§ 3.30 p.m.
§ Lord Irvine of Lairg rose to call attention to the state of civil liberties under this Administration; and to move for Papers.
The noble Lord said: My Lords:
Thatcherism makes intellectual liberty just another commodity, to be enjoyed when there is no particular political or administrative price to be paid for it, but abandoned, with no evident grief, when the price begins to rise. That is not despotism. But it cheapens liberty and diminishes the nation".
§ Those are not my words, though I agree with them. They are the words of the Professor of Jurisprudence at the University of Oxford, Professor Dworkin, in an important article at the end of 1988. His conclusion was that, "liberty is ill in England".
It is a theme to which he returned in a public lecture only last Thursday. His proposition was that the very concept of liberty,
is being challenged and corroded by the Thatcher Government".
the Government's challenge to freedom has nothing to do with … despotism. It shows"—
a more mundane but still corrupting insensitivity to liberty, a failure to grasp its force and place in modern democratic ideals".
§ The argument is that the concept of liberty turns, first, on the sovereign idea that liberty of speech, conviction and information figure among fundamental human rights; and, secondly, on a set of working assumptions about how these rights must be protected—assumptions to be characterised as together forming the culture of liberty. So the basic argument is the high value that should be given to freedom of expression; that it should not be traded in the same way as one social good may be bartered against another; that government should ever bear the burden of proving to a high standard a real necessity to interfere with freedom of expression.
§ The weight of these charges could be assessed by reference to many freedoms—freedom of the press; of broadcasters; of assembly; academic freedom. But a sustained feature of this Administration has surely been their obsession with government secrecy and national security, to the prejudice of traditional freedoms. It is hard to think that in the GCHQ affair hostility to trade unions did not walk hand in hand with indifference to basic freedoms. Some industrial action at GCHQ caused the Government to announce that staff there could no longer be members of trade unions. They would be free to join only a staff association approved by the Government. Their loss of freedom of association was to be bought of f at £1,000 a head—subject to income tax! They had to accept or else; and ultimately be sacked if transfer elsewhere was impossible. The last sackings took place last year.
§ The Government were adamant that a no-disruption agreement with the unions could not be given a chance, although the Government could then have had their way if the agreement had been tried and failed. The Government were condemned by the ILO, but that mattered not. The courts held 905 that they had failed to comply with their legal obligation to consult with the Civil Service unions before withdrawing freedom of association. But the Government succeeded because their decision was for reasons of national security and the courts held that they could not question whether that decision was truly necessary for those reasons. If they had, the Government would surely have failed.
§ GCHQ, however, was only one step in a series where the Government have exaggerated state security t0 the prejudice of freedom. There has been a huge increase in prosecutions under the official Secrets Act in the past decade. In 1983 Sarah Tisdall from the office of the Foreign Secretary delivered documents to the Guardian evidencing a government decision to delay a Statement to Parliament about the arrival of Cruise missiles in Greenham Common until after they had arrived. One object was to enable the Government to emphasise their position first, before the Opposition and the "peace movement" could react. The courts ordered the Guardian to return the documents. As a result, Sarah Tisdall emerged as the suspect: she confessed, and was sentenced to imprisonment. Your Lordships' House, in its judicial capacity by a very narrow majority of three to two, held that national security had required the return of the documents. However, the distinct impression was left that the "secret" tab on the documents was for reasons of parliamentary or political advantage, not genuine security interest.
§ Then there was the Ponting case in 1984. He had sent Mr. Tam Dalyell, MP, Ministry of Defence documents about parliamentary inquiries into the sinking of the "General Belgrano". At his trial he alleged that he had wanted to blow the whistle on how Parliament had been misled by Ministers and how Ministers had planned to mislead the Foreign Affairs Select Committee. This was an astonishing prosecution to bring under the official Secrets Act and eventually the jury said "no" to a prosecution it did not like by acquitting Mr. Ponting—astonishing because on day one it was conceded that his disclosure had caused no damage to national security, but only a breach of confidence. It was astonishing also because potential jurors were vetted by the Special Branch, although national security was not in issue. Ponting, of course, had no authority to reveal the documents to Mr. Dalyell. His defence was that he had revealed them because it was his duty in the interests of the state, under Section 2, to do so. The jury acquitted, despite a direction that "duty" meant official duty and the "interests of the state" meant the interests of the government of the day, which they do not.
§ Then in 1987 there was the bizarre Zircon affair. Your Lordships will recall that it concerned the withdrawal by the BBC of a film alleging that the Ministry of Defence had secretly launched a £500 million surveillance project unbeknown to Parliament, in breach of a clear undertaking that any defence projects exceeding £250 million would be disclosed to the Public Accounts Committee. Ineptitude followed—of a quite comic order. The of fending journalist arranged for the film to be shown in the other place, in order to prove that there was no risk to national security. Incredibly, the 906 Government went to the courts for an injunction. Obviously the courts refused—it was for Parliament to regulate its own affairs. Then the Speaker banned the film after the Attorney-General briefed him on the security implications.
§ The rest is history—the failed attempt to serve an injunction on the journalist; the New Statesman publishing the contents of the film; search warrants to search the offices of the New Statesman, followed by a search of the Scottish office of the BBC. So, this punitive action over, the problem went away, with injunctions lifted, the Speaker's ban withdrawn, the film transmitted by the BBC two years later, no prosecutions brought, and no damage at all to the national interest other than that the authorities had succeeded in making themselves look ridiculous.
§ But this was nothing alongside Spycatcher. Undoubtedly Wright was in breach of his obligation of confidence, but he had grave allegations to make affecting the public interest; that MI5 had attempted to destabilise a democratically elected government; had been implicated in an attempt to assassinate President Nasser; had been involved in the bugging and burglary of trade unions and political parties. I pass over the fiasco in Australia, the continued banning of the book in this country, long after publication in the United States and long after the information had become public knowledge throughout the world; and then the turning of the tide in the courts with the judge, who heard the trial at the end of 1987 for permanent injunctions against the press, declaring that the absolute protection that the Government were seeking for the security service, "could not be achieved this side of the Iron Curtain".
§ It became progressively bizarre to go on stubbornly trying to ban in this country what was freely available everywhere else, and here too with a modicum of effort.
§ In the aftermath of Spycatcher the staff counsellor for the security and intelligence services was invented. Members of the service could take their grievances to him. He has access to the Secretary to the Cabinet and reports annually to the Prime Minister, the Foreign Secretary and the Home Secretary. But the arrangement is all, in-house, within the Executive; the public can never know.
It is an offence under the official Secrets Act 1989 to reveal any information about the activities of the security service. The opinion of the trial judge in the Spycatcher case that,
the public was the proper recipient of information that M15 was attempting to destroy public confidence in a democratically elected government",
§ was ignored. The counsellor has no duty to account to Parliament.
§ The Security Service Act 1989 puts MI5 on a statutory basis for the first time. However, its powers are so broad that it can do virtually anything. The service must not be used to further the interests of any political party, but there is no prohibition on acting contrary to the interests of a political party. The Government refused to accept an amendment borrowed from Canada which would have prevented surveillance of those engaged in lawful advocacy, protest or dissent.907
§ It is the Home Secretary, not the courts, who may authorise warrants permitting literally any interference with property. It comes down to the fact that the Home Secretary is absolutely free to decide on the width of the legislation. True, there is to be a security service commissioner who reviews the grant of warrants by the Home Secretary. But he reviews them only after the event. He cannot order the Minister to cease what is improper. He reports annually to the Prime Minister, but any part of the report appearing to the Prime Minister to be prejudicial to the continued discharge of the functions of the service need not be laid before Parliament.
§ It is also true that a tribunal to investigate complaints by individuals has been set up. But it cannot adjudicate on service inquiries into a category of individuals—for example, CND or a political party—and a complaint by an individual must fail if the security service has reasonable grounds for believing him to be a member of such a category. The truth is that the tribunal's powers are very weak; and it, and the commissioner for good measure, are made immune from judicial review. Nor is there any system for the accountability of the security service to Parliament or any other form of independent scrutiny of its activities.
§ The system which works well in Canada—that is, a security intelligence review committee of Privy Councillors appointed by Her Majesty's representative in Canada, after consultations between the Canadian Prime Minister and the leader of each party with a minimum of 12 Members in the House of Commons—is rejected. The Canadian committee has unrestricted oversight of the discharge by the service of its duties and hears complaints. There is the advantage that its composition is not dominated by a single person, the Prime Minister.
§ Equally, my party's proposal for accountability to Parliament through a House of Commons Select Committee was rejected. The legislative scrutiny that applies in the United States and Australia is unacceptable to this Administration. Surely public confidence in a proper system of democratic control requires something more than the assurance of supervision by a single Minister.
§ Then we had the official Secrets Act of last year. The one thing that this measure is not is a liberalising measure. It provides no positive rights to information and no freedom of information. It fails to recognise the public interest to know of abuses by government of its powers. A narrow amendment was moved in your Lordships' House which would have allowed officials to reveal really serious misconduct involving crime, fraud or other gross impropriety. Even that could not be accepted. Under the common law, where breach of confidence is alleged, that is a defence. It is a defence that the public interest favours disclosure. But that defence is not available under the Act. As Mr. Edward Heath pointed out in another place, newspapers could be prosecuted for disclosing an Irangate in this country. Therefore there is no defence for a newspaper, whose source is 908 a civil servant on a security or defence matter, which reveals that a Minister of the Crown has not told Parliament the truth, or has wilfully withheld it or been economical with it.
§ I do not accept that the categories of information protected under the Act represent a narrowing of the scope, in practice, of official secrets. An Act which was becoming substantially inoperable in practice has been replaced by one capable of being more repressive in practice. It is an offence for any member of the security service to disclose confidential information, even if it causes no harm. It is an offence for officials to leak information, however true, about unpreparedness in the military sphere, provided that the truth can be shown to be damaging. It would be an offence to reveal here information given in confidence by our Government to a foreign state where the information has been leaked by that state, and even if the information has had the widest currrency abroad, provided that the truth could be shown to be damaging. We retain a system well fashioned to keep from the public view any information embarrassing to government, whether bureaucratic error or, worse, deception—laws which do not reflect the balance a modern democratic society requires between the public interest to receive, and the state interest to withhold, information.
§ The Administration's claim that the statute liberalises is as ill founded as their same claim for the Interception of Communication Act 1985. A warrant for interception can be issued by the Home Secretary in the interests of national security, without any definition of what that means. So the Minister is judge. Again, the model of other countries, requiring judicial authorisation, is rejected. There are so many of these warrants that it is obvious they are authorised by officials with only formal approval by the Minister. The tribunal to hear complaints is a spurious protection. It can only consider whether a warrant is properly issued under the Act; that is, not perversely by the Minister—a burden which is impossible to discharge—but not whether the warrant has been used for unauthorised interceptions. Its decisions cannot be judicially reviewed, yet again, by the courts.
§ True, there is a commissioner to oversee the exercise of these powers. He is appointed by the Prime Minister. He must report on abuses to the Prime Minister, who is not obliged to publish these reports; and he must report annually on his duties to the Prime Minister, who can exclude anything from that report when published, if thought by the Prime Minister to be contrary to national security.
§ This year the commissioner's report runs to an economic three pages, with a one-page appendix on the number of warrants. The commissioner confirmed that all warrants had been properly issued and that the tribunal, in completing its investigation of 47 complaints, had found not a single breach of the Act. I do not question the good conscience of anyone concerned, but the system is no substitute for warrants being granted by judges and accountability to Parliament.909
§ I shall not go on to multiply instances. I do not doubt that other noble Lords will do so in the course of this short debate. But I feel that I should not leave of f opening this debate without at least touching upon a great issue which I imagine will be addressed by other noble Lords: has the time come for our country to incorporate into our law the European Convention on Human Rights? The current position of my party is no, though it remains subject to debate. The Government's position is also no.
§ It was the 1951 Labour Government who were first among the members of the Council of Europe to ratify the convention. It was the Labour Government of 1966 who accepted the right of individual petition under the European convention to complain to the European Commission of Human Rights of alleged violations of the rights and freedoms guaranteed by the convention.
§ Incorporation of the convention is no panacea for the decline in our civil liberties. The policy of my party is; that we should have a freedom of information Act and that both M15 and M16 should be made subject to parliamentary supervision. However, the further issue is whether incorporation of the convention into our law would also advance civil liberty. The main argument against is that powers would be taken away from Parliament, where they belong, and given to the judiciary, where they do not belong. Your Lordships may think that there is one basic question: if civil liberties are worth protecting, is it sensible to rely upon Parliament alone to do the job?
§ The case for incorporation is that the protection of Parliament is not enough. The Executive dominate. Governments are characteristically elected on a minority of the votes cast in elections in which civil liberties issues rarely receive much attention. The Prime Minister dominates the Cabinet. The payroll vote becomes ever larger. This Administration have set a precedent for the use of three-line Whips, even on Private Members' Bills. Sheer lack of parliamentary time of ten makes proper scrutiny a mirage. It is difficult to believe that any of us are wholly satisfied with the parliamentary process as it operates today. Two to three years ago, the other place was given but three days to consider more than 1,000 amendments to the Education Reform Bill and the poll tax Bill—on average, 80 seconds per amendment. The poll tax was a classic case of legislating in haste and repenting at leisure.
§ I do not desire to detain your Lordships for too long. I well know the argument that the powers of the judiciary should not be enlarged at the expense of Parliament; that the judges are not the best equipped to decide those issues. But is it the final position of both major parties that we do not believe that our courts can help protect our citizens' rights under the European Convention; that we rely upon our Parliament alone, whoever is in power, and foreign judges only? I beg to move for Papers.
§ 3.51 p.m.
§ Lord Hailsham of Saint Marylebone
My Lords, I confess at once that I put my name down to speak in the debate with great hesitation and, as I hope the 910 Opposition Bench will accept, with great reluctance. I was stung into the desire to do so by what seemed to me at the time—I am afraid that my suspicions have been confirmed rather than otherwise—the somewhat acidulous party political phrase that has been incorporated into the last phrase of the Motion. We can do better than that. This country deserves better than that. The country is entitled to expect the House to do better than that.
The issue of human freedom is not well accepted by the expression "civil liberties". I shall return to that general consideration in a moment. Nor is it at all well served by trying to draft American ideas into the British constitution. I hope that I shall not be suspected of insulting my mother's country. I am in truth a son of the American revolution, having had three male ancestors who fought against the British and thereby achieved the independence of Britain from the United States. I question the value of attempting to graft a pear onto a peach, and that is a point to which I shall again revert.
The first point is not to chase a series of individual hares around the course: from Ponting to Greenham Common; from Greenham Common to the Data Protection Act; from freedom of information to Spycatcher and all the rest of it. That would take us all night. The first question to ask oneself is: what is human freedom about? I put this general conception before the House: what a free parliamentary democracy is concerned to do is not to achieve freedom as such in the absolute, or law and order in the absolute, but to achieve the optimum level of freedom under law.
I shall describe what I mean by freedom under law. I mean the freedom of virtuous and responsible individuals to live according to their desires; to express their own personalities under just laws, enacted by a free Parliament and administered by an independent judiciary. That is my definition of what we are after.
By trying to turn the issue into a party political one, we do discredit to ourselves. We are talking ourselves down. In fact, we all know at the bottom of our hearts that this is one of the most agreeable countries in which to live. I only wish that it were even better. Comparing ourselves with the appalling state of the present world as we view it in the newspapers every day, this is an agreeable country in which to live. As I say, I hope that it will become even better.
I may be asked what I mean by "responsible people". I shall issue a caveat here. By responsible and virtuous people I mean people who obey not just the letter of the law but—to adopt a phrase from a recent lecture by the noble Lord, Lord Swann—obey the unenforceable code of obedience which natural morality imposes upon us. The freedom consists within that bound, subject to the provisos that I have made about a free Parliament and an independent judiciary, to allow human talent and virtue to blossom under those constraints only which a natural morality would otherwise impose.
It is a great mistake to use the phrase "civil liberty" too of ten. We are not the enemies of government when we live in a free country. By far the most 911 serious encroachments on civil liberty are criminality, violence and terrorism—people who murder others for political reasons. of course there is no absolute level at which law and order and individual freedom can be said for ever to be engraved on tablets of stone at a certain static point, like the two tablets brought down from Sinai by Moses. That is not so. We live in a particular political context. Obviously we have to allow government whatever powers they may need to achieve the best that we can do in the circumstances in which we are.
The use of the phrase "civil liberty" is not English; it is American. It represents a kind of formulation to which the history of human freedom owes a great deal. Magna Carta, the Glorious Revolution of 1688, the Act of Settlement, the written element of our constitution, the declaration of independence—life, liberty and the pursuit of happiness"—by my American ancestors, and the first 10 amendments to the American constitution in the 1787 version, added immediately after the ratification of the original Philadelphia convention, have played an important part. So has the universal declaration of 1948 after the conclusion of the last war; so indeed did the European convention. They represent, as a matter of fact, only a fairly unsophisticated and perhaps primitive phase in the development of the kind of society that we wish to promote.
When we list freedoms and make a special freedom called civil liberty we seldom achieve our purpose. The first 10 amendments to the American constitution did not save the American negro from slavery for 82 years, nor from discrimination for nearly another 82 years. These are primitive ideas. The function of government, the function of legislation in parliament and the approach to civil liberties by the courts must be to articulate, within the context of a given society, the kind of natural morality as it affects real people, real men and women, in the social context in which they live.
That brings me to Professor Dworkin, of whom I wish to say nothing disrespectful, except that if he really said that liberty in this country was nil, he was talking nonsense—ridiculous nonsense at that. Professors of ten do. I make no complaint if he really said that, but it can only be described as nonsense.
We now come to the questions with which the noble Lord concluded his remarks. I gathered at last that he was stepping outside the galaxy of hares which he had been chasing during the earlier part of his speech to disagree with both major parties in their attitude to the European convention. I have a little more sympathy with him over that than my preliminary remarks might seem to imply. I should like to see, as I have said previously in this House, the European convention—subject to the sovereignty of Parliament—accorded modified incorporation into our jurisprudence. However, the reason is approximately the opposite of that the noble Lord put forward.
The Strasbourg court is carefully to be distinguished from the Luxembourg court. Different considerations apply. It sits in Strasbourg. Part of 912 its jurisprudence states that no one can go there until they have exhausted local remedies. I happen to think, rightly or wrongly, that British judges are far better judges of what does or does not comply with the European convention in the British context than foreign judges. Therefore, I should be glad to see the European convention, subject to the sovereignty of Parliament, incorporated into the British system.
It should be laid down that future Acts are assumed to comply with the European convention except in so far as Parliament has made plain beyond peradventure that an exception is to remain. When the House discussed a Bill the point could be argued out in Committee. I do not believe that the criticisms which the noble Lord levelled at his own party and mine were at all well founded in that respect. It would be a good thing if people were enabled to bring complaints against the European convention to the British courts. British judges know much more plainly than most what is suitable in the British context to read into the European convention.
I go back to where I started. When we look at all these enumerations of so-called civil liberties—whether it is the Magna Carta, the Bill of Rights 1988, the American Bill of Rights, the Universal Declaration or the European convention—they all represent a stage when free humanity asserted its rights against a known tyranny. The European convention was designed to stop people behaving like Hitler and Stalin. The Magna Carta was designed to prevent future kings behaving like King John. Up to a point, it succeeded. The Glorious Revolution and the associated legislation was designed to prevent the eccentric perversities of James II.
We begin there; we do not end there. We do not treat these as limitations upon our freedom of legislation nor upon the articulation with which that freedom is to be expressed, in law, custom or convention. We treat them as broad statements made at a point when humanity is trying to begin again after a rather dark experience. That is what we were doing in 1948 and the European convention followed. I hope we will not need to have to do that again during my lifetime before I pay the small tribute, which I shall have to pay sooner or later, to the reduction in the world population.
§ 4.5 p.m.
§ Lord Hutchinson of Lullington
My Lords, the noble Lord, Lord Irvine, has raised the issue of civil liberties—if I dare use the phrase—at a most appropriate moment in the wake of the legal services Bill. To follow the noble and learned Lord, Lord Hailsham, is always a most daunting occupation, particularly when he is in what I might call his philosophical mood. Civil liberties for me mean civil rights. If I am less philosophical in what I have to say, it is because I have spent a great deal of my life upholding the civil rights of the ordinary person.
§ Lord Hutchinson of Lullington
My Lords, civil liberties in that sense come to mean something 913 extremely practical and pragmatic. I found the speech of the noble Lord, Lord Irvine, intriguing since it came from a distinguished and young Member of his party. I cannot fail to call to mind the record of previous Labour administrations: the ban sought on the Crossman diaries; the expulsion of Mr. Hosenball; the prosecution under the official Secrets Act of two journalists in the ABC case when the judge publicly called on the Attorney-General to abandon the charges under Section 1 because, in his view, they were oppressive; the discovery of secret vetting under the control of the Attorney-General of the time; and the prosecution of the editor of the Sunday Telegraph for publishing an embarrassing document on the Biafran war that showed the Government's statements in Parliament to have been less than frank. I hope that the noble Lord's speech shows a sea change within his party.
Harry Street, in his book Freedom and the Law, said:Liberty in Britain is a state of mind rather than a set of legal rules".As the flood of legislation has poured in and out of this House, we have seen the truth of that observation. Innumerable amendments have been tabled on this side of the House to preserve and advance civil liberties and human rights, only to be almost universally resisted by Ministers in speeches betraying incomprehension as to their purpose.
Liberty is awkward; it is inconvenient; it is of ten expensive. It is most of ten urged on behalf of the disadvantaged and the unconventional. The well heeled and the well rewarded, safe in their complacency, need have little concern under a Right-wing government for their civil rights. No doubt they are virtuous and responsible in their daily lives. For others, who do not find life so agreeable, concern is great. This Government have shown themselves too of ten to be intolerant of criticism, paternalistic, dogmatic, convinced, under a dominant Prime Minister, of their own infallibility and determined to have their way. In such circumstances it has been inevitable that civil rights and liberties of the ordinary citizen have been very of ten undermined and eroded. If I may say so to the noble and learned Lord, that is why this matter is to a degree one of party politics.
Freedom from arrest and detention, a fair trial, freedom from discrimination, the right to privacy, the right to know the facts on which Executive acts are based and freedom from censorship are all areas in which the individual has been increasingly constricted and restricted. The roll-call of Bills passing through this House where this has been so include those involving police and criminal evidence, public order, the interception of communications, local government, data protection, contempt of court, video recordings, official secrets, the security services, criminal justice and, most recently, legal services. Police powers of arrest have been extended and detention incommunicado has been lengthened. The Intelligence services, as has already been pointed out, are now recognised by the law and remain unaccountable. The concept of the lifelong obligation of confidence, whatever the wrongdoing or criminality within the service, is now enshrined in the law.
914 Warrants to permit illegal acts and tapping of phones have been removed from judicial control. Many new absolute offences have been created. In the Spycatcher case which has been mentioned, the noble and learned Lord, Lord Bridge—the noble Lord, Lord Alexander, will know this only too well as he was present on that occasion—made this observation,Freedom of speech is always the first casualty under a totalitarian regime. Such a regime cannot afford to allow the free circulation of information and ideas among its citizens. Censorship is the indispensable tool to regulate what the public may or may not know. The present attempt to insulate the public from information available elsewhere is a significant step down that very dangerous road".The noble Lord, Lord Irvine, quoted the words of Mr. Justice Scott in another part of that case. Those observations have been made by impartial judges so of ten decried as Tory dinosaurs by some noble Lords on my left.
In the criminal courts persons may now be held for 36 hours incommunicado, and with a magistrate's warrant they may be held for 72 hours. This occurs in spite of the overwhelming evidence that a series of unacceptable miscarriages of justice have been due to the presentation of false confessions allegedly made in such circumstances.
The right to challenge jurymen has been removed. In Northern Ireland the greatest triumph of the IRA yet has been the abolition of the right to silence. The central tenet of the whole system of criminal justice in this country is the presumption of innocence. On the mainland that right and the right to a jury trial still stand between the overweening power of the Executive and the citizen. However, since the advent of the Courts and Legal Services Bill the independent, disinterested professional advocate and the independent, professional judge who are the means whereby those rights are guaranteed and made real are now themselves in jeopardy. Those very rights are in jeopardy also.
Legal aid has been removed from millions who may wish to assert their rights. Police powers in relation to meetings and marches have been enlarged and they have new powers of arrest. Persons awaiting trial on remand—they are still innocent in the eyes of the law—are held in circumstances of such squalor and such confusion that their rights have simply been extinguished.
The common law, as the noble and learned Lord, Lord Scarman, has so authoritatively pointed out, is no longer the ally of a vigilant parliament. It is now the servant of a docile legislature which is unable to challenge the flood of legislation. The criminal law is apparently powerless to guarantee Mr. Rushdie's freedom under the law.
Judges have reacted by developing some judicial control of the Executive through the brilliantly devised system of judicial review. However, this can only operate on a very limited front. The citizen has reacted by recourse to the Court of Human Rights at Strasbourg. He is usually represented by lawyers who act for no fee, as legal aid is not available. In spite of the fact that cases have taken six to seven years to be decided, more cases have been taken and upheld against the British Government than against 915 any other government in Europe. There have been injustices involving contempt of court, data protection, prison rules, immigration, corporal punishment, mental patients' rights, children in care, phone tapping, official secrets, homosexuality and the closed shop. Over 100 significant changes to regulations and administrative practices affecting citizens' civil rights have resulted from decisions of the Strasbourg court. This long trek to a foreign jurisdiction to find the sustenance of justice must surely be a matter of shame to this Government.
There is now only one way forward. I agree entirely with the noble Lord, Lord Irvine of Lairg, that it is the incorporation of the European convention into British law. Every other European country has incorporated that convention into its law. Then our judges will do what all other European judges do already, that is, interpret and apply the provisions of that convention in deciding cases which raise issues of fundamental freedoms as regards people's grievances in this country. I suggest that that is now the acid test. I can only hope that if there is a change of government in the next two years the noble Lord, Lord Irvine of Lairg, will be given a post of influence.
§ 4.18 p.m.
§ Lord Monson
My Lords, we are grateful to the noble Lord, Lord Irvine, for giving us the chance to debate this subject. However, I must confess that I too am somewhat perplexed as regards the precise significance of the prefix "civil". One knows that social justice is a subjective concept which bears little relationship to ordinary straightforward justice, but until the noble and learned Lord, Lord Hailsham, spoke I had imagined that there was no material difference between civil liberty and straightforward liberty. However, it seems that I may have been mistaken. I agree with the noble and learned Lord that even the use of the word "liberty" on its own is unsatisfactory. It is a word that one tends to associate with rather grandiloquent transatlantic rhetoric which stems, no doubt, from the Franco-American alliance of the late 18th century. I shall stick with the good Anglo-Saxon term "freedom".
How does one measure whether the general principles of individual freedom are being given sufficient weight and attention by the government of the day? One way might be through the monitoring of the volume of new laws, because most laws by definition are restrictive rather than permissive. Obviously those basic laws common to all civilised societies which protect the individual, his family, his possessions and indeed the state from violence or depredation are laws which enhance rather than detract from freedom. The same cannot necessarily be said of what might be described as optional laws, laws which create offences out of actions which most people probably have not traditionally regarded as criminal.
I have some figures which may surprise your Lordships. I can say with reasonable confidence that since this Administration came to power on 3rd May 1979 between 800 and 900 new offences—not laws but offences—have been created for which people 916 can be fined or imprisoned. of that total, about 200 provide for the possibility of imprisonment as an alternative or in addition to a fine.
Why am I so confident in that assertion? Because in July 1983 I established from a parliamentary Written Answer that between the beginning of May 1979 and the end of 1982 a total of 286 such offences had been created, of which 66 provided for the possibiity of imprisonment. As of 3rd May this year this Administration had been in power for exactly three times as long as the period covered by my partliamentary Question. The volume of legislation has certainly not diminished in the intervening seven and one-third years—if anything, quite the contrary. Hence my reasoned guesstimate.
What, in contrast, has been decriminalised during those 11 years? Exchange control has been abolished; restuarants can now serve drinks with meals throughout most of the day; pubs in England and Wales can now open until 3 p.m. on Sundays rather than 2 p.m.; reading spectacles can be sold across the counter without the need to produce a prescription; and, as has already been mentioned, the official Secrets Act has been liberalised, even if not to the extent that many of us would wish. Those are all thoroughly worthwhile and welcome liberalising measures. However, even if I have missed out two or three, they hardly counterbalance the 850-odd restrictive measures on the other side of the scales.
Having said that, clearly not every new law is unfairly restrictive or otherwise undesirable. New inventions, new techniques and new processes create new opportunities for crime—for example, computer crime—against which new laws must be devised. The growing menace of terrorism necessitates new restrictions as the lesser of two evils. None of us likes those restrictions but we must agree that we need them for the time being. The same can be said of the menace of the drug trade. However, in the latter case it is not certain that all the means can be justified by the intended ends.
The creation of other new offences is a much more controversial matter. One thinks of the measures of a nanny state—compulsory crash helmets, seat belts, and so on. Those of us who were laughed at for predicting that those were the thin end of the wedge are unfortunately being proved only too right. Not only are there more and more plans afoot compulsorily to helmet and belt us against every conceivable hazard, but attacks on tobacco and smokers of tobacco have reached unprecedented levels.
Then there are environmental laws. The environmental laws. "Environment" has become one of those words, like "children", which causes most critical faculties to be suspended. I readily join Mr. Auberon Waugh in deploring the laws which permit people to be fined up to £2,000 for chasing a pair of bats out of their attic or for uprooting a couple of rare weeds from their garden.
There is also what might be described as panic legislation. That is legislation which might, indeed, turn out to be partly or even wholly justified on mature reflection but which is rushed through in a 917 great hurry so as to still the shrieking demands of the tabloid press. One thinks of the Firearms Bill, the happily mainly abortive Football Spectators Bill, legislation on censorship of videos, kidney transplants, acid house parties and so on.
Finally, but most importantly, there is what might be called overkill legislation: the assumption of massive powers to deal with what, by any objective standards, is a minor nuisance. A notorious example of this appears in the Broadcasting Bill which your Lordships will debate soon after the Recess. The Bill includes clauses which empower the authorities forcibly to board a pirate radio ship, whatever its nationality of registration, on the high seas (not only in territorial waters) and to arrest every single person on board, and which indemnify the boarders totally against any damage or injury caused in the process. That is a measure which we shall need to look at very carefully indeed during the Committee stage of the Broadcasting Bill.
Apart from new laws there is the matter of administrative action over which the Government have either control or influence. The action of the police in stopping cars travelling from county to county during the miners' strike seemed to many people to stretch police powers to the absolute limit, and possibly beyond. However, I suppose that it could have been defended as the lesser of two evils on the grounds that it almost certainly prevented a considerable degree of criminal damage, injury and even death. One has only to think of the unfortunate taxi driver who was killed by a concrete block which was dropped on him. The action of the police in stopping cars travelling to so-called acid house parties is more questionable since the action is aimed at a nuisance rather than at violence. The frequency of strip searches of young people returning from places such as Amsterdam still gives cause for considerable disquiet, particularly as drugs are found only in a tiny proportion of such cases. There is also the Cleveland scandal, although I am not sure whether the Government can be blamed for that.
Having said all this, would the situation be any better if Labour came to power, governing either on its own or in coalition with the Liberal Democrats or the SDP? The answer is almost certainly no. That is partly because Labour is not a libertarian party by instinct any more than are the present day Liberals, and partly because all political parties when in power tend to be more authoritarian than they are when in opposition.
It was amusing to hear the vehemence with which noble Lords on the Labour Benches opposed that part of the Law Reform (Miscellaneous Provisions) (Scotland) Bill giving police the right of almost unfettered entry to clubs, arguing as they did that clubs, particularly working men's clubs, were essentially private places. As the noble and learned Lord, Lord Hailsham, will remember, that is almost precisely the opposite of the stance that Labour took when in power. In 1976 the Labour Government took precisely the opposite line, arguing that clubs, and in particular working men's clubs, were essentially public places and must therefore be subject to the restrictions and obligations of race relations legislation.
918 Nor can one ignore the changed public mood, the Zeitgeist. Partly because of the declining birth rate, Britain is now a more middle-aged country than it was 11 years ago, both literally and to some extent in spirit. Caution, order and risk avoidance are the priorities now, not, I fear, individual freedom. The 1960s slogan "Do your own thing" is now wholly out of fashion, as is that very much older maxim "Live and let live", which might have been the motto of John Stuart Mill whose general precepts those of us in the Society for Individual Freedom try to uphold. Paternalism, even a very mild authoritarianism, is not now regarded with total disfavour by a substantial segment of our population, alas. Any incoming government, of whatever complexion, would, one suspects, be only too happy to take advantage of this prevailing mood among that substantial, but I hope not majority, section of the public.
In conclusion, the record of this Administration on civil liberties certainly leaves much to be desired. However, I very much doubt whether any foreseeable alternative administration would, on balance, do any better.
§ 4.29 p.m.
§ Lord Alexander of Weedon
My Lords, perhaps I may also thank the noble Lord, Lord Irvine of Lairg, for instituting debate on this important topic. The part of his speech to which I should like to add a little is the theme that he developed at the end which related to the question of whether or not we should incorporate the European Convention on Human Rights as part of our domestic law. Without the constraints of party discipline, I think that the noble Lord would have said unequivocally that he was in favour. Whatever the constraints of party discipline, I should like to express my own view in support of the incorporation of the convention, but I do so with a somewhat different emphasis from that of the noble Lord.
I would take a less gloomy starting point. I do not believe that overall this country has at the present time a bad record in terms of human rights or civil liberties, or however one describes them. There are many areas in which this country has led the way. The evolution of parliamentary democracy, the safeguards that apply to procedures at trial and habeas corpus are obvious examples. I do not believe that the vitality of that trend in our national character is spent.
An obvious recent illustration to which the noble Lord, Lord Hutchinson of Lullington, drew attention was the immense development over the past 20 years of administrative law. An independent judiciary has resurrected, shaped and expanded the right of the courts to exercise some considerable fetter upon the actions of the Executive. We have seen that right across the board in cases affecting individual rights and involving rates, transport, social security, education and immigration, and in challenges to national security issues. Our administrative law has now become an important aspect of our freedom. Not for nothing, and in my view accurately, did the late Lord Diplock describe it as the greatest development in the law in his lifetime.
919 The impact of those developments has gone far wider than decided cases because the law as it has evolved and the concern as to how the courts will look at decisions must be taken into account by the Government in reaching many important decisions across the board. That legal development has restrained the power of both Labour and Conservative governments. In each case, governments of both political complexions have accepted the development of that restraint, at any rate publicly, without protest or demur. The checks and balances within our democracy have evolved and have been accepted. I see that as a tribute to both the judiciary and to successive governments, not least the present Administration.
However, as with so much of our historical development, that evolution has been pragmatic. We have declined to incorporate in our own law what has now become our most important and influential constitutional document. It is now almost 30 years since we became the first country to ratify the European convention. As noble Lords well know, in many countries ratification automatically incorporates a treaty into the domestic law of that country; but that is not so in our law. However, we have regarded the European convention sufficiently highly to include it as the basis of the constitution of some 24 former colonies when they gained independence. We have taken a different view of what is needed by former colonies than we take of our own needs. That no doubt reflects the remarkable pervasiveness of Professor Dicey's view that written constitutions were necessary for less fortunate peoples.
We have also accepted the right of individual petition to the European Commission of Human Rights at Strasbourg since 1966. We therefore acknowledge the importance of the convention. We accept its impact. We accept judicial decisions upon it, but we decline to take the ultimate step of making it part of our own law.
The decisions of the court at Strasbourg have already had a notable impact. That has not least been so in cases which affect the rights of prisoners—a minority who carry very few political votes. Cases from Strasbourg have improved the freedom of prisoners to correspond without restriction. They have enhanced the access of prisoners to legal advice. The European Court will shortly consider the case of Michael Thynne and will decide whether a failure to provide for the periodic review of an indefinite sentence, to see whether a personality disorder still subsists, is a breach of the convention. That argument highlights an important issue dealt with admirably in the report of the Select Committee on Murder and Life Imprisonment: what should be the procedure for reviewing the duration of an indefinite life sentence? It is important that that procedure should develop so as to ensure an independent review, conducted under fair procedures, with reasons given for decisions adverse to the prisoner.
In the area of prisoners' rights, we must also work increasingly towards emphasising that imprisonment involves deprivation of liberty but 920 not human degradation and loss of other civil rights. In that regard—I very much hope that the Woolf Report on the Strangeways disturbances will prove an important and illuminating milestone—the European convention has proved that it has a role to play, and it has an important continuing role to play.
Why do we not then incorporate the convention? It may be because of a concern that it impinges upon the sovereignty of Parliament. It undoubtedly has the effect, unless it were enacted with the modification suggested by my noble and learned friend Lord Hailsham, that it would enable a court to declare legislation passed by Parliament in this country to be unlawful. However, although that sounds a startling proposition, perhaps we should reflect that we have in any event to some extent already accepted that principle. We accept that the court at Strasbourg can reach such decisions.
A few years ago I represented the present Government when they sought to defend legislation introduced under the previous government as being compatible with the convention. Both legislation which nationalised the shipbuilding and aircraft industries and legislation which provided for leasehold enfranchisement were involved. In each case, the applicants sought to challenge the legislation head on. The argument was heard by the European Court of Human Rights and in each case was determined in favour of the Government. However, if it had gone the other way, precedent suggests that the Government would have respected and implemented the decision of the court.
If we accept that legislation can be challenged under the convention before the Strasbourg court, would it not perhaps seem sensible that we should allow the issue to be considered by our own domestic courts? We can surely commit the issue to our judges. I do not believe that that would politicise the judiciary. The fact that it has been involved in essential social questions in determining issues of judicial review has not for the most part led to anything other than enhanced respect for the wish and determination of the judiciary to uphold the individual against excesses of government power.
I do not want to suggest, perhaps especially in this Session, that incorporation of the convention is urgent. I certainly do not wish to suggest that it should be added to the burden of legislation in this current Session. It has in one sense become less urgent because of the willingness of the courts to interpret and shape our law in the light of the provisions of the convention.
However, there remain concerns that the sovereignty of Parliament alone is not a sufficient protection for all our citizens. There is a danger that, as I believe my noble and learned friend Lord Hailsham once described it, Parliament has increasingly become an elected dictatorship. Our society increasingly comprises minorities whose interests may not have enough widespread appeal or, to put it crudely, sufficient voting pull for them to be effectively protected in Parliament. The convention contains a framework within which our civil liberties and rights can be safeguarded.
921 I am encouraged by the speech of the noble Lord, Lord Irving of Lairg, to think that the party opposite may shortly reach the view that it is high time that this charter for the protection of the citizen should become part of our domestic law. I look forward with interest to the contribution of the noble Lord, Lord Mishcon, with his well-known and highly developed concern for individual rights. I should like to see my own party reach the same conclusion so that this important constitutional safeguard could be enacted into our law with broad cross-party support. I do not see it as a convention simply necessary at the time when the world emerges from the dark night of the excesses of law.
I see the convention as a reasonable expression of what is to be a fair balance within society: the balance between individual liberty and the rule of law; the balance between freedom of expression and individual rights to privacy; the balance between individual liberties and the need of the Government to preserve public order. I would consent to all those questions being adjudicated under the convention. It is a highlight of mature democracies that they wish to patriate and shape the development of their own constitutions. I hope that the time will shortly come when we, as the most mature of democracies, long alert and still alert to civil liberties, will decide that it makes elementary and obvious sense to patriate what is already our most important and relevant contemporary constitutional document.
§ Lond Monson
My Lords, before the noble Lord sits down, and since we have a few moments in hand, perhaps I may put one question to him arising from his very interesting speech. Does he not agree that one problem of the incorporation of the European convention into our law is that the convention was drafted at a time when Europe was much more left-wing than it is today? It therefore does not sufficiently protect property rights: hence the court's decisions in the aircraft and shipbuilding nationalisation and leasehold reform cases. In that regard the European convention, I think he would agree, is somewhat defective.
§ Lord Alexander of Weedon
My Lords, I should like to call upon my noble and learned friend Lord Hailsham to lead me on my response to this issue. My impression is that the convention contains protection for rights of property. But it also contains a margin of appreciation to the domestic government on how those rights shall be balanced. That is reflected in the decision in the aircraft and shipbuilding nationalisation case. It was illustrated by that case when the Bill was before Parliament. If I remember rightly, the present Government were then in opposition and opposed the passage of the Bill because they believed that it was inappropriate and, as a matter of domestic politics, did not sufficiently protect property rights. However, when the issues came before Strasbourg the Government recognised that a larger issue was under consideration: the right of government and parliament within a particular country to draw the balance in that area. They therefore upheld the principle under the convention.
922 I believe that the flexibility that is given within the convention enables the individual courts applying it to shape the limits of the proper protection of property, and to evolve those limits as befits the tenor of thought within any period.
§ 4.47 p.m.
§ Lord Monkswell
My Lords, at this stage one wonders whether one is in Committee or a debate. I too should like to thank the noble Lord, Lord Irvine of Lairg, for introducing this topic. The headline of my contribution has to be, "Put not thy trust in princes". That is the thrust of a number of contributions: that we should incorporate the European convention or the universal declaration of human rights into our legislation and leave it to the judges to protect us from all ill.
I approach the problem from the point of view of the individual, and of democracy being essential to the preservation and protection of civil liberties. The subject of the debate is the state of civil liberties under this Administration. There are a range of areas where civil liberties have come under attack and threat. Perhaps I may touch on one or two.
The first relates to information. How are we to determine the state of our civil liberties if we do not know what is going on in our society? It is interesting to ponder that the United States is not prepared to allow large chunks of its media to be under the control of people who are not citizens of that country. Yet we are prepared to see the control of large chunks of our media, which provide information to our citizens, under the control of people who are not citizens of this country. They are people who owe no allegiance to our country or to the citizens who live in it. We are prepared to accept that they will provide the information to our citizens on which those citizens base their decisions. That is one of the most fundamental factors that we need to question when considering the perfection or otherwise of the state of civil liberty.
The second concept concerns freedom of association. I argue that freedom of association in terms of civil liberties is essential. The ability of people to come together, to associate together, to pursue a common aim, is important for the freedom and civil liberties of our citizens. This Administration must face questioning on that aspect in relation to their actions. Perhaps I may mention a few examples. Shortly after I came to this House we debated the 1985 Local Government Bill, now an Act. It effectively destroyed swathes of local government in our country. It destroyed the Greater London Council and the metropolitan county councils which had been in existence for only 10 years.
Democracy and the ability of people to come together and to work together is a fragile flower. It takes time to be nurtured—for people to come together to agree upon actions, and for those actions to take effect. Ten years after the inauguration of those local authority organisations this Administration destroyed them. In the process of doing so, they destroyed their political opposition in those organisations because every one of them was controlled by their political opponents—the Labour 923 Party. However, far more importantly, every one of those organisations—the GLC, the Greater Manchester Council, Merseyside County Council and South Yorkshire County Council—under the control and administration of the Labour Party was an organ of democracy. They were implementing the policies that had been agreed by the people in their localities on what should be done in those local administrations. It was a great attack on the civil liberties of people living in those areas.
The vast majority of the population of this country was affected by those actions. This Administration effectively destroyed the civil liberties of the majority of the population of this country by destroying those organs of local government which epitomised the freedom of association of those people.
Another aspect of which this Administration is guilty is the denial of individual freedom. I am not talking about the freedom of rich people to become richer. Indeed, almost the only issue that this Administration have promoted is the ability of rich people to become richer. I am talking about the ability of ordinary people in this country to go about their business and to do what they want to do as individuals free from the threat of intimidation, arrest and harassment by the state. That ability has been curtailed by this Administration.
I was interested to hear the contribution of the noble and learned Lord, Lord Hailsham. He described freedom as being freedom under the law. That phrase has a nice ring to it until one begins to ask: whose law and what law? Is it the law of the rich and powerful—
§ Lord Hailsham of Saint Marylebone
My Lords, I do not believe that the noble Lord is doing me justice. I defined what I said as just laws enacted by a freely-elected Parliament. I hope that the noble Lord will not do me the injustice of pretending that I meant something else.
§ Lord Monkswell
My Lords, I am grateful for the noble and learned Lord's contribution. However, I bring to him the realisation that we are the other Chamber in a so-called democratic Parliament. It is a Chamber which has no concept of or part in democracy, apart from the way we vote when reaching decisions.
§ Lord Somers
My Lords, the noble Lord spoke of the rights of people to pursue their own business. In the town in which I live countless small businesses have disappeared not due to the policy of the Government but due entirely to the actions of local government.
§ Lord Monkswell
My Lords, I thank the noble Lord for his contribution. I am not sure how it pertains to our debate, which is to call attention to the state of civil liberties under this Administration. I am attempting to point out that virtually all the actions of this Administration seek to ensure the ability of rich people to secure their liberties at the expense of the vast majority of people in this country in securing their civil liberties as individuals and collectively.
924 Another example of the curtailment of civil liberties is the Prevention of Terrorism Act. The Home Secretary who introduced the Act in 1974 described it as draconian. At that time it was subject to annual parliamentary review because it was so draconian. This Administration have written it into the statute book as part and parcel of our legislative baggage with no opportunity for Parliament to review it on a yearly basis. That epitomises the state of civil liberties and the way that they have sunk under this Administration.
There are innumerable examples, one of which we had as recently as last year. The Local Government and Housing Act 1989 curtailed civil liberties yet again. Until then anyone working in local government could stand for election as a representative of the people. For 100 years or more there was never any question of people in local government being ineligible to stand as elected representatives of the people. Yet that Act introduced by this Administration—and I hope that noble Lords will listen carefully—effectively curtails not just the civil liberties of the individuals restricted from standing for election but those of everyone in this country because it denies people the ability to elect those whom they want to represent them. That is the important issue. While the Government seek to project the image of curtailing the civil liberties of minorities here and there they are in reality curtailing the civil liberties of everyone in this country.
§ 4.56 p.m.
§ Lord Beloff
My Lords, I thank the noble Lord, Lord Irvine of Lairg, not only for having brought forward this interesting subject for debate but also for giving the House such an extraordinarily able presentation of the reasons why some noble Lords on the Benches opposite are removed from the feelings of the mass of the electorate. I could not believe that he was serious when he began by quoting Professor Dworkin. I do not suppose that the name of Professor Dworkin is familiar on the streets of Bootle where the electorate's temperature is being taken at the moment.
§ Lord Beloff
My Lords, if I may coin a phrase, he is the epitome of what New Yorkers style "radical chic". His belief that this country is suffering under some extraordinary, tyrannical government is so remote from reality that I was surprised that the noble Lord began his speech in that way.
However, it illustrates one of our existing problems which is related to the European convention. It is our tendency, naturally enough, to look at the disadvantages of our society, whether social or juridical, and to assume that things are better elsewhere. For instance, the problems about the rights of the accused in legal cases and so forth were rightly presented to us by the noble Lord, Lord Hutchinson. However, as soon as a British subject is arrested in Spain, France or Greece, we suddenly 925 find that many of the issues that we regard as being outrageous and as covered by most international conventions occur as a matter of course because those countries have a different way of looking at them. As was pointed out by the noble and learned Lord, Lord Hailsham, we, like other countries, have issues of differing importance which must be weighed against each other.
The speech of the noble Lord, Lord Irvine, drew up the now familiar and bedraggled cast of Miss Tisdall, Mr. Ponting and other characters who flitted across the stage not always to their own advantage. Again, such characters are of no great interest to most people because on the whole they believe that people should keep the confidences entrusted to them. On the whole security of the country is regarded as having a great deal of importance.
If asked about civil liberties most people would believe them to be something much more primitive than freedom of speech or association. I see that the noble Lord, Lord Monkswell, has not shown me the usual courtesy of waiting for a reply, but I must point out to him that nobody is prevented from standing for election if he is an officer of local government. The Act prevents the holding of a post which is intended to be a full-time post of employment in one local government authority while being a member of another. That is different, and again I do not believe that there is the sense of outrage which the noble Lord professes to feel.
However, there are anxieties in this country about civil liberties and the main anxiety is simple. It is about the right to life and limb and not to be harassed. I particularly refer, as have other noble Lords, to minorities who may not have the opportunity to present their case fully in Parliament or elsewhere. Harassment largely comes from other private citizens. In other words, what we lack in this country to some extent is a system of protection.
Only today the Metropolitan Police has announced that it needs to take further and stringent measures to prevent the harassment of Bangladeshi, Pakistani and other citizens in this country. However, that cannot be done if it is told that the rights of anyone else may not be restricted, because the right to abuse other people or other groups and the right to harass them are matters which in their turn have to be checked. One could very well argue that we are in a period in which we must accept restrictions on civil liberties, as defined by the noble Lord, Lord Irvine of Lairg, in order to preserve liberties of life and limb and the feeling of day-to-day security, which most people would put first.
That is equally true—this has been mentioned by other noble Lords—as regards the struggle against terrorism. You cannot deal with terrorism as a phenomenon which does not and may not demand exceptional measures. Most people in this country would regard the Prevention of Terrorism Act and the procedures deriving from it as perhaps regrettable, but as compared with the deaths of innocent servicemen and civilians they would regard those curtailments of the liberties or privileges of certain individuals as of lesser importance.
I think that the point was made by the noble Lord, Lord Irvine—and I apologise if it was another noble 926 Lord—about Mr. Salman Rushdie, who is much in the news. Clearly it is desirable—and this is generally felt—that Mr. Rushdie's right to publish his rather inferior fiction should be preserved, as should the right of his publishers to publish. Indeed, it is a blot on our society that a citizen who has done no more than exercise normal rights or civil liberties, as defined by the noble Lord, Lord Irvine, should be living in fear of his life and unable to lead the normal life of an ordinary person.
However, what should we have done if we believe that protection must go to the ultimate extent? There should have been a prosecution of those in this country who had publicly demanded his removal by assassination. When this subject was raised we were told by noble Lords on the Front Bench that the evidence was not available for a prosecution. Considering that one of those threats was made at a meeting attended by the right reverend Prelate the Bishop of Manchester—one would have thought a very good witness—it is surprising that that view was taken. It may well be that the Government considered that it was better to do nothing and to permit a rather unusual open appeal to assassinate a British citizen because other considerations arose on race relations which made action more dangerous than inaction. I do not know. This is not a debate on that subject.
However, I reiterate the importance—here I merely follow my noble and learned friend Lord Hailsham—of looking at the matter initially from the point of view of the ordinary citizen, particularly the ordinary citizen who by reason of belonging to a minority or for other reasons may be underprotected. We must consider what protection can be given which causes a minimum departure from our traditional legal system. That is not something which can easily be solved by the kind of people like Professor Dworkin who read the New Statesman or write letters to the Guardian because that is not representative of the ordinary citizens of this country but is a particular form of elite—one might say the scribblers' elite.
Many noble Lords have said that democracy should inspire us. Democracy certainly starts by respect for the individual. Here it is very difficult to understand—and again difficult to reply to Banquo's ghost—what was meant by the noble Lord, Lord Monkswell, in respect of freedom of association, because that is normally thought to be voluntary. The metropolitan counties may or may not have been good but they were not voluntary associations. They were organs of government created by one parliament and, rightly or wrongly, removed by another. In other words, we must not become muddled into considering aspects of the machinery of government when we are trying to solve extremely difficult problems and problems which I have no doubt this Government have not solved perfectly. However, as the noble Lord, Lord Alexander, pointed out, other governments in the past have not done so, nor, as the noble Lord, Lord Monson, rightly pointed out, will governments in the future.
We must not select foreign examples. Indeed, the United States has a panoply of protections which no 927 doubt give Professor Dworkin and other American lawyers a great deal to go on. No one, looking at the condition of some American metropolitan areas, would say that Americans are less in fear or enjoy greater rights than the citizens of our own country. If you were asked whether you would prefer to live in Tower Hamlets or the Bronx, I suspect that the answer would be quite unequivocal.
Let us consider what we have in this country. Let us try to amend it. However, do not let us begin by fantasies about a government determined to be tyrannical.
§ 5.10 p.m.
§ Lord Mishcon
My Lords, free from all constraint I immediately plead with the House for the right of freedom of reply for Professor Dworkin. That is a freedom which unfortunately he does not enjoy in spite of the remarks made by the noble Lord, Lord Beloff.
It is appropriate in regard to both time and place that the debate initiated by my noble friend Lord Irvine of Lairg should take place in the House of Parliament, the protector of the freedom of the subject, whether one calls it civil rights, freedom under the law, or whatever. How appropriate it is in regard to time, because those freedoms must be protected by being examined periodically and not too infrequently. As has been said on many occasions, our freedoms are counted on the basis of the vigilance that we keep in order to protect them.
There was a complaint made by the philosopher, statesman and lawyer who bears the name of the noble and learned Lord, Lord Hailsham of Saint Marylebone, whose voice, whether or not accompanied by a chuckle, we in this House always love to hear. His complaint was that the Motion initiated by my noble friend had a political touch. The title is: "Debate to call attention to the state of civil liberties under this Administration". The Administration has been in being for a long time. I suppose one could have said that it was to call attention to the state of civil liberties during the past decade. I am sure that my noble friend Lord Irvine of Lairg would have been content with that. I am certainly content to look at things over the past decade, trying to forget which government may have been in power.
If brickbats of a gentle nature can be thrown by the noble Lord, Lord Hutchinson of Lullington, at a past Labour Administration, and if lessons need to be learnt by a Labour Government as well as a Tory Government, let us combine, learn the lessons and be sensible about it without trying to score political points on either side.
If that be right, perhaps we can look at the situation over the past 10 years and not be too sanguine in so doing because we are discussing a solemn subject. It may be right to say that it is nicer to live in Tower Hamlets than the Bronx. It is perhaps possible to say that there are parts of the Bronx which are better than parts of Tower Hamlets and parts of Tower Hamlets which are better than parts of the Bronx. However, we will not get very far in that regard.
928 I listened attentively while the noble and learned Lord, Lord Hailsham, spoke of his American ancestors. He said that he hoped that he was not being too rude to the Americans when comparing our state of civil liberties with theirs. I immediately searched in my papers for a transcript of a lecture delivered by a very fine American lawyer. Floyd Abrams, who gave the Granada Guildhall lecture in November 1984. The House may be amused, in view of our comparisons with what exists in the United States, by what the Americans think of us. I should say in advance that the lecture was chaired by the late Lord Elwyn-Jones, whom so many of us miss. He put Mr. Abrams right.
In the lecture Floyd Abrams said:A good deal of what I do in my country as a lawyer relates to your country: let me phrase it as candidly as I can. What I do is to seek with all my power to dissuade our legislatures and courts and citizens from looking to your country as a model for us to emulate as we continue to define and redefine precisely what the unadorned words of the First Amendment to the United States Constitution—'Congress shall make no law abridging freedom of speech or of the press'—mean.And so, I urge upon our courts that we are different from you, that, as Mr. Justice Hugo Black observed for the United States Supreme Court in 1941: 'No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly and petition than the people of Great Britain ever enjoyed'.".
I close the quotation, and so far the score is: United Kingdom and United States, one-all. I do not think that it does much good to talk in terms of contrasts and comparisons. However, it was right to point out, as was pointed out in the debate, that when we consider human rights and the European Convention on Human Rights—which we ratified in 1951 and which came into force in 1953—in fact we were found to have breached that convention more times than any other European state.
§ Lord Hailsham of Saint Marylebone
My Lords, perhaps the noble Lord will allow me to intervene. Has it not occurred to him that the reason for that is very simple? We have not incorporated the jurisprudence of the European convention into our own law because it is a fundamental principle that one cannot go to the European court until one has exhausted the local remedy. The reason we have been arraigned before the European court is that one can go from this country straight to the European court without going up the staircase of local remedy. That is exactly why my noble friend Lord Alexander and I said what we did in our respective speeches.
§ Lord Mishcon
My Lords, I appreciate that comment but it does not answer the point. One must assume that if the European convention had been incorporated into our law our courts would have found, in exactly the same way as the European court—unless one is offensive to their judges—that there had been more breaches than were reported to the European court. I agree that other countries may have local courts to deal with those breaches, but there are a great number of breaches of human rights which have been found to be so by the European court. If that be so none of us must sit back and be content, especially in the face of another statistic mentioned in this debate. On over 80 occasions either our legislation or regulations have had to be 929 altered because they were found to be in breach of the European convention.
All that I am endeavouring to say is that we must not feel so superior in the way we protect human rights that we think there is no need to conduct debates to enable us to look at ourselves over the past 10 years and see if things cannot be better over the next 10 years, whichever government happen to be in power. My prayer, quite obviously, is in one direction and your Lordships will know what that is.
What is the state of the way in which we legislate regarding information? Again, that was a point touched on in the debate. All our legislation appears to be for the protection of information and not the giving of information. That is why very of ten in this House there has been a plea, certainly from these Benches and sometimes taken up by the Benches next to ours, for legislation which tells the subject what he is entitled to know and look at among government papers.
What can be wrong with legislation of that kind? All that we have been debating over the past 10 years is some sort of amendment to Section 2, the infamous Section 2; so that what we have been able to do, still, is to protect information, very largely, and to ensure that some part of the imparting of information which was deemed to be confidential is not necessarily a part of our criminal law. But what about the rights of people to knew what is happening?
I turn from that to our security services. I pay tribute from these Benches on behalf of the party to those who in the security services take many brave actions in order to protect the security of our nation; but what about some of the scandals that have occurred as a result of the fact that there is no proper democratic supervision of that service? We have spoken about the Home Secretary and all said what a busy man he is with all his multifarious departments and wondered how he can possibly supervise the security services and their activities in a proper way; is it right, in any case, for one Minister to be responsible?
Only so that your Lordships get the feel, not necessarily of cases over the past 10 years that have been very properly referred to—Ponting and the rest—I mention a very interesting publication called Application Refused. I found it in the Commons Library. This book was sponsored by the Civil Liberties Trust. The foreword to that book interested me. It was written by someone who, as she says, is complexly non-political. She writes:In Britain, since I have never been a political militant, I dismissed the stories of tapped telephones and mysterious burglaries that circulated amongst the far left as evidence of the ubiquity of the British secret service as either paranoia or self-aggrandisement.And then it happened to me. What happened to me has happened to up to one million people, but most of them don't know it. I only found out about it through a combination of coincidence and the diligence of another journalist. He had investigated vetting by MI5 of job applicants to the BBC, a practice which had begun perhaps with justifiable reasons but which had grown into a political screening system that would not have shamed a totalitarian regime. My own application to the BBC had seen vetoed by MI5 on the grounds that I was briefly the secretary of an organisation called Scotland China Association, a 930 body that counted amongst its luminaries several distinguished academic sinologists and a sizeable handful of former missionaries, including the Dean of the Faculty of Divinity of Edinburgh University. A less subversive body it would be hard to imagine and yet, ten years later, the British government stated in its defence to the Commission of the European Court of Human Rights that it still considered the veto to have been justified.Like many other people, I had been judged by persons unknown, on evidence that I was never allowed to see, in a process of which I was meant to remain ignorant, a process which by the most basic standard of justice is an outrage".That is the sort of invasion of civil rights that is much more pertinent, if I may be allowed to say so, and much more dramatic than those which have been established in courts of law and have caught the front pages of newspapers, however worthy it may have been to quote those cases—and it is proper that they were—this afternoon.
That example gives the picture of the ordinary subject, not the servant of the state, who finds the whole machinery absolutely oppressive in regard to obtaining employment and the instrument which interfered with it not supervised by any democratic machinery.
Therefore, if my party says (here I am speaking politically) that we should have a right of information Act, that we ought to have—with great respect to all the fine work done by MI5—some sort of democratic supervision of that organisation, am I not asking for an improvement which we all want to see, regardless of party?
I conclude on one other note. I cannot help, as a lawyer, speaking in terms of what may be happening to our law and our criminal law. The noble Lord, Lord Hutchinson, dealt with this matter—as usual very effectively. We keep hearing suggestions in this House and in the other place from certain quarters about doing away with the jury system in certain classes of cases and, as the noble Lord, Lord Hutchinson, reminded us, suggestions about doing away with the right of silence. After all, it is said, why should not people be made to say why they are innocent, and should there not be an inference of guilt from the fact that they remain silent?
I cannot help but repeat to this House the words of one of the most renowned of our judges, Lord Devlin. I hope his words in regard to civil liberties will always be remembered. He said:I hope the day will never come when the right to silence is denied. We afford to everyone suspected and accused of crime at any stage the right to say 'Ask me any question and I shall answer none. Prove your case'".So often, I say again, this right to silence is queried and the abolition of jury trial in certain classes of cases spoken of as being a possibility, and even recommended in the report of one of our worthy and learned judges. I believe that would be the start of no juries in any case.
Those are invasions of rights and liberties and they lead me to my final remarks. I make them only because the noble Lord, Lord Alexander, with his usual courtesy, suggested that I might say something from this Front Bench on the subject. I can never ignore a request from the noble Lord—provided it is a reasonable one. I refer to where one stands on the incorporation of a European convention into our 931 law. I say from this Bench that most interesting and persuasive remarks have been made in this debate about that subject. I and my noble friend Lord Irvine will ensure that what has been said in this debate will be communicated to those in my party who are in charge of policy. What was said will be carefully considered and it is most likely that it will have great influence. It has been a pleasure to sum up this debate which was so well moved by my noble friend.
§ 5.30 p.m.
§ Viscount Ullswater
My Lords, I am grateful to the noble Lord, Lord Irvine, for raising what has proved to be an interesting and stimulating topic in debate and for the thoughtful approach he brought to such a wide and complicated subject. There can be few matters as important and deserving of debate in your Lordships' House as this. I am grateful to other noble Lords who contributed and I hope to touch on most of the points raised in the time allowed.
It seems that the debate has turned on three main areas. First, we have the argument that basic freedoms have been diminished during this Government's term of office. Secondly, there is the question of the proper balance to be struck between the liberties of the individual on the one hand and the rights of others and the general public on the other. Thirdly, there is the issue of how civil liberties are protected under our present constitutional arrangements. These three areas are of course interlinked, but, with your Lordships' permission, I should like to look at each main area in turn.
Needless to say, I cannot accept the erosion of freedom hypothesis put forward by the noble Lord, Lord Irvine. I believe that his argument presents an altogether misguided picture of the true situation. Under this Government there has been a very real and worthwhile extension and enhancement of civil liberties. I hope I shall be able to persuade your Lordships that the Government's record bears close scrutiny and emerges with credit. As a Government we have set great store by the extension of economic freedoms because we believe that civic rights are much better extended under a prosperous economy. Our actions aimed at deregulation and the freeing of economic life have produced enormous benefits, increased productivity, lower taxes and more disposable income in real terms.
I believe strongly that reducing taxation gives the individual the freedom to spend his hard-earned money in the way he wants rather than the state saying where the money will go. Our guiding principle, therefore, is not materialism but a realisation that freedoms can only but be enhanced by increasing economic prosperity. Economic freedom is important. We have taken, for example, action against the closed shop; we have given trade union members the right to be balloted before any industrial action; and we took resolute action against secondary picketing. We on these benches view with utter dismay the fact that the Labour Party wants to relegalise secondary picketing.
There was precious little freedom under the last Labour Adminstration at factory gate strike meetings, and I am sure your Lordships will recall 932 all too many an ugly scene involving intimidation by mass pickets. As your Lordships know, we are currently taking action in another place to end the practice of wildcat strikes, among other things. Where we think it right to give further protection to the public and indeed the ordinary employee, we will not hesitate to act.
We have taken action to give council tenants the right to buy—a measure which has since received grudging Labour Party support. Action which extends economic freedom has helped many ordinary citizens to do what would never otherwise have been possible. I shall give other examples. The Sex Discrimination Act and the Equal Pay Act are very important examples of the extension of individual liberty. We have put the Data Protection Act in place. We have given access to educational records and certain medical reports.
The Opposition are much concerned about police powers. But it was this Government who set out a new framework in the Police and Criminal Evidence Act which gave added safeguards for the citizen and for dealing with complaints against the police. We have given a statutory right to compensation for victims of violent crime, which is a measure that commands all your Lordships' support.
The noble Lord, Lord Irvine of Lairg, made much reference to the official Secrets Act, quoting the cases of Tisdall, Ponting and others in some detail. The previous Labour Administration were taken to task by the noble Lord, Lord Hutchinson, in his characteristic and well-argued contribution. As regards official secrets, the reform we introduced was radical and now only six types of official information are protected. In general, it is for the prosecution to prove that specific form of harm defined in the Act arose or was likely to arise from disclosure. It will also be for the prosecution to prove that the accused knew or had good reason to believe that harm would occur, except in the case of those treated under the Act as Crown servants. Under the 1989 Act the number of people prescribed as Crown servants has been greatly reduced, from an estimated 500,000 to an estimated 27,000.
We have made provision about the interception of communications, with the appointment of a commissioner, and for complaints to go to an independent tribunal. The security service has been put on a statutory footing, again with provision for the appointment of a commissioner and for complaints to go before an independent tribunal.
I must tell the noble Lord, Lord Mishcon, that it is proposed that Labour would pass a security service Act bringing MI5 and MI6 under the general supervision of a Standing Committee of the House of Commons which would oversee their activities. That would bring the security services under political control, allowing politicians to influence operational decisions, despite the fact that no Western democracy exercises parliamentary scrutiny over the operational decisions of its security services.
§ Lord Mishcon
My Lords, I know that the noble Viscount, with his usual courtesy, will allow me to intervene. It has been made absolutely clear that the current operational work of MI5 would not be within 933 the ambit of any such committee. It would be the general supervision of MI5 in regard to policy matters but certainly not in regard to its day-to-day activities.
§ Lord Monkswell
My Lords, is the Minister saying that the current state of affairs is that the Prime Minister cannot ask the security services to provide her with information about a particular subject of concern to her?
§ Viscount Ullswater
My Lords, I am developing a theme and I believe that I should go on with it.
The noble Lord, Lord Hutchinson, complained about the Courts and Legal Services Bill. The administration of civil justice is being reformed and will improve access to justice for the public by speeding up, simplifying and reducing the cost of proceedings, which are important benefits.
I must tell the noble Lord, Lord Mishcon, that the Government are committed to openness in their processes. We now make as much information available as possible while preserving the principle of confidentiality that is essential for the effective working of government. Under this Administration there has been a considerable increase in public consultation, very much more briefing for the media and the publication of research and evaluation papers; and the Select Committee system has produced important benefits.
Many more examples could be given. I think, however, that I have made my point. Our record is one of very positive achievement in extending and enhancing civil liberties. The noble Lord, Lord Mishcon, said that freedoms are counted by the vigilance we use to protect them. I agree with him and I believe that this Administration have been vigilant and protective.
I now turn to my second theme, the question of balance. The Government are fully committed to ensuring that the people of this country know their rights end that they are not infringed. That does not of course mean that those liberties can always be unqualified. That is because all governments have a duty to make a judgment of the rights of the individual as well as of society at large and of the conflict of rights between various groups in society. This is not always an easy task, but it is one which this Government have not sought to avoid.
I do not mind that IRA terrorists can travel less easily to and from Great Britain as a result of powers taken to prevent terrorism. Those powers are essential for the defence of ordinary law-abiding people, as, I am sorry to say, are other powers that the noble Lord, Lord Monskswell, and perhaps the Labour Party would like to see revoked.
Nor do I mind the curtailment of the liberty of a young man to carry a knife in his pocket; nor the fact that, should he appear in court, the burden of proving why he was carrying the knife now rests with him and not the prosecution. We are conscientious and meticulous in looking at issues of individual 934 freedom. I must tell the noble Lord, Lord Monson, that where we decide to increase or diminish freedom we do not do so lightly or without clear evidence of need. Where the protection of the public has needed limited and well-defined reinforcement, we have provided it and will continue to do so.
My noble and learned friend Lord Hailsham brought his characteristically incisive intelligence to bear during the debate. He was right to remind us that the greatest threat to freedom stems from criminality, violence and terrorism. It is fundamental to our way of life that the citizen should be able to live his life free from harm and fear. My noble and learned friend called it the optimum level of freedom under law. I agree with my noble friend Lord Beloff that if that means curbing in some way the liberties of the evil-minded or irresponsible few, then that is what has to be done, and I make no apology.
I turn now to my third theme, how civil liberties are protected under our present constitutional arrangements. We heard the suggestion from the noble Lords, Lord Irvine of Lairg, Lord Hutchinson of Lullington and Lord Mishcon, that civil rights would be better protected if civil liberties were enshrined in a Bill of Rights. Civil rights are already protected in our legal systems and by statute and are in far more precise terms than, for example, in the European convention, which most proponents of a Bill of Rights would like to incorporate in our domestic law.
Incorporating the European convention would mean that the courts rather than Parliament would determine society's needs. That is no reflection on the impartiality of the judiciary. Rather, it is a reaffirmation that it is for Parliament in the exercise of its sovereignty to decide. We do not doubt that ability of the judges, but we believe that requiring them to undertake such tasks would propel them into the political arena. One has only to look to the United States to see that the two most important criteria for appointment to the Supreme Court are the candidate's social views and his or her political opinions. There is no evidence that the general public favours either a written constitution or a new Bill of Rights. The Government therefore believe that until consensus as to such a need emerges, the present adequate safeguards should remain.
My noble friend Lord Alexander of Weedon said in a fine speech that checks and balances have evolved. Rights are protected in this country by public opinion, by parliamentary responsibility and accountability and of course by judicial review, and the Government see no need for the radical changes suggested. My noble friend Lord Beloff summed it up by saying that we have the tendency to look at disadvantages and assume that things are better elsewhere.
In the short time left I should like briefly to refer to the Labour Party's proposals in this area. It seems that Labour intends that your Lordships' House shall be abolished and replaced by an elected second Chamber which would be able to delay repeal of legislation affecting fundamental rights for the whole life of a Parliament. That way, it says, the electorate will decide at the next election on those questions 935 of liberty proposed for abolition. What, I wonder, does it propose to abolish?
That is a prescription for muddle and confusion. On what basis will the second Chamber be elected; and what reason is there to think that its political composition would be much different from the other place? Would the second Chamber have the independence and political will to set itself against the other place? There are too many grave constitutional dangers in what Labour proposes.
The Government believe that the real intention of the Labour Party has nothing to do with civil liberties whatsoever. We believe that its real intent is to remove all constraints on the power of the other place. It would indeed be what my noble and learned friend Lord Hailsham has called an elective dictatorship.
We have sounded the alarm bells, and I hope that the nation will heed them. To the noble Lord, Lord Irvine of Lairg, I would end by saying:Liberty is well in England".
§ Lord Irvine of Lairg
My Lords, I am grateful to all noble Lords who have contributed to the debate. It has been light in the number of contributors but heavy in the weight of the contributions it has attracted. I assure noble Lords that I accept that our comparative international standing in upholding liberty is high. The best guardian of liberty, however, is, as my noble friend Lord Mishcon said, vigilance. That, I am sure, is what Professor Dworkin was essentially saying in words that I commended and commend to your Lordships' House, despite what the noble Lord, Lord Beloff, said when addressing your Lordships so characteristically on behalf of the man on the Clapham omnibus.
Liberty is not lost overnight, but liberties can be lost piecemeal when other more ephemeral interests are allowed to override liberty. Then, after a period of years, we wake up too late to an appreciation that liberty has seriously diminished. My purpose in moving this Motion was to call attention to the risk of our ceasing to be, due to the events of the last decade, at the very frontiers of liberty where we ought to remain. I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.