be a striking illustration of that. What the European Court of Human Rights essentially decided is that in our family law, in our child law, there is a gap which it believes ought to be filled in some way in that in certain circumstances the natural parent of a child who had been removed from the natural parent did not know of, was not told of, did not have to be told of, certain matters that might affect the future of the child in providing the parent with the opportunity to go before the court. The parent could not go before the court because there was the gap in relation to access to the child, the one apparent gap brought about by these particular cases.
The European Court of Human Rights as I see it was saying that that was not fair to the parents; and not only that, but that it might be of great disadvantage to the children concerned because it was depriving the natural parents of the right to put forward ideas that at the end of the day could be important to the future of the child. We tried evidently to correct this gap in 1983 while these cases were going through the machine at Strasbourg too late for the cases in question. I do not know whether what we then did would be adequate if similar facts were to arise today.
I ask the House to put this to itself. Suppose the remedies suggested by the noble Lord, Lord Broxbourne, had existed, what would have happened in these cases? Would our courts, before whom these matters were brought, have said, "We know that the statute does not provide for a remedy but we shall invent a remedy. We shall assume that such a remedy existed because it would be contrary to human rights if such a remedy did not exist"?
As I said, I agree that our law should be as close as possible always to the accepted and developing concepts of human rights that flow from the convention. We gain no credit for falling behind 749 those accepted collective concepts. However, to agree that does not involve vesting the courts with powers that they do not now possess and that I believe are consistent neither with the structure of the convention system nor with our tradition of political democracy that requires Parliament, the representatives of the people, to alter the law and no other to override it.
I agree entirely with the view expressed by the noble Lord, Lord Allen of Abbeydale, that the right way to deal with the problem at this time is to ask Parliament to examine all the circumstances and to decide in what way the law should be brought into coincidence with the requirements of the convention rather than to allow the courts to make some instant decision that may very well cause greater disruption to our law than the existing situation. Therefore one asks oneself what are the alternative methods of accomplishing this coincidence between our law and the convention system. I would certainly strongly support the continuous process of reviewing our law and practices in order to inform Parliament of weaknesses and failures in our system, leaving it to Parliament to take whatever steps led from those faults.
This has already been done in many fields. It has been done in the fields of sex relationships, race relationships, and even in the particular matter before the House today. As I have said, it was done, satisfactorily or otherwise, in 1983. That is the sensible way of doing it. It enables Parliament to carry out its traditional function of examining all the implications of changing the law and trying to get the law right.
For myself, I would go further than that. It is now some 16 years—if I may go back into my own history—since I introduced in another place a Bill to establish a United Kingdom Commission of Human Rights to which complaints could be brought as an alternative to going to Strasbourg. That commission, like the Strasbourg commission, would have had no declaratory or legislative power. It could be given the task of seeking to achieve a friendly settlement, and thus mirroring the convention system, and reporting to Parliament when necessary so that Parliament could consider amendments to the law if that proved to be needed as a result of the consideration of particular cases.
We have already established a number of bodies and commissioners who perform a similar function. Some at present are concerned only with maladministration; but in my view it would be a consistent approach to link them to the means of fulfilling our obligations under the convention. It seems most odd that these commissioners are empowered to look at, and report upon, complaints of maladministration by government offices, by local authorities, but not to look at the human rights basis upon which our law ought to be formed.
My fear is that if we do not take steps of the kind that I have suggested we shall continue, as we have for so long, to argue and disagree upon the constitutional issues, the matters so eloquently advocated by the noble Lord, Lord Broxbourne, but in my view equally eloquently disagreed with by 750 noble Lords who take a different view. The possibility of moving in the direction in which I believe we should be moving in order to produce greater congruity with the convention system that we have accepted, and are bound to by international law, may well be lost for a long time.
I hope that the noble Earl the Minister will, with the Government, give thought to those possibilities as a real alternative to the extreme steps that the noble Lord, Lord Broxbourne, proposes. We should be grateful to him for bringing this matter before the House once again so that it can consider these issues. It is right that we should continuously keep before us the fact that we are not always in conformity with our international obligations, and the real issue is the best way of ensuring that in future we are.
§ 4.54 p.m.
The Minister of State, Home Office (The Earl of Caithness)
My Lords, I should like first to thank my noble friend Lord Broxbourne for giving us another chance to discuss the most important issue of incorporation of the European Convention on Human Rights into United Kingdom law, and for introducing the debate with his customary courtesy and clarity.
When we last debated the whole question of incorporating the European Convention on Human Rights into domestic law, just over two years ago, my noble friend Lord Glenarthur expressed the strong reservations of the Government about incorporation. My noble friend Lord Broxbourne ended by hoping that Lord Glenarthur would learn to repent over the Christmas season. I have to bring to my noble friend Lord Broxbourne the glad tidings for this Christmas that the recent judgments of the European court to which he referred leave the Government uncontrite on this fundamental question of incorporation.
I hope there is no question in this House of the Government's commitment to the principles of the civil and political rights which are enunciated in the European Convention on Human Rights. Our lawyers helped to draft the convention—indeed not only our lawyers but other members of the Home Office who do not have legal qualifications but who have put immense time and effort into the convention—and we were the first country to ratify it. We have accepted the right of individual petition to the European commission and the compulsory jurisdiction of the European court since 1966, renewing these rights in 1986 for a further five years. The fact that the convention does not have the force of domestic law in this country does not detract in any way from our traditional respect for human rights.
The reason why we view incorporation with apprehension is that we are wholly unconvinced that it would bring about any marked improvement in the enjoyment of human rights of this country, and it would have serious and, we think, unfortunate consequences for our constitutional arrangements and in particular for Parliament's relationship with the judiciary.
The inability of the distinguished Select Committee of your Lordships' House under the chairmanship of 751 the noble Lord, Lord Allen of Abbeydale, to agree on this question foreshadowed the narrow failure of Sir Edward Gardner's Human Rights Bill in another place to secure closure on Second Reading on 6th February 1987. There are many and persuasive advocates both for and against incorporation in both the main parties, and I do not think any government would contemplate a constitutional change of this importance without a far wider degree of support across all the parties.
As the noble and learned Lord, Lord Silkin, will be the first to agree, although we have not incorporated the European convention we have obligations under it on human rights to abide by the decisions of the European Court of Human Rights, or, where the Committee of Ministers decide there has been a violation of the convention, to take the necessary measures. Thus we have changed the law or administrative practice where necessary following an adverse decision. Sometimes it is not necessary to do this because the appropriate changes have already been made by government of its own accord, or in compliance with a judgment of the domestic courts.
The Strasbourg court and Committee of Ministers find violations from time to time against most member states, including those which have incorporated the convention into domestic law. My noble friend Lord Broxbourne made much of the United Kingdom's supposedly bad record in Strasbourg, but against that it must be remembered that we have accepted the right of individual petition—by far the most important avenue to Strasbourg—for longer than many member states, and that this country is often the respondent in cases where several judgments address the same issue. The five judgments are a case in point.
If the argument for incorporation is that it will mean that no cases, or even that fewer cases, will go to Strasbourg, I cannot accept it. At the beginning of this year, countries which have incorporated the convention had 43 violations found against them by the court; countries which had not, including the United Kingdom, had 17 violations. If we were to incorporate the convention, cases would still go to Strasbourg unless we took to the unprecedented step of first denouncing the convention or we no longer accepted the right of individual petition. The publicity attending incorporation in generating a substantial body of human rights litigation in UK courts would possibly increase the number of cases going from the UK to Strasbourg.
Further, the UK legal system has no filtering mechanism comparable with the European commission which can—and in the great majority of cases does—declare applications inadmissible. There is the real prospect that incorporation would weigh down the machinery in this country with applications, many of them unmeritorious, without reducing the number of unsatisfied applicants going to Strasbourg. It is not clear, either, that applicants would necessarily gain if the convention were incorporated; there is no guarantee that United Kingdom judges would necessarily take the same line in relation to new issues as would those in Strasbourg 752 nor (because Strasbourg will consider cases only where domestic remedies have been exhausted) that delay would be cut.
The Government's main concern, however, is the effect of incorporation on our constitutional arrangements. We have always regarded the convention as a lighthouse, keeping the countries of Europe in the right general direction according to their common heritage, rather than as a rudder, controlling every movement. When we became party to the convention we saw it as embodying, in declaratory terms, the principles of human rights already enjoyed by democratic countries, such as the right to a fair trial, the freedom of the press and right of free assembly. If the convention were to be incorporated, then principles of the greatest generality would be regularly interpreted by the UK courts in specific cases. Some of the articles in the convention guarantee unqualified rights, like the right to life and liberty, but Articles 8 to 11 have qualifications limiting the general rights which they apply in the interests of national security, public health and morals, the rights of others and so on. It is with these articles, particularly, that the whole question of who will interpret them, becomes crucial. Judges are already (quite wrongly in our view) accused of political bias in their interpretation of highly specific statutes, and this would no doubt rise with a crescendo if they had to interpret the much less specific terms of the convention where the scope for judicial discretion would be so much greater.
This is not to say that judges are not to be trusted to make the right decisions, but rather that they should not be asked to take decisions on such vague criteria. That is the job the convention entrusts to the European Court of Human Rights. To propel our judges in this way into the political arena might seriously undermine their deserved reputation for impartiality upon which the whole edifice of the administration of justice rests, and it could also undermine the sovereignty of Parliament. I understand that my noble and learned friend the Lord Chancellor shares this view. It is, of course, often said that judges are already involved in quasi-political issues through the mechanism of judicial review, but I would remind the House that judicial review is concerned solely with the means by which the executive comes to a decision, not the merits of the decision itself, a point to which I shall return in connection with the five judgments. It will also be objected that judges from 21 countries in the European court with very differing legal traditions already make decisions affecting us, and do so on the basis of a simple majority. Against that it must be said that the determinations of Strasbourg do not create a legal vacuum; the respondent country is given time in which to cure the breach, and it may do so in its own way. To follow the argument of the noble and learned Lord, Lord Scarman, to its logical conclusion, it would mean that if the convention were to be incorporated, an adverse judgment of the UK courts striking down a UK statute would have immediate effect. The wording of my noble friend's Motion on the Order Paper brought the recent judgments of the European court to the attention of this House, and for that I am grateful, for I think that 753 they illustrate rather neatly the main point that I have been striving to make.
It may he helpful to your Lordships if I first outline the background to these cases which all concern access by natural parents to children in care. In all live cases—which go by the designations of O, W, B, R and H in order to protect the identity of the families in question—the European court held that there had been a violation of Article 6(1) of the convention. That Article provides, inter alia, that in the determination of his civil rights, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. In relation to four applicants, O, W, B and R, the court held that while they were able to challenge before a court care orders or resolutions of the local authority to assume parental rights and duties over the children, and while the applicants could on judical review have questioned aspects of the local authority's access decisions, these proceedings did not satisfy Article 6 because they did not enable the substance of the access decision to be adjudicated upon directly.
In the case of W, B, R and H the court decided there had been a breach of Article 8. Article 8, requires, inter alia, that there shall he no interference by a public authority with the right to respect for family life, except for reasons such as the protection of health or morals or the protection of the rights and freedoms of others. The court considered that this article had been breached because the applicants W, B and R were insufficiently involved in the local authority's decision-making process; for example, they were not consulted in advance about, nor informed promptly of the decisions to terminate access to their children who had been placed in care.
In the case of H, the court decided that the proceedings relating to the applicant's access to her child had not. for a variety of reasons, been concluded within a reasonable time (contrary to Article 6(1)), and that contrary to Article 8, the question of her future relationship with her child had been determined by the mere passage of time and not in the light of all relevant considerations.
Because my noble friend Lord Broxbourne did not mention the five cases, as the noble Lords, Lord Lloyd of Hampstead and Lord Allen of Abbeydale, have pointed out, I can only suppose that my noble friend is thinking that had the convention been incorporated, these five cases would have been decided for the applicants much sooner and without the expense and delay involved in going to Strasbourg. I think that the first point to make here is that this makes one presupposition, which is that the English courts, interpreting the convention, would have come to the same conclusions as the European court. But one of the judges of the European court himself stated in dissenting from the majority judgment that he could not accept the extensive interpretation of Article 8 by the majority of the court. I am not suggesting that English judges would not have reached the same decision as the majority: I would only say that it is, perhaps, an open question. Had the applicants not been successful in 754 this country, they would have the added expense and delay of taking their case to Strasbourg as the court of last resort; or they might have dropped the case as unlikely to succeed.
I should like to stress to the noble and learned Lord, Lord Scarman, that incorporation of the convention does not necessarily mean that our citizens would lose the right to petition the commission in Strasbourg. In either case, they would have been worse off than in fact they were. But I realise that my noble friend will doubtless now say that this is false antithesis and that the question is whether a successful application in the Strand under an incorporated convention would come sooner than a successful application to Strasbourg under our present arrangements.
Then there is the point which emerged with clarity from what was said by the noble Lord, Lord Lloyd of Hampstead: in practice, what would the parties in our domestic courts have done if our courts had found these violations? As the noble and learned Lord, Lord Silkin of Dulwich. told us, there would have been a lacuna and a stalemate until Parliament could address the matter.
One cannot, obviously, generalise from only five cases, but it may be that the average time taken for the European court to determine a case does take significantly longer than the equivalent judicial process in this country would under an incorporated convention. Yet under the Bill introduced into this House two years ago by my noble friend, the United Kingdom courts would have had no protection, comparable with the decisions of inadmissibility by the European Commission on Human Rights, from a mass of unmeritorious litigation, and this lack might well increase any delays in the domestic legal process. Furthermore, it must be repeated that the applicant, if unsuccessful in this country, would have the added delay of going to Strasbourg, or would have to drop his case. I should add here that the Council of Europe and its member states are very conscious of the delay which occurs under present arrangements, and that we have taken an active part in various ways to expedite the procedures in Strasbourg. By taking this action we are meeting one of the points made in the enjoyable speech of my noble friend Lord Rippon of Hexham.
I mentioned earlier that, if found in breach by the European court, we cure that breach where necessary, because it sometimes happens that steps have already been taken by the Government which anticipate the judgment of the court. This is so, to a large extent, with these five judgments. The five applications relate primarily to access decisions made in 1977–1981. In 1983, Parliament enacted the Health and Social Services and Social Security Adjudications Act, which included provisions in recognition of the concern that access to a child in care could be terminated simply by an administrative decision by the local authority. Schedule 1 to this Act inserts Part 1A into the Child Care Act 1980. Most of the provisions of Part 1A came into force in January 1984 (the remainder came into force on 24th May 1984). This enables parents to apply to the juvenile court for an access order where a local authority has 755 given notice that it intends to terminate or refuse all access to a child in care.
The legislation also requires the Secretary of State to issue a code of practice on access to children in care. The code, which was published in 1983, sets out the basic principles for local authorities and other agencies for the promotion and sustaining of access and for handling decisions on access.
The 1983 legislation was based on a perceived need at that time, and indeed goes some way to remedying some of the problems identified in the Strasbourg proceedings. The Government now recognise that this legislation did not go far enough and thus in January of this year published a White Paper, The Law on Child Care and Family Services, which sets out proposals for the reform of child care law. The paper proposes that disputes between parents and the local authority on access should be resolved, if possible, before a care order is made as part of good practice. If this is not possible, it should be for the court to decide when a care order is made or subsequently if there is a dispute about reasonable access.
Parental involvement also features in a number of the proposals. The Government intend to introduce legislation as soon as the parliamentary timetable permits.
I think it would generally be accepted that there are some circumstances in which it is not right for parents to have access to their own children who have been taken into care. Equally, it does not seem right that that decision should be taken without regard to the views of the parents and that the decision to deny or terminate access should not be communicated immediately to the parents.
This view is very much in line with the principles of natural justice which have been developed over the years in judicial review of executive action. Parliament has already recognised a need for specific legislation to remedy a defect in current administrative arrangements in response to a clear social need. This is not a reaction to a particular case. One forgets too easily that the court's judgments bear on the law or administrative practices as they stood when the case arose and not as they are now.
The noble and learned Lord, Lord Denning, will not be alone in his view that Strasbourg has meted out an injustice in finding the United Kingdom in breach of the convention. We are naturally always disappointed and regretful when our arrangements are found to be wanting, but that is where we find ourselves. The Government will bring forward the necessary measures in due course and then give this Parliament the opportunity to address the important questions to which my noble friend Lord Beloff referred.
These cases of child abuse which my noble friend mentioned are not strictly relevant to the circumstances of the five judgments. But I would like to stress that the Government place a high priority on child abuse matters and have in hand a number of initiatives in relation to the handling of child abuse cases. These include the preparation of guidance for the training of professional staff, which will of course 756 take account of the lessons learnt from the Cleveland and other inquiries.
Some of the objections that we would have to the incorporation of the convention might also arise in relation to the establishment of a commission or committee of human rights here, a point mentioned by the noble and learned Lord, Lord Silkin of Dulwich. But while we may not agree with the noble and learned Lord on the merits of a body, we share his reservations about the incorporation of the convention. On the specific point he mentioned, which was related to something he raised some 16 years ago, perhaps he would allow me to delve into the files, look at it and draw it to the attention of my right honourable friend.
The noble Lord, Lord McGregor of Durris, said that a layman would speak with trepidation on this subject. I know from my experience of the Criminal Justice Bill with what trepidation I tread in the legal field. It is of interest to note that of the four laymen who have spoken on this subject today, three are against what my noble friend Lord Broxbourne wants but one is for it.
I conclude by saying that the circumstances of these five judgments, far from persuading me that we should incorporate the European Convention on Human Rights, reinforce my belief that Parliament can be trusted to secure those rights for all our citizens.
§ 5.15 p.m.
§ Lord Broxbourne
My Lords, it would be a poor return for the kindness of the House in attending this debate and listening to my opening speech if I took more than two minutes to express my thanks. But equally it would be a poor return if I did not take those two minutes for that purpose.
We have had an interesting, I think a fascinating, debate, which probably justified our decision to pursue human rights rather than the pelicans as our main subject of discourse. The debate has been flawed only by one thing: quite a number of speeches trespassed on the area of the general position of the European Convention on Human Rights, which is not the case before the court, so to speak, as I sought to indicate in my opening.
I shall not embarrass noble Lords by identifying the principal offenders in this regard for whom I have a very real and great respect. So let me extend my thanks first and foremost to those who reiterated or enunciated their support for the principle underlying this Motion and in particular extend my well-deserved congratulations, along with those of others, to my noble friend Lord Rippon of Hexham for his characteristically excellent speech. It came as no surprise to me, having known him for so long and in so many contexts to which he was kind enough to refer in his speech.
If I do not catalogue the others to whom I express thanks in this context, your Lordships will understand the it is not a case of the application of the principle expressio unius exclusio alterios. On the contrary, I hope that noble Lords will assume that I thank them all collectively as if I had set out their names individually.
757 I should like to thank also those noble Lords who took the opposite view for the temperate language in which they sought to deal with so conspicuously difficult a case. I have not given up hope of them; I see the noble Lord, Lord Allen of Abbeydale, rapt in contemplation. As he knows, I have a great respect for him for his work as President of MENCAP. I am only sorry that he does not bring the same sagacious judgment to the question of human rights as he brings to the affairs of MENCAP. I reminded him on one occasion that there is more joy in heaven over one sinner that repenteth. I seem to see on his distinguished features now the complacent expression of one who savours from afar the future fragrance of the fatted calf. We shall be happy to supply him with it.
I am not so hopeful of the noble Lord, Lord Lloyd of Hampstead. I only say to him that if he wishes to participate in the feast, he had better hurry up. There may not be enough portions to go round.
I thank the noble and learned Lord, Lord Silkin, of course, and my noble friend the Minister for their expression of the points of view of the Opposition and the Government. I should be using the language of hyperbole if I said that I was now clear beyond peradventure as to the attitude of the Government in the reason for their opposition to this. I can only hope that further consideration will bring them to a more positive and defensible view.
Finally, I respectfully thank those noble Lords who without contributing speeches to the debate have contributed to it by their attendance here. I see the noble Lord the Chancellor of Oxford University is present. I had hoped that we would hear from him but his views are well known. I am sure that he would have supported this Motion had he been inclined to speak. I thank all noble Lords for their attendance, testifying as it does to the importance of and interest in the subject. I beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.