§ 8 p.m.
§ Baroness Blatch
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Human Rights Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
§ Lord Lester of Herne Hill
My Lords, I beg to move that this Bill be now read a second time.
The purpose of the Bill is to incorporate the rights declared by the European Convention on Human Rights and by the First Protocol to the Convention into the law of the land. The Bill authorises British courts to provide speedy and effective remedies to the victims of breaches by the public authorities of the United Kingdom. It gives practical effect to the European principle of subsidiarity and to the domestic remedies rule. That is what was intended by the makers of the convention. It requires judgments to be made locally by our own courts before recourse may be had internationally to the hugely overburdened European Commission on Human Rights and European Court of Human Rights.
In introducing the measure, I am following the path of many remarkable Members of this House over many decades: notably Viscount Samuel, the Earl of Arran, Lord Wade, Lord Broxbourne and the noble and learned Lord, Lord Scarman. I walk in their footsteps with gratitude and humility. I am very sorry that the noble and learned Lord, Lord Scarman, is unable to be present for tonight's debate because Lady Scarman is seriously handicapped by illness. The noble and learned Lord has given wise and inspiring leadership to the movement for constitutional reform for 30 years and has asked me today to express his strong support for the Bill.
The convention is the jewel in the crown of the Council of Europe. It reflects universal human rights and freedoms, as well as duties and responsibilities. It owes much to British legal drafting and much to the philosophy and values of British thinkers of the past three centuries—ideas and values bequeathed to us by Edward Coke, John Locke, John Milton, William Blackstone, Tom Paine and John Stuart Mill as part of our precious heritage. The convention's makers also drew upon the English common law tradition, including the ancient writ of habeas corpus, and the great British constitutional charters which are our birthright: the Great Charter (the Magna Carta), the Petition of Rights, the English Bill of Rights, the Scottish Claim of Right and the Act of Settlement. 1137 The convention has been ratified by 30 European states. By this summer all but two of the 30 states—the United Kingdom and Ireland—will have incorporated convention rights directly into their national legal systems. Sweden has done so recently and Norway is doing so. All other contracting states, including Ireland, also have constitutional Bills of Rights defining state power and protecting the individual citizen against the tyranny of majorities and the misuse of government power by public officials.
Even though it is not part of our law, the convention is well known in this country as an important means of protecting civil rights and liberties against the misuse of the powers of public authorities of the state. That is because of the many well-publicised and significant cases in which the United Kingdom has been found by the European Commission and Court of Human Rights to have breached the convention. In the absence of effective domestic remedies, there have been more findings of serious and significant breaches of the convention by the UK than by any other contracting state.
The relevant convention provisions are contained in the first schedule to the Bill. I shall not attempt to summarise them. The UK was the first state to ratify the convention on 8th March 1951. The convention came into force on 3rd September 1953. Since January 1966, successive governments have permitted alleged victims to have recourse against the UK to the European Commission and Court of Human Rights.
The Cabinet papers which I have read show that in 1950 Lord Chancellor Jowitt regarded it as axiomatic that the Attlee Government would have to introduce a measure to incorporate the convention's rights into domestic law as a necessary consequence of ratification. However, for the past 44 years since ratification successive governments have refused to do so, compelling our fellow citizens to take the long and costly road to Strasbourg instead of obtaining speedy and effective redress from British courts. Successive governments have refused to have their considerable powers limited by law or judicially reviewed against the standards of the convention.
Again and again, the European Commission on Human Rights and the European Court of Human Rights have had to deal with UK cases because of the absence of effective British remedies. Britain's dirty linen has been washed slowly, expensively and inefficiently in Strasbourg, much of the fabric still stained afterwards or cleaned far too late to be of value to the customer. Meanwhile, British judges are unable sufficiently to help at home because they have no parliamentary mandate to do so. Failure to incorporate also means that we lack a coherent legislative framework to guide our courts when deciding cases involving human rights questions, where choices have to be made between competing human rights and between individual claims and the interests of the community as a whole.
In November 1968, in a lecture given to a Fabian Society audience, I first called for the incorporation of the convention into UK law so that the people of this country, like the citizens of the other states parties, could obtain speedy and effective remedies before our 1138 own courts. That was then regarded as rank heresy by many supporters of the Labour Party, just as it has remained an anathema to successive Conservative administrations.
In 1972, a Conservative Government persuaded Parliament, upon our joining the European Community, to incorporate Community law into UK law. As noble Lords know, Community law takes priority over inconsistent national legislation and is directly effective in our courts. Community law also confers rights on individuals which national courts must protect. Where Community law is directly effective, our courts are commanded by Section 2 of the European Communities Act 1972 to interpret all existing and future UK legislation in conformity with Community law, where necessary displacing national legislation to give effect to Community rights and duties.
The present Bill seeks to give similar effect to European Convention law as the 1972 Act gave to European Community law. Parliament retains its sovereign power to repeal or to amend the Bill; but, unless and until it does so in plain terms, British courts are directed to interpret existing and future legislation so as to comply with convention law, just as they now do in giving effect to Community law.
I shall revert briefly to the history. In June 1976 the then Home Secretary, my noble friend Lord Jenkins of Hillhead, published a discussion document on legislation on human rights, with particular reference to the European Convention, summarising and analysing the relevant issues fairly and in depth. Later that year, Lord Wade introduced the second of his Bill of Rights Bills. It was referred to a Select Committee chaired by the noble Lord, Lord Allen of Abbeydale. The Select Committee took evidence from many quarters. One of the most eminent Conservative supporters of the Bill was the noble and learned Lord, Lord Hailsham of Saint Marylebone, who stated that, as part of,a radical overhaul of our constitutional arrangements, a Bill of Rights entrenching the European Convention is a modest, but desirable, addition to the armament of liberty against populist or bureaucratic intrusion and oppression".I respectfully agree.
Meanwhile, in November 1977, the Standing Advisory Commission on Human Rights in Northern Ireland published a report, to which I was privileged to contribute as a special adviser, strongly recommending incorporation of the convention. That was also the view of the Northern Ireland Constitutional Convention, chaired by the noble and learned Lord, Lord Lowry, which reported in November 1975, and is the prevailing view among both traditions, Republican and Unionist, in Northern Ireland.
In May 1978, the Select Committee of this House reported that it was in favour of the Bill, although its chairman, the noble Lord, Lord Allen of Abbeydale, was in the dissenting minority. Lord Wade's Bill was duly passed by this House but was defeated in another place in December 1979. In November 1980 the indefatigable Lord Wade made a third attempt. Once more his Bill was passed by this House and once more it was defeated in another place. A yet further attempt was made almost nine years ago—the last attempt—when Lord 1139 Broxbourne, with the support of the noble and learned Lord, Lord Scarman, introduced a Human Rights and Fundamental Freedoms Bill which was passed by this House in April 1986, but after receiving a Second Reading in another place, on the initiative of the distinguished Conservative Member of Parliament, Sir Edward Gardiner, QC, the Bill progressed no further.
In passing these Bills, this House has been in close harmony with the popular will and informed opinion. Independent polls show that incorporation has the support of most of our fellow citizens. The early judicial supporters of incorporation, led by the noble and learned Lord, Lord Scarman, included two former Lord Chancellors, Lord Gardiner and the noble and learned Lord, Lord Hailsham. They have been joined—I hope he will not mind my taking his name in advance or in vain—by the Lord Chief Justice, the noble and learned Lord, Lord Taylor of Gosforth, the Master of the Rolls, Sir Thomas Bingham, and several Law Lords. The Bar Council and the Law Society also now favour incorporation. So does Justice, under the distinguished chairmanship of the noble Lord, Lord Alexander of Weedon, and a former Home Secretary, Sir Leon Brittan.
The Liberal Party was the first political party to advocate incorporation. For some 40 years the Labour Party, as I have said, was implacably hostile. But there has been a sea-change in its attitude. It now makes common cause with Liberal Democrats in supporting incorporation. Indeed, all of the Opposition parties, including the Ulster Unionists, are now in favour of making the convention directly enforceable in our courts.
In the absence of incorporation, our courts have done their best to give effect to the convention. They have treated it as persuasive where the common law is uncertain or incomplete or where statute law is ambiguous. Whether sitting in the Judicial Committee of the Privy Council and interpreting the Bills of Rights of Commonwealth constitutions or interpreting and applying European Community law, our judges have shown themselves as well equipped, in my opinion, as any courts anywhere in the world to use convention law in a wise and enlightened way.
But unless and until Parliament gives them a clear legislative mandate, there are limits to what our courts can do. Crucially, they cannot provide effective redress in cases involving the misuse of public powers in breach of convention rights; and our exceptionally able judges cannot make a full and powerful British judicial contribution to the progressive development of European legal principles in the human rights field. So we unnecessarily add to the excessive burdens of the European Commission and Court of Human Rights and weaken the potential influence of our own legal system right across Europe.
Four years ago, in the Brind case, which sought unsuccessfully to challenge the Government's ban on the direct broadcasting of statements made by Sinn Fein and its supporters, the Law Lords rejected the judicial incorporation of the convention to review the scope and operation of Ministers' powers. They decided that, if 1140 they were to interpret Ministers' very broad statutory powers—in that case to censor broadcasting—as being limited by or subject to the convention, they would be usurping the functions of Parliament by incorporating the convention through the back-door. So legislative incorporation is plainly necessary.
The Government have recently accepted—I refer to the Official Report, House of Lords for 7th December 1994, col. WA 84—that Ministers and civil servants must comply with the convention in discharging their public functions. But the Government have not accepted that Her Majesty's judges in discharging their public functions have a similar duty to comply with the convention—Official Report, House of Lords, 9th January 1995, col. WA 1. Unless and until Parliament makes the convention part of our law, the duties of public authorities under the convention are not legally enforceable. They give rise to no legal remedy in our courts. The present Bill is designed to fill that major and significant gap.
Another consequence of the failure to incorporate the convention is that there is no constitutional citizen's charter prescribing core rights, freedoms and duties for everyone within the jurisdiction of the UK on the basis of equal citizenship. This Bill prescribes a binding code to strengthen the unity of our somewhat disunited kingdom. It encourages national unity by prescribing core standards which a future Scottish Parliament, or Welsh Assembly, or Northern Irish governing body, or English regional or local authority, like central government departments, will have to respect.
The statutory code enshrining the convention encourages everyone, everywhere within the UK, to cherish the positive value of being a British citizen. The code also gives guidance to Ministers and civil servants, to Parliament and the courts, and to ordinary men, women and young people. In place of ethical aimlessness and excessive bureaucratic discretionary powers, it encourages a culture of ordered liberty under the rule of law.
I shall not detain the House with a detailed account of the Bill's provisions as they are described in the explanatory memorandum. However, I will, if I may, draw attention to a few salient points. Clause 1(1) makes section 1 of the convention and the first protocol part of the law of the United Kingdom and ensures that they will be given full legal effect. I have confined the Bill to incorporation of the convention, together with the protocols so far ratified by the UK, as there is a consensus in the three main political parties that the rights set out in the schedule to the Bill should continue to be enjoyed by everyone within our jurisdiction. I am well aware that there are additional rights in the International Covenant on Civil and Political Rights which the UK is also bound to implement effectively in domestic law. That is a matter which requires further consideration once the present Bill is enacted.
Clause 1(2) has the effect of abrogating any existing rule of law in so far as it is inconsistent with the convention. Clause 1(3) prevents any Act of Parliament or statutory instrument from being enforced or from being relied upon in any way in any legal proceedings to the extent that it is inconsistent with convention law. 1141 It is similar in its legal effect to Section 2(4) of the European Communities Act 1972, in that it requires our courts to interpret and apply existing and future legislation in accordance with European law. However, although Parliament cannot effectively legislate in contravention of Community law, that is not the case with the provisions being incorporated into this Bill. If it is enacted, it will remain open to a future Parliament to alter the position by clear and explicit amending legislation. In the absence of such legislation—which might risk being declared by the European Court to breach the convention—the task of our courts under Clause 1(3) would be to eliminate any mismatch between our statute law and European convention law.
Clause 1(4) provides that judicial interpretation of the convention shall follow the precedents set by the European Court. Our courts will not have to start from a completely fresh standpoint in construing the convention and determining the extent of its rights and obligations but will follow Strasbourg case law.
Like Lord Broxbourne's Bill, Clause 4 creates a right of action as breach of statutory duty for violation of the incorporated convention rights in the performance of public functions. It does not create a direct right of action against persons acting in a private capacity, because that is not the object of the convention. The Bill creates what is in essence a constitutional tort. However, the incorporated convention would, as at present, continue to influence our courts' interpretation of private law as well as of public law; for example, the contours of defamation law or the protection of personal privacy.
In other common law jurisdictions, including Canada, India, the United States and Ireland, it is well established that compensation is payable for some breaches of constitutionally guaranteed human rights and freedoms. The Judicial Committee of the Privy Council has held that the same is true of breaches of Commonwealth and Caribbean constitutions.
As with any other statutory duty, the circumstances in which a breach gives rise to a claim for compensation will have to be determined on a case-by-case basis. The cases in which compensation is recoverable for breach of the convention are mainly well recognised categories of our existing law: cases not only of misfeasance in public office, but also trespasses by public officers involving assault and battery, false arrest, false imprisonment, malicious prosecution and wrongful interferences with the right to property. All those wrongs are actionable in our own courts now.
There may be other cases in which our courts will fashion appropriate remedies for the constitutional tort of breaching the convention, depending upon the nature and circumstances of the particular breach. They will have to do so, not least because of the need to secure effective domestic remedies in accordance with Article 13 of the convention.
The noble and learned Lord, Lord Woolf, who unfortunately cannot be present tonight but who has, I believe, authorised the noble and learned Lord, Lord Taylor of Gosforth, to explain his position, has kindly informed me of his doubts about the particular terms in which Clause 4 is drafted. I well understand his 1142 concerns about its potentially broad reach. I suggest that that is a matter which will merit careful scrutiny during the Committee stage so as to ensure that our courts are able to give effective domestic remedies, including compensation where appropriate, for breaches of convention rights.
Neither the European convention nor the Bill is a panacea. As the eminent judge, Learned Hand, reminded his fellow Americans a half century ago:Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. While it lies there, it needs no constitution, no law, no court to save it".But a constitutional guarantee surely acts as a rallying point and a bulwark for all who cherish freedom. It strengthens the sinews of democracy and promotes good governance. It provides orderly legal redress for infringements of civil rights and liberties, and it contributes to public education in winning hearts and minds. The power of government needs to be matched by the power of the law if the individual is to be secure. The law of the British constitution should encourage the spirit of liberty, and our courts should give redress where basic civil rights and freedoms are infringed. For those reasons, I commend the Bill to your Lordships.
Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)
§ 8.24 p.m.
§ Lord Taylor of Gosforth
My Lords, I shall not detain the House long. The Bill before us is short, and I venture to suggest that our speeches should reflect that. Nevertheless, it is of great importance. My noble friend, Lord Lester, has already outlined the main arguments in favour of the Bill, and I should like to endorse the points he has made. I should add that, although I cannot comment for the judiciary as a whole, I can assure the House that what follows has the strong support of the Master of the Rolls, Sir Thomas Bingham, and of my noble and learned friend, Lord Woolf, who, as has been mentioned, regrets that he is unable to be present during the debate.
We have a proud tradition of freedom in this country, a freedom which has largely derived from the strength and vigour of the common law. But, strong as that tradition is, I do not think that we may safely rely on it for all purposes in the modern world. Nor have successive Governments thought so.
We ratified the European convention that forms the schedule to the Bill as long ago as 1950. We have allowed our citizens to enforce their rights under it through the European Court of Human Rights since 1966. The convention is therefore as much a feature of our constitution as life peerages or the holding of a referendum.
We are bound to give effect to decisions of the European court, and if our law does not accord with it we are bound by treaty to change our law. Despite our tradition of freedom, there have been many instances in which our law has had to be changed. One field in which that has occurred a number of times concerns the rights of prisoners, and especially the procedures regarding life prisoners. 1143 It is not helpful to debate our record of compliance with the convention or to compare it with that of other signatories. The question is: why should any of those litigants who have exercised their right of petition in order to enforce their fundamental human rights have been compelled to go all the way to Strasbourg—distant not only in space but more importantly in time—to obtain a remedy which could have been granted by a domestic court in the United Kingdom?
The answer usually put forward in response is that to allow United Kingdom courts to apply the convention directly would involve the judiciary in political issues from which they are supposedly sheltered at present and would displace the supremacy of Parliament. I do not believe that those arguments withstand serious scrutiny.
Judges have, with the growth of judicial review, been increasingly required to consider issues having a political dimension. For example—and it is only one example—they have had to review the conduct of Ministers. They have on occasion struck down decisions of Ministers. That has not led to any collapse of confidence in the political impartiality or independence of the judges. Rather the reverse.
As to the supremacy of Parliament, in the field of European Community Law the Factortame case is an example of our own judges having to give an EC directive precedence over an Act of Parliament, the very thing which opponents of the Bill say would make the constitutional roof fall in.
In fact it is not the proposed change but the present situation which is worrying from a constitutional viewpoint. At present, the aggrieved citizen is advised that his or her fundamental rights under the convention have been infringed. He or she cannot obtain any immediate remedy but must pursue a hopeless application through all the United Kingdom courts, including your Lordships' House. At the end of this procedure, the case can be argued in Strasbourg (with all the delay which that involves). The European Court eventually decides that the Government are in breach of their obligations, with the attendant criticism and embarrassment to which I have already referred. Finally, many years after the actions complained of, the law has to be altered by Parliament. Is that any way to offer protection for freedoms which have existed under our constitution for nigh on half a century? All it does is to put off what the Government see as the evil day when we have to come into line with our treaty obligations. As I have said before, and I repeat it, it is as though when we signed the treaty we were saying, "God, make us good, but not yet".
It is because of that anomaly that I support the Bill. However, I must qualify my support in two respects, in both of which I am authorised to say that the Master of the Rolls and my noble and learned friend Lord Woolf concur. First, I would wish there to be a power whereby Parliament could expressly override the provisions of the convention if an exceptional need arose. The power of the New Zealand Parliament to override its Bill of Rights is a workable precedent for that. I would expect 1144 such a power to be exercised very rarely, if at all, but it is conceivable that some need special to the United Kingdom might make it necessary.
Secondly, I am concerned by the suggestion in Clause 4 that a violation of the convention should give rise to an action in damages as of right for breach of statutory duty. I should have thought that the range of discretionary remedies which has been developed by the courts in judicial review, including, where appropriate, compensation, would be much more suitable. I am glad to know that my noble friend Lord Lester agrees that this should be subject to review at the Committee stage. But the overall purpose of the Bill is in my view incontrovertible and I commend it to the House.
§ 8.31 p.m.
§ The Lord Bishop of Southwark
My Lords, I am grateful to the noble Lord, Lord Lester, for introducing the debate. I am grateful to the noble and learned Lord, Lord Taylor, for his suggestion that speeches may be kept fairly brief. I cannot match the expertise and knowledge of the noble and learned Lord, but I certainly hope to match his brevity.
The rights of the individual and the responsibility of nation states to maintain those rights are matters to which the Christian community is deeply committed. I therefore welcome the possibility that the European Convention for the Protection of Human Rights and Fundamental Freedoms should be incorporated into the domestic legal system of this nation.
Whereas we hear much said about the encroachment of European legislation and bureaucracy upon our lives, what we are talking about in this instance is something completely different. Our Government played a key role in drafting the convention that we now consider. For 40 years we have adhered to it. Countless numbers of ordinary people have over those years sought redress through its provisions for situations in which they have been the victims of injustice. In short, we have benefited as a nation from that convention.
Yet to this present time those remedies have had to be sought outside the United Kingdom. To incorporate the European convention into British law would make the entire process more transparent and much quicker. It would not undermine rights or freedoms, but would enhance them. That theme was touched upon by the most reverend Primate the Archbishop of Canterbury in the speech which he made to the Council of Europe in 1993. In recognising the importance of the convention and expressing his admiration for its achievements, he concluded by saying:The arguments for incorporation of the Convention into British law grow more pressing".In the two years that have passed since he made that speech, the pressure has not grown less.
There is also a dimension to this in which I have a more personal interest. There would be real additional advantages to the incorporation of the convention with respect to the future of Northern Ireland. As part of the domestic legislation of the Province, it would provide additional safeguards for the people so that justice is both done and seen to be done in that particularly 1145 difficult context. The incorporation of the European convention into domestic legislation in both Britain and Ireland was, as we heard, urged in the 1988 report, Human Rights and Responsibilities in Britain and Ireland, a project for which the most reverend Primate the Archbishop of York served as president, and the noble Lord, Lord Lester, and the current President of the Republic of Ireland, Mary Robinson, served as consultants.
We are already bound by the provisions of this convention. We already have the opportunity to have recourse to the remedies for which it provides. What we should be supporting here is the opportunity to make the citizens of this nation more aware of their rights and providing them with more speedy and accessible opportunities to right wrongs. Though I cannot claim any expertise in the legal and constitutional issues that are necessarily bound up in our consideration of the legislation before us, I believe that fundamentally we have nothing to fear from the proposal but much to gain.
§ 8.35 p.m.
§ Lord Donaldson of Lymington
My Lords, I very much welcome the Second Reading of the Bill because it gives a full opportunity to Members of the House to express their views on what undoubtedly are important issues which have been much debated over a long period. My only reservation is that I have a shrewd suspicion that I shall find myself in a minority of one.
I have great concerns about the Bill—concerns which, I confess I was surprised to learn on lunchtime television were not shared by my noble and learned friend the Lord Chief Justice and my most distinguished successor as Master of the Rolls, Sir Thomas Bingham; but there it is. When several lawyers are gathered together, it is not unusual to find a certain difference of opinion, albeit perhaps unusual to find so deep a division as may well exist here.
I think that it is important to remember that in this country our approach to human rights is, and always has been, different from that of many others. It is a difference of which I personally am very proud. It lies in the fact that in this country the citizen does not have to identify any right to justify his conduct. He has total freedom of conduct unless restrained by law; and it is for those who complain of his conduct to identify what law it is which interferes with his freedom. He has no need of a list of freedoms, or rights of freedom. He has them anyway.
Those legal restrictions to his otherwise unfettered freedom arise in two different forms. First, there are the restrictions imposed by the common law. When sitting as a judge, I have from time to time been referred to the convention as an aid to an argument as to the law. But I do not remember it ever being suggested that there was any inconsistency whatsoever between the common law of England and the terms of the convention, at any rate as understood by an English lawyer. Secondly, there is the statutory law, which provides restrictions on the freedom of the citizen.
I have no doubt that all, or virtually all, Members of both Houses of Parliament accept the principles set out in the convention. But they are necessarily broad 1146 principles to which exceptions may need to be made in the public interest outside any derogations contemplated by the terms of the convention. I have also a strong feeling that, while all, or most, Members of both Houses of Parliament would say, "Yes, of course we accept the convention wholeheartedly", when one puts a particular case in front of them and says, "Now this is said to be a breach of some term of the convention", they would say, "But good heavens no, of course it isn't".
Then the question would arise of whether they are right or wrong. I can give the House a small example which I think would cause dissension as to whether or not the convention was breached. I take Canada, which in effect incorporated the convention a few years ago. There was a challenge under Article 6, I think, of the laws relating to the illicit trade in drugs, on the basis that the burden of proof had been reversed where a criminal was found in possession of drugs. I think he then had to show that he was not a supplier and the burden was on him to prove it. That was challenged. I can well imagine that some authorities might say, "Yes, that is a breach of his rights". But many others would say, "Well, it isn't, when you come to consider the principle which underlies the appropriate article of the convention". Ironically, in that case there would undoubtedly have been no breach of the convention if one had taken away some of the accused's rights and made the possession of illicit drugs an absolute offence so that there was nothing left for him to prove. That kind of consideration is important before we rush to incorporate the convention.
However, I have a much greater worry about the convention. I firmly believe that we live in one of the greatest and best functioning democracies that the world has seen. I am not saying that it is not capable of improvement; of course it is. But it is in the front rank of true democracies. The Members of the other place are elected and, under the Parliament Act, they have the last word. Accordingly, I do not have to go into the interesting discussions as to how democratic this House is. For the purpose of the present discussion, it suffices that the other place has the last word and it is an elected body.
What is proposed is that Parliament's right to govern should be restricted by the convention. I find that constitutionally totally unacceptable. I have often thought that Parliament—and I use these words colloquially and in quotation marks—"had taken leave of its senses". However, I recognise and still believe that ultimately it is the right of Parliament to make some stupid decisions. If someone else thinks that they breach human rights, again that is the right of Parliament. It is not said that the courts should have the opportunity to override Parliament, operating on an ordinary domestic jurisdiction. Personally, I would think that that too was unacceptable. I go along with the idea that the courts could express an advisory opinion for Parliament to consider, but that is a different matter and is not what is proposed here.
What is proposed is that the United Kingdom courts shall set aside Acts of Parliament, not because they think that the Acts of Parliament breach the convention, not because Parliament thinks that the Acts of Parliament 1147 breach the convention but because—and I must refer to this because it is accurate—a foreign court thinks that those laws breach the convention. That must, in large measure, be a matter of interpretation. A significant factor in deciding what is and what is not a breach of the convention is the background, the history and the social background as well as the attitudes of the British people. It is they who should decide that, either through the ballot box or, if they wish to give the power to the courts, so be it. But it should not be decided by an external body. I find the whole principle of the Bill totally unacceptable. The basic assumption is that Strasbourg knows best and I am quite convinced that it does not know best.
The noble Lord, Lord Lester, suggested that the courts' powers of judicial review were in some way inhibited by the fact that the convention is not part of our law. I have spent a lot of time in my judicial career exercising the judicial review jurisdiction and, I hope, extending it. In fact, I know that I extended it in ways which were distinctly disagreeable to the Government but which I regarded as being absolutely essential and part of what one might describe as the common law approach. But I never felt in any way that anything I was unable to do involved an inability which stemmed from lack of the convention as part of English law. I dare say that Ministers would say: "Well, goodness me, look at what the courts do to us without the benefit of the convention. We tremble to think what they would do with it". That may be, but it is a partisan view. I merely say that I never found the lack of the convention any problem.
The noble Lord, Lord Lester, also suggested that the Bill would create something in the nature of a constitutional court. I have never heard of a constitutional court which was constituted in its vast majority by citizens of another nation.
I should just mention one practical objection, which I am sure could be dealt with in Committee. It is that in the face of Clause 1(3) and (4) it seems to me that it would be very difficult to enforce any act or instrument to which there was a bona fide challenge until the European Court and the commission had ruled upon it. Indeed, it goes further than that because I may have misread the Bill. I think that the requirement is to give effect to the views of the commission as well as the court. We could have the situation which we have at the moment where the commission has expressed a view and the court has not yet got round to expressing a view. Whether I am right or wrong about that, I have little doubt that if my construction is basically right, we shall be faced with a species of "convention blight" which would make government extremely difficult.
One other point which might be cured in Committee is this. The Bill is designed to be fully retrospective to whatever the earlier statute is on the statute book. We have had the disappearance of the power to bind over under a statute of about the 1300s. I am not sure exactly when it dates from, but the statute has been around for a very long period. The Canadian experience, which can easily be checked with our Canadian colleagues, is that when they introduced their Charter Act, as I think they 1148 called it, which provided that any citizen could challenge any Act or instrument of whatever antiquity, the courts—in particular the Supreme Court—became totally and completely blocked with charter cases. Initially it was not possible to strike them out. No doubt I would have said, "That's nonsense", but it may be that my noble and learned friend Lord Taylor would say, "That is extremely plausible". Until a body of case law had been built up—which took a considerable time—the courts were clogged up. If there were a special court dealing with this, it could clog itself up, but we have enough trouble with the ordinary courts at the moment without that being brought in.
If the Bill goes ahead—and I devoutly hope that it will not—it may be possible in Committee to have another look at the fully retrospective aspect, which I regard as being undesirable. I have taken up too much of your Lordships' time, but, as I am probably the only member of my party—a party of one—opposing the Bill, perhaps I may be allowed a little extra time.
§ 8.49 p.m.
§ Lord Browne-Wilkinson
My Lords, I join the noble and learned Lord the Lord Chief Justice and the right reverend Prelate the Bishop of Southwark in welcoming the presentation of the Bill. My noble and learned friends Lord Lester and the Lord Chief Justice have illustrated the extraordinary anomalies from which we now suffer. We have a treaty obligation, under Article 13 of which this country and this Government are bound to afford to everyone whose rights and freedoms are set forth in the Convention and which are violated, an effective remedy before a national authority. I do not know, but at first reading it appears that the failure to incorporate and provide an effective remedy before the national authority of the member state—in this case the United Kingdom—is itself in conflict with the treaty obligation. However that may be, this country has an honourable record in complying with decisions of the European Court of Human Rights. Retrospectively it complies.
One asks oneself: how did we get to a position where this country—which, as my noble and learned friend Lord Donaldson of Lymington so graphically described, prides itself on its freedoms going back over the centuries, it being in the forefront of democratic freedom; its principles of freedom being the very basis on which much of the convention was based in drafting; being one of the progenitors of the convention itself—is found more often to be in breach of that convention than any other member state? It is an astonishing position. I am tempted to call it an Alice in Wonderland position. We are in breach of the international obligation. All our governments for the past 40 years have accepted this obligation. They have accepted the duty to observe these human rights; and yet we do not allow our own courts to do that very thing themselves. That must be a major reason why we are so constantly and so publicly disgraced—I am afraid I use the word "disgraced" with deliberation. That this country with its history should be found so repeatedly in breach of its international obligations to provide freedoms is very shocking. 1149 The objection, as usual so eloquently presented by my noble and learned friend Lord Donaldson, always comes down at the end of the day to sovereignty—the supremacy of Parliament. I am not one to disregard that factor. I do not share it, but I believe it is a very real consideration, and that to confer on the court the right to strike down the statute—which is effectively what this Bill will propose —is a very major constitutional step indeed. I fully recognise that different views can be held about it. I just hope that the Bill does not die the death in any form on that ground alone.
I hope not to be too technical—this looks too much like a lawyer's party anyway. The main reasons why this country has been held in breach of the convention is not that Parliament has specifically enacted any measure which is in breach of the convention. It is not because, save on one or two occasions, the common law of this country has been found to be in breach. It is for the very reason that my noble and learned friend Lord Donaldson of Lymington mentioned; namely, our traditional English freedoms are freedoms, not rights; and like any other common law freedoms they are subject to abridgement and curtailment by Act of Parliament. That is where we have been found to be at fault—not in our general institutions but by the operation of Acts of Parliament. It is not in the substantive provisions of the Acts which this House and the other place have passed that we have been found wanting. We have been found wanting by accident.
It is an essential feature of any legislation in the modern state that it is bound to confer discretionary powers on the Executive to operate the powers that are conferred by Parliament. Ministers are given power to make such regulations as they may think fit to achieve this result or that. It is the operation under those powers that has given rise to most of our infringements.
Contrary to the view of my noble and learned friend Lord Donaldson, I believe that if people walking through the Lobbies in this place or in the other House were asked, as they voted on the usual Act which contains 123 discretionary powers conferred on the Minister to make regulations and do all the other things: "Have you voted to allow the Minister to infringe the European Convention on Human Rights?", they would say, "Of course not. We have given powers to act in accordance with law and in accordance with what this country has undertaken to do". I only suggest this. But I hope that this Bill does not disappear, because it seeks, in typically wholehearted fashion, to go the whole way and enable the courts to strike down legislation completely. I hope that if, as seems possible, a "whole hog" Bill is not attractive to a majority in the other place (if not here), consideration will be given by everybody concerned to putting right a ludicrous Mad Hatter's tea party position—and in this way: simply by providing in this Bill that the courts shall, to the extent possible, construe the Acts of Parliament so as to take effect on the basis that they are not intended to confer powers designed to infringe the convention. That is what the Nordic countries have done for many, many years and they have complied. That is what everybody else who has not had incorporated rights has done, and they have complied.
1150 Unhappily, my experience is contrary to that of my noble and learned friend Lord Donaldson. I have on occasion had to reach conclusions in cases which I knew to be contrary to the convention because I was not able to do otherwise. Why cannot we enable our courts to administer what the European Court of Human Rights does many months, many years, many hundreds of thousands of pounds later? Why should the courts here not give effect to what is undoubtedly the implied intention of Parliament, stopping short if necessary of declaring invalid any Act of Parliament? That brings about a position of true constitutional reform. I am, I am afraid, at much greater length saying what the noble and learned Lord the Lord Chief Justice said in about three words; namely, what about the New Zealand approach? That approach does not override Parliament's right to say, "We are going to contravene the convention". The courts are simply being allowed to apply legislation in accordance with what I believe most people would understand to be everybody's intention; namely, not to breach the convention.
Finally, and very shortly, I make one further comment in the hope that it can be considered in Committee. I am anxious about matters of this kind coming up all over the judicial system. A point taken that legislation, or executive powers, are contrary to the European Convention could as well arise in the Puddletown magistrates' court as in the High Court. If any power of challenge of this kind is to take place, considerable care has to be given to where and when that matter shall be adjudicated. Much of the trouble that has occurred in Canada, whose Bill was far more sweeping than anything that was proposed here, has arisen from the fact that it arises in multifarious jurisdictions. But that is a matter for the Committee. I commend this Bill and hope that it produces a fruitful result, putting an end to the absurdity that currently exists.
§ 9 p.m.
§ Lord McGregor of Durris
My Lords, I am taking the advice of the noble and learned Lord, Lord Taylor of Gosforth, and I shall not give the speech that I had intended to make. I wrote it having read, and frequently re-read, all the proceedings in this House on this subject, to which my noble friend Lord Lester also referred. I finished that task in deep depression because the pages were filled with the hostilities, as I felt, of lawyers towards the convention. This evening has transformed my feelings on that subject. I now feel extremely cheerful having heard what the noble and learned Lords, Lord Taylor of Gosforth and Lord Browne-Wilkinson, have said.
I cannot reconcile the observations of the noble and learned Lord, Lord Donaldson, in regard to the situation that would develop if we incorporated the convention with what in fact is our actual situation. My understanding of the remarks of the noble and learned Lord, Lord Browne-Wilkinson, was that he was also hinting at that. In fact we are committed to the 1151 convention by a treaty. We can neither escape nor avoid it. The noble and learned Lord, Lord Hailsham, has made this point repeatedly. He has said,Rightly or wrongly, we have got a Bill of Rights. We have signed the European Convention on Human Rights — and what we have done is to put ourselves in the hands of judges at Strasbourg, instead of putting ourselves in the hands of judges at Westminster or Edinburgh. Now personally, I mean no disrespect for the judges of Strasbourg. I think the judges at Edinburgh or Westminster or Belfast have a better feel for the way in which those rights to which we are committed in international law ought to be applied in the English, Scottish or Northern Irish context than the chaps at Strasbourg".That seems to me to be self-evidently true. The noble and learned Lord, Lord Hailsham, added:Is it to be supposed that our own judges are so stupid or so biased that they are not to be allowed to decide these matters for themselves?I wish to make only one other point—again a point of dissent from what the noble and learned Lord, Lord Donaldson, was saying. Like him, I am very proud of many of the British traditions and in particular of our tradition of freedom. We have promoted that tradition throughout the world. The European convention was in a real sense a British initiative to which, as the noble and learned Lord, Lord Browne-Wilkinson, said, we contributed massively. Let us take pride in our contribution of what is a universal development of human rights.
Many international instruments and treaties today guarantee some 40 distinct human rights. The past 40 years have witnessed an astonishing proliferation of legal safeguards for individual rights which previously in most countries had been no more than aspirations. In 1950 the only binding treaty which mentioned human rights was the United Nations charter. Now there are three global treaties, four regional treaties and two declarations. The late Paul Sieghart saw the development of this code of international law on human rights since Hitler's and Stalin's time as,a change in international law so profound that it can properly be called a revolution. Today, for the first time in history, how a sovereign state treats its own citizens is no longer a matter for its own exclusive determination, but a matter of legitimate concern for all other states and their inhabitants".Moreover, the codes are not merely hortatory. In Europe, 21 sovereign states established a commission and a court of human rights for enforcing the rights guaranteed by the convention. They thereby relinquished the power to treat their own citizens as they chose. Member states have been compelled to rewrite some municipal laws, to change their administrative procedures and to compensate their own citizens when they have been held in breach of the convention. In the same way, the American Convention on Human Rights is enforced by an Inter-American Commission and a court of human rights set up by the Organisation of American States. Now, some 17 independent nations, though not the United States, are party to this structure. The latest of the regional treaties, the African Charter on Human and Peoples' Rights, was adopted by the Organisation of African Unity some 15 years ago but has not yet been implemented in a continent rich in dictatorships and tyrannies.
1152 Thus, what used to be the unenforceable natural rights of eighteenth century rhetoric—what Bentham called "bawling on paper"—are being endowed with legal sanctions and an effective machinery of enforcement by international courts across national frontiers. I see these conventions on human rights as staging posts on the human road of moral progress. In the history of morals, it is not mankind's sense of duty to neighbours which has changed over the centuries, but the answer to the question: who is my neighbour? In primitive morality, obligations were confined to very small groups of people. As the group widened, so the range of rights and duties extended and new meaning was given to the Biblical injunction:Whatsoever you would that men should do unto you, even so do you unto them".The extension of moral obligation backed by legal sanctions which treats as one group the 400 million inhabitants of the nation states which have adhered to the European convention is indeed a turning point in the history of freedom. Similarly, the American convention now draws rather more than 200 million people into a single group within which a jurisdiction on rights and enforcement procedures is developing.
This is something of which, having played a part right at the very beginning, we ought to be extremely proud. We have played a role in establishing international and enforceable rights. I support my noble friend's Bill because I wish to have a charter of human rights and freedoms in the law of the United Kingdom, where it will be enforced by an independent judiciary, to give British citizens a remedy at home without having to make an expensive and delaying journey to Strasbourg. I believe that incorporation in this country will strengthen a highly desirable development in other parts of the world. I see no benefit to us or to our law or to the principles for which we have stood in being insular about these matters.
I have a particular concern for freedom of the press as a vital social end to be secured in a democracy. I believe that incorporating Article 10 of the convention would provide essential guidance for balancing the rights and responsibilities of the press which we lack within our system at the moment. I very much hope that my noble friend will continue with his efforts in respect of his Bill.
§ 9.13 p.m.
§ Lord Lloyd of Berwick
My Lords, your Lordships will have noted with relief that I am the last—and I am sure noble Lords will say the least —of the Law Lords who will be speaking on this subject and so I want, if I may, to speak more as a layman than as a lawyer. I do so only because I am a relatively late convert to the campaign which my noble friend Lord Lester and the noble and learned Lord, Lord Scarman, have been waging for so many years, with increasing support on all sides. How sad it is that the noble and learned Lord, Lord Scarman, cannot be with us tonight. I am a convert because initially I was opposed to the idea of incorporating the convention in our domestic law even though we have been bound by it since we signed the convention in 1951 and even though, as we have been 1153 reminded by the right reverend Prelate, we played a large part, if not the leading part, in formulating its provisions.
If I ask why I was opposed, I am almost ashamed to admit that my attitude was that the convention was perhaps all right for abroad. It was all right for other countries. Most of them have long since incorporated the convention in their domestic law. But I believed that we did not need it here. Human rights in this country were adequately protected by Parliament and the courts. I believe that that was the principal reason.
There was another reason at the back of my mind: whereas the courts are very used to applying our common law and are more or less at ease at construing and making sense of Acts of Parliament, it seemed to me that they might not be so good at handling these rather vague concepts which are enshrined in the convention.
My eyes were first opened when I read in The Times some years ago that the United Kingdom had just lost eight cases in a row at the court in Strasbourg. That did not seem like a very good human rights record. They were all cases in which our citizens had been compelled to go to Strasbourg to get justice in accordance with the convention. They were all cases in which, despite what the noble and learned Lord, Lord Donaldson of Lymington, has described as the overriding protection of the common law, that did nothing whatever to help them. That was the position then and that is still the position today 30 years later. The delay in taking a case to Strasbourg gets longer and longer, and the expense becomes greater.
In four cases decided by the court at the end of 1992 the average delay in getting the cases on and having them decided was six years. That does not seem a very sensible or economical way of going about things. As Sir Thomas Bingham, the Master of the Rolls, said in a lecture not so very long ago,If this is a match which we are going to have to play, why should we always play it on an away ground?We cannot stop our citizens going to Strasbourg. The record shows, alas, that they are all too often right. Therefore, would it not be better in plain common sense that their claims should first be decided by English, Scottish and Northern Ireland judges? That is a point which has been made by the noble Lord, Lord McGregor of Durris, quoting from the noble and learned Lord, Lord Hailsham. It is also a point which was made by the noble and learned Lord, the Lord Chief Justice, and other speakers. That can only be done if the convention is first incorporated into English domestic law.
My other concern is this: are the judges up to the task? With all humility, I suggest that they are for the position has changed beyond all recognition in the past 30 or so years. The reason is the incoming tide of Community law. In applying that law, as we must, we are no longer confined to our traditional English rules of construction.
We try to construe Community law through European eyes. Indeed, we are obliged to do so by numerous other conventions now incorporated in our domestic law. The 1154 Brussels Convention and the European Patent Convention and many others, spring to mind. If in the case of those conventions, why not through a human rights convention? Indeed, many of the concepts which would have seemed so vague and woolly 30 years ago are now part of our domestic law in other contexts. A good example of that is the Interception of Communications Act, and the legislation which followed on from that Act. Furthermore, the concepts of national security and economic well-being to which we are now used are taken directly from Article 8 of the convention.
Therefore, I suggest that the judges have been learning fast, that they would be able to cope with the convention and, indeed, that they may even have something to contribute so that in those cases that do end up in Strasbourg we should have made some sort of input ourselves.
With your Lordships' permission, I should like to quote just two sentences from a splendid short book by an American writer, Professor Ronald Dworkin, a distinguished jurist. I stress that he is an American writer, not a British writer. On page 22 he states:If British judges began to create as well as follow constitutional jurisprudence … their decisions would be bound to influence the Commission and Court in Strasbourg, as well as the courts of the other nations … Britain could become once again a leader in defining and protecting individual freedom, instead of a sullen defendant giving ground to liberty only when ordered to do so by a foreign court".My Lords, I support the Bill.
§ 9.21 p.m.
§ Lord Hylton
My Lords, it is with much diffidence that I join this debate which, of its nature, is dominated by the contributions of four noble and learned judges and by at least three other highly qualified legal Members of your Lordships' House.
I wish to follow the right reverend Prelate the Bishop of Southwark, in particular on what he said about Northern Ireland. Perhaps I may mention that it fell to my lot to be the honorary treasurer of the distinguished inquiry which he mentioned into human rights and responsibilities in Great Britain and Ireland, both north and south. I am glad to say that that study was eventually published as a solid volume by Macmillan Publishers.
I began to visit Northern Ireland in the civil rights period which is now quite some time ago. By then there was already a demand for a Bill of Rights of some sort. By the mid-1970s, as has been mentioned, very nearly all of the major political parties in Northern Ireland were agreed that they wanted a Bill of Rights. What is more, whatever their other disagreements, they are still in agreement on that point. I think I can say quite confidently that they would be very happy with the incorporation into United Kingdom law of the Bill that we are now considering even if perhaps a tailor-made Bill for Northern Ireland might also be necessary or desirable to deal with some of the special circumstances which arise there. As has already been mentioned, if this Bill becomes law, the long and costly road to Strasbourg will be very much shortened. To my knowledge, there 1155 have been quite a number of cases arising from Northern Ireland which have taken that four to seven-year-long course.
Again, if this Bill can be passed through Parliament, it will have the effect of reducing the importance of the very complex system that has evolved over time for dealing with complaints, for trying to redress them and for trying to ensure fair play for all the inhabitants of Northern Ireland. That involves not only having an independent Police Complaints Authority, but also an Army complaints system, a variety of ombudsmen, the Fair Employment Agency and the Equal Opportunities Commission. One might consider that that elaborate structure is complicated for a population of only 1.5 million people. If we can have the Bill, the workload of that system will be reduced considerably to the benefit of everyone.
When there has been a longish period of violent and deep-rooted conflict, as in Northern Ireland, people look around, especially once a ceasefire has been achieved, for guarantees for the future. They want to know, under whatever new system can be agreed, that they will be free from oppression and discrimination, and that no one will end up as a second-class citizen.
The Bill will assist considerably in providing such a guarantee. It is in my view a confidence-building measure, one that is badly needed to create trust in a situation which has been bedevilled for a long time by mistrust and deep-seated fears. For those reasons, I greatly hope that the Bill will not just receive a successful Second Reading here but a successful passage through both Houses.
§ 9.26 p.m.
§ Lord Cocks of Hartcliffe
My Lords, like the noble Lord, Lord Hylton, I rise with some trepidation to take part in what has already been described as a lawyers' party. I first became aware of this issue when I saw in the Sunday Times a letter from the honourable Member for Nottingham North, who speaks for Labour in the other place on constitutional affairs. It said how delighted he was to see that the Law Society human rights debate, sponsored by the Sunday Times, had endorsed the incorporation of the European Convention on Human Rights into British legislation. The letter mentions the initiative of the noble Lord, Lord Lester, in introducing into your Lordships' House this year a Bill to incorporate it into British legislation, following his own Bill.
I have looked at the Bill introduced by the honourable Member. It is more comprehensive than the Bill introduced by the noble Lord, Lord Lester. It leads us more towards accountability and, I should like to think, public acceptability. The noble Lord trailed his Bill earlier. An article by Simon Reeve states:Lord Lester … told the Law Society annual conference"—during the debate sponsored by the Sunday Times that I have already mentioned, about introducing the Bill. The article went on:Such a move would enable British citizens to get justice more quickly and more cheaply".1156 I must confess that to hear the profession talking about getting justice more cheaply wrings the strongest of responses from me.
The noble Lord, Lord Lester, has been in the news recently because he resigned from the Garrick Club over its admissions policy, having, we are told, wrestled with his conscience for some 20 years. He was no doubt clearing the decks in order to become politically correct. Perhaps I may just say as an aside that the same report about the Sunday Times conference mentioned the video it had produced about legal backing for human rights. It highlighted the case of Mordechai Vanunu. It stated:Mordechai Vanunu, the Israeli nuclear technician kidnapped and jailed by the Israeli authorities after revealing in the newspaper that the country was amassing a nuclear arsenal"—"revealing in the newspaper" is a sanitised way of saying "committing treason". I do not understand the apparent obsession with that one case when so many abuses of human rights are going on throughout the world. I wonder whether those who are so keen to press that case will shortly be asking for a posthumous pardon for Dr. Klaus Fuchs and Dr. Alan Nunn May.
However, I digress. With co-operation, I look forward to working with the noble Lord, Lord Lester, to improve the Bill and incorporate some of the aspects from the Bill introduced by the honourable Member for Nottingham North, which would improve it further.
Yet I must confess that there is one small cloud in the sky. There is one doubt raised in my mind. I have already mentioned the Sunday Times conference which was arranged for this purpose. On 2nd November 1994, during a debate about the Liaison Committee report, I said that I suspected that a request for the Liaison Committee to set up a Select Committee to scrutinise legislation for consistency with the European Convention on Human Rights was in fact motivated by Charter 88. I subsequently wrote to the Leader of the House asking for the source of that proposal to the Liaison Committee. He told me that it had originated from four Peers: one was a Conservative, one was Labour, one was a Liberal Democrat and one was a Cross-Bencher. I said that apparently that gave an appearance of support from all parts of the House, but in fact the Peers were all barristers. So the community of legal interests quite overwhelmed any party considerations.
I explained to your Lordships how Charter 88 is perfectly open about developing lobbying. It seeks to influence your Lordships' House and uses the media for that purpose, having its own agenda. It is trying to cultivate public interest in constitutional changes where there was no interest before.
It is claimed that such measures stem from widespread public concern. In moving the Second Reading of the Bill the noble Lord said that it reflected popular will and had support from informed opinion. If we start to talk about informed opinion, we move into an intellectualist-elitist attitude. One begins to think how grateful the great unwashed should be that those great intellects deign to bend their minds to improving their lot. 1157 Three years ago we were told, in an article by Anthony Barnett and Paul Hirst, who were associated with Charter 88, that the campaign for constitutional reform had caught a rising wave of popular concern. I wonder how many of the noble and learned Lords present in the Chamber tonight have sat in court, or heard of court proceedings, where people have come in front of the court for having been involved in fights, brawling in public over the question of a European convention of human rights, getting into ugly scenes because this country does not have a written constitution or even squabbling over the lack of a freedom of information Bill. It is quite absurd.
If the great wave of popular concern about which Mr. Barnett and Mr. Hirst wrote three years ago was so evident, why do we see in the Independent of 19th January this year the headline:Charter 88 drives for pre-election mandate"?The newspaper tells us that the noble Lord, together with others, were:at the opening of a drive yesterday to try to gain"—I repeat try to gain—a popular mandate for Charter 88's policies".If it is necessary all this time later to mount a drive in order to attract support, that is not good.
Charter 88's membership comprises mainly those in the professions in the middle of the economic spectrum. According to its own survey and questionnaire which it issued and to which it received some 4,000 responses, 10 per cent. of those who returned the questionnaire were associated with the arts and 0.5 per cent. were manual workers.
Charter 88 boasts of collecting tens of thousands of signatures. Indeed, I believe that it has collected over 50,000 signatures now. However, if one thinks back to the 1830s, the Chartists collected millions of signatures protesting when workers realised that the 1832 Reform Act had enfranchised only the middle classes. At that time the combined population of England, Scotland and Wales was only 16.3 million. Today the population is between three and four times greater and yet Charter 88 is boasting about a few tens of thousands of signatures.
The Chartists' anger arose because of the appalling conditions which they and their families suffered. Charter 88's advertisements are confined to what are known as the "quality" newspapers. I stand to be corrected if I am wrong about that. Perhaps the noble Lord will tell me when he sums up the debate whether Charter 88 has ever advertised for signatures in the Daily Mirror, the Sun or similar newspapers. That selectivity gives the game away. In the 1830s people complained about cholera, child labour and slum housing. Charter 88 complains about judges, miscarriages of justice and lack of information. I sometimes wonder how many countries in the world would even admit that miscarriages of justice had taken place.
The noble Lord told us that the Bar Council and the Law Society support the Bill. One has to be rather cynical about that. Noble Lords will know that at the moment there is a major argument taking place about the wages of top people in privatised industries. The 1158 Government's line is that that is no cost to public funds. Today, when the noble Lord, Lord Mackay of Ardbrecknish, was answering a Question asked by my noble friend Lord Dean of Beswick, he mentioned barristers' fees. That calls into question the fees which are paid to our legal representatives.
The fees that people in privatised industries receive begin to look like pocket-money when one considers some of the fees commanded by barristers. Those fees are coming from legal aid—ergo, the taxpayer. The chap driving the bus and the lady cleaning the office are paying those exorbitant fees to banisters. I mention once again the case of Mr. Colin Ross-Munro. It was stated in a Written Answer that he had received £671,000 in legal aid in respect of a case involving an Iraqi businessmen with which we are now all familiar.
Perhaps I may say to the noble and learned Lord, Lord Taylor, how pleased I was to see today that he has ordered lawyers to "cut the waffle". We all go along with that. I hope that that is the beginning of a movement towards simplifying and curtailing court proceedings.
I should like to draw the attention of your Lordships to an editorial which appeared in the Mail on Sunday last weekend headed:When we sell our souls to the lawyers".It mentions the fact that every change in the law, for whatever reason, is always good news for the legal profession. It goes on to say:Lawyers thrive in provoking conflict, in formalising it, in extending it. And even when they deny that claim, it is only to present themselves as highly priced mediators and conciliators. As new so-called rights are invented by pressure groups and edicts from Brussels promise ever more scope for quarrelling and distrust in our lives",and so on. We are constantly subjected to a barrage of propaganda about those constitutional changes from various sides. I believe that it is a concerted effort. The inquiry of the noble and learned Lord, Lord Nolan, which is now taking place seems, from what I have heard of it, to be concentrating on commercial aspects. But we have here a pressure group which has managed to collar a large number of opinion-formers and which purports to represent a groundswell of opinion which simply does not exist. I believe that its activities should be looked into.
In conclusion, I believe that this country is in danger of going down the path of the United States of America. Perhaps I may quote again from the article in the Mail on Sunday:In America the emphasis on legal rights is in danger of swamping any surviving concept of individual responsibility. When customers can sue a fast food outlet because it didn't warn them that hot coffee might scald, life is reduced to a lawyer's fee note".It is a serious matter. I was talking about lawyers the other day to a very old lady who has been a friend of mine for many years. She said, "You know, Michael, they used to be on our side". While I am anxious to try 1159 to improve the Bill, I think that on occasions like this we should try to take stock of just what is happening today in our society.
§ 9.41 p.m.
§ Baroness Williams of Crosby
My Lords, I do not intend to delay the House for more than a few moments. However, I should like, first, to say how grateful I am to my noble friend Lord Lester of Herne Hill and also to the noble and learned Lord, Lord Scarman, who cannot be present tonight, for having worked away for so long at the issue of the incorporation of the European convention into British law. I should like to congratulate them, once again, on having brought the Bill before the House.
I shall not pursue the arguments made by the noble Lord, Lord Cocks of Hartcliffe, beyond saying that my understanding has always been that one of the greatest prides of British justice was that it was available to every man or woman however poor or disadvantaged they may be, even if they are without power or influence. That principle is one that I believe would appeal as much to the noble Lord, Lord Cocks, as to the noble and learned Lord, Lord Donaldson of Lymington, and indeed to any other Member of this House.
It is precisely for that reason that I rise to support the Bill. I do so not as a lawyer but because it is a Bill of such significance and importance that it is a great shame to see that the legal Benches are filled tonight, while those of non-lawyers are, generally, empty. It is too important a Bill to be neglected in that way by those of us who do not happen to be judges or lawyers.
As I understand it, the great problem that now confronts us—in a situation where no one is suggesting that this country should pull out of the European convention which we signed in 1950—is that we are making redress under that convention, which we ourselves accepted in principle, both slow and extremely expensive. There is no argument for that. It is most difficult for people to seek redress under the European convention, except after years have passed and much money has flown. That means, quite simply, that those who most need that redress are the least likely to be able to get it.
The noble and learned Lord, Lord Donaldson of Lymington, referred to the common law. There are just two comments that I should like to make in that respect. First, I see no conflict, although I am not a lawyer, between the European convention and the common law. Indeed, much that was already embodied in common law is part of the heritage of individual rights that all of us share. But the European convention and the broad revolution of individual human rights, to which my noble friend Lord McGregor of Durris referred in his remarks, have swept beyond the common law; indeed, they complement it and go past it.
If the noble Lord, Lord Cocks, or the noble and learned Lord, Lord Donaldson, were prisoners, women or members of ethnic minorities, they might understand better than they do why the present situation seems to many of us to be so unsatisfactory. For the very groups in our society who have gone to Strasbourg, and found 1160 the justice there that they did not find here—not because our judiciary was not prepared to give it but because it was not able to do so—are precisely those groups in society who, a century ago, had few rights and who today have the same rights as everybody else.
When the noble and learned Lord, Lord Taylor of Gosforth, the Lord Chief Justice, referred to the difficulties of applying the common law to the modern world as a complete answer to the problems of that modern world, he was speaking of the world in which we live and of the country in which we live, which is multi-racial, multi-cultural and multi-religious, as it used not to be. To rely entirely on custom, practice and precedent—to use the marvellous words of the former Poet Laureate, Alfred Lord Tennyson,broadening down from precedent to precedent"—is a wonderful thing, but it is not enough to cope with all the changes in our society today. There is no conflict; there is a complement.
My next point refers to what my noble friend Lord McGregor of Durris said very eloquently: that we are, in the words of another poet, John Donne, not members of an island but members of the main. The revolution of human rights, which is today trying to become the foundation on which we can build a world of order and law, is one that I very much wish to see our country not only part of but making a major contribution to. In that context I wish to mention three crucial categories. The first was mentioned by the right reverend Prelate the Bishop of Southwark and by the noble Lord, Lord Hylton, when they referred to the great desire in Northern Ireland to have an underpinning of human rights behind both of the great religious traditions of that Province.
If the Republic of Ireland moves—as moving it is—towards the incorporation of the convention on European rights, then we will have the basis for at least a common understanding in both parts of Ireland of those individual human rights and respect for them which should bind us together as two modern democracies. The peace process is not so strong that we should risk not reinforcing it in every way that is acceptable to both of the major groups of Northern Ireland, and this is one important way in which we can do it.
The second issue I wish to refer to briefly is the important responsibility we bear towards the fragile democracies of central and eastern Europe. Those democracies today are profoundly bound up in the efforts by the European Council —the Council of Europe more precisely—to extend and enlarge the Convention on Human Rights to cover the rights of minorities and to cover group rights, responding to the terrible crises that we have seen in Bosnia and in other parts which today threaten the fragile democracies of central and eastern Europe. I would like to see the British judiciary contribute towards that crucial discussion which has already last year led to a declaration on minorities by the Council of Europe but which has not yet been embodied in any form of convention or in any form of international law. 1161 Thirdly, beyond Europe itself the concept of human rights, the belief in human rights and the attempt to try to establish human rights have now swept across much of the new Commonwealth as well as the old. Last year I had the pleasure of being in South Africa. If the great experiment of South Africa succeeds, it will succeed above all because in South Africa there is a real attempt in the constitution to get the acceptance of the individual human rights of peoples of all racial communities recognised by all other racial communities. It is a brave and important experiment and one to which I believe we should contribute our wisdom, our knowledge and our traditions.
I had the pleasure only last week of listening to the new Chairman of the National Human Rights Commission of India, Supreme Court Justice Raganath Misra. He spoke of the work being done by that commission, which was established only in 1993, in the areas of prisoners' rights and child labour.
If we are to begin to establish a world in which there are some basic rights which we all recognise and accept—and the forbidding of child labour is one of a number of examples all of us could think of—we must not stand in the path of the acceptance of international conventions but contribute to them, accept them and incorporate them in our own law. By doing that we shall put ourselves in a position to make a much greater contribution to the evolution of law, peace and liberty in the world than by resisting on the grounds of tradition, which, marvellous as it is, need no longer stand alone.
§ 9.50 p.m.
§ Lord Williams of Mostyn
My Lords, on behalf of the Labour Party I give the Bill the warmest welcome in principle, subject of course to detailed scrutiny in Committee, as was mentioned by noble and learned Lords who spoke earlier.
If the Bill becomes part of our law, it will be a constitutional advance of great importance, on several bases. The first is a basis of deep principle—namely, that an individual's human rights are precisely that: attributes capable of being enforced by legal mechanisms which are not the mere bare consequence of state, governmental or sovereign donation. The right should have these characteristics: clarity, simplicity, ease of enforceability. The incorporation of the convention fulfils those criteria.
Secondly,—and this will be of increasing importance in the next few years—the full incorporation of the convention into domestic law will improve the quality of domestic legislation. It will improve the quality of judicial interpretation and performance. I profoundly agree with the remarks of the right reverend Prelate, the noble Lord, Lord Hylton, and the noble Baroness, Lady Williams of Crosby, about the specific importance of the Bill in the context of Northern Ireland. On that point I have encountered no dissent from any part of the political spectrum.
Thirdly, the Bill will reduce the number of dismal occasions when the United Kingdom Government are found to be in breach of their obligations under the convention. It will allow those who are wrongly treated 1162 a more efficient, prompt and less expensive method of obtaining redress. The true analysis—and I respectfully disagree with the remarks of the noble and learned Lord, Lord Donaldson of Lymington—leads one to this conclusion: that is an exercise of sovereignty, not a derogation from it. It is too well known to need further specification that the record of the United Kingdom Government in this field has been lamentable. They have been at the bottom of every single league table on every possible occasion.
What will incorporation mean in practice in terms of legislation? I hope that it would have made us in this House a good deal more careful and critical in the scrutiny that we gave to the Criminal Justice and Public Order Act 1994. For example, Section 81 allows a constable to stop and search any vehicle, driver or passenger and any pedestrian, and to make:any search he thinks fit whether or not he has any grounds for suspecting that the vehicle or person is carrying articles",of a certain type.
That draconian power went through this House, I regret to say, late at night when there was very little attendance. There was virtually no dissent. The criminal offence is absolute. There is no defence of reasonable excuse. When this Bill becomes law it will be interesting to see how that power is capable of co-existence with Article 5(1) (c). Can the right to peaceable assembly and demonstration be wholly reconciled with Section 68 and the subsequent sections of that same Act?
I turn to Article 6, which states:In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time",and I emphasise those last words. I endorse the frequent and recent criticisms of delay and expense—those Siamese twins—made by the noble and learned Lords, Lord Taylor of Gosforth and Lord Woolf, on many public occasions. I particularly question whether the situation of a dismissed employee, whose only capital is his labour, having to wait in excess of two-and-a-half years for a concluded hearing at an industrial tribunal, can be said to fulfil our obligation. If we do not incorporate the convention, what redress is there for such people? I do not regard that as an elitist proposition.
Article 8 states:Everyone has the right to respect for his private and family life".Where is the common law there? It is notorious that our law recognises no right to privacy as such. The common law is dumb. It is not effective. There is a right to confidentiality in limited cases—employment, commercial relationships, and matrimonial matters. The individual, however mean, lowly and insignificant, has no shield from the common law when his privacy is grossly interfered with and abused. If this Bill becomes law, the present Government would have to stop agonising and come to a conclusion about their final decided view on a distinct right of privacy, giving access to injunctive relief and damages.
Article 10 on freedom of expression has already been of great consequential effect, not least in the speeches in the Judicial Committee of this House in Bookbinder 1163 V. Derbyshire, where an encouragingly fresh view was taken about what proper restrictions on free press comment ought to be in this country. I echo, if I may, the tributes paid to the noble and learned Lord, Lord Scarman. I am sorry that he has not been present tonight, since he has been a lighthouse and a beacon to so many lawyers, students and practitioners over so many years.
We cannot simply say, "We do it better than foreigners", because experience sometimes demonstrates the contrary. As a country, a society, a parliamentary democracy and a legal system, we should be able to be sufficiently confident in our own virtues to recognise that an established framework can be a benefit. If we know that the convention is part of our domestic law, we are able to frame our judicial conclusions, legislation and general approach to individual human rights in a different way.
There is no cause for this country to be faint-hearted. We have plenty of historic traditions which have life only if they develop. The questions that I have put forward have been quite limited because, as always, I am obedient to the commands of the Lord Chief Justice and I intend to be brief. These are just a few matters which will arise if the Bill becomes law. It will improve the quality of political life in this country. It will transform people's attitudes to rights and responsibilities. It will provide a useful corrective for an Executive—I do not restrict that remark to the present Government—which has had insufficient control over the past 35 years. The control which has been offered has been substantially provided by the judiciary and not by what has been an over-acquiescent Parliament.
I recognise that those preliminary considerations are few. There are many others that we shall have to deal with on future occasions. I think the fact of their existence demonstrates the value of the Bill, in respect of whose introduction I believe the noble Lord, Lord Lester, deserves our full gratitude.
§ 10 p.m.
§ Baroness Blatch
My Lords, the preservation and development of the rights and freedoms of the individual are central to effective and legitimate constitutional arrangements. This evening's debate has demonstrated the proper seriousness with which your Lordships address these matters, and the quality of this debate is testimony to that. I welcome this opportunity to set out the Government's policy on a Bill which raises issues of great importance.
It may be helpful for me at the outset to summarise the Government's position. It is in three parts. First, we consider that our present arrangements, both in principle and in practice, provide properly and effectively throughout the United Kingdom for the securing of rights and freedoms, including but not exclusively, those in the European Convention on Human Rights. Secondly, the claimed advantages of incorporating the Convention into our domestic law are, in our assessment, few and arguable. Thirdly, and by contrast, we believe that the disadvantages of incorporation would be considerable and fundamental. Notably, incorporation would strike at the constitutional principle 1164 of parliamentary supremacy. The areas of public policy covered by the general principles set out in the convention have traditionally, and rightly, been the province of Parliament rather than the courts.
Turning then to the principle of our present arrangements, the Government do not consider that it is properly the role of our legislature to purport to confer rights and freedoms, such as those in the European Convention, which are in fact already enjoyed by all members of society. It is central to our position, which is the same position as that taken by successive governments before us, that the rights and freedoms recognised in international instruments to which the United Kingdom is party, including those in the ECHR, are inherent in the United Kingdom's legal systems, and are protected by them and by Parliament, unless removed or restricted by statute.
§ Baroness Williams of Crosby
My Lords, I apologise to the noble Baroness for interrupting and I shall not do so again. If it is true that all the rights and liberties of individuals are adequately protected under the present British arrangements, why have so many cases which have gone to Strasbourg been decided against the views of the British courts?
§ Baroness Blatch
My Lords, I shall deal with cases that go to Strasbourg in a moment. What is afforded is that all the national laws of the country, together with the rights backed by the European Convention, exist and are available to all our citizens. What we are talking about and what the debate has been about —and it is interesting to me, after listening to all the contributions—is not whether the citizens enjoy the protection, it is about the mechanisms, the efficiency and effectiveness of using the system. I shall say to the House that I think that in terms of the mechanisms and with all the protections of the ECHR, the arrangements that we have in place and the protection of our national law, the citizens of this country are not in any way disadvantaged. The noble and learned Lord, Lord Donaldson, made the points rather more eloquently and convincingly that I have been trying to make.
It is entirely consistent with this position that the Government attach great importance to the convention and take most seriously the United Kingdom's obligations under it. As we have been reminded earlier in this debate, the United Kingdom played a leading role in drafting the convention. Created very much with the horrors of the defeated war time regimes in mind, it was intended to give binding effect to the guarantee of various rights in the United Nations Declaration of Human Rights which had been adopted in December 1948. We were among the first states to ratify the convention, as long ago as 1951; and, again, we were among the first major countries to subscribe, nearly 30 years ago, to the right of individual petition to the European Commission of Human Rights, and to accept the compulsory jurisdiction of the European Court of Human Rights.
Our present arrangements already provide for our commitments under the convention to be taken into proper account in our governmental, legislative and judicial systems. Our obligations under the convention 1165 are systematically and carefully taken into account by Ministers and officials in the formulation and application of government policy, and in the preparation of draft legislation.
As regards the courts, judgments of this House have made it clear that the United Kingdom's international human rights obligations are part of the legal context in which the judges consider themselves to operate. For example, the judgment in the case of Salomon v. the Commissioners of Customs and Excise, stated—if I may be permitted to quote from it:There is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred.Another test of the seriousness and importance which the Government attach to the convention is our record in remedying breaches of the convention where these occur. If I may, I shall address the contention that incorporation might further minimise such breaches more fully later in my remarks. Perhaps it may suffice for the moment for me to say that, in our view, non-incorporation is not the reason why the United Kingdom is from time to time found to be in breach of the convention. Instead, the answer to that lies partly in the broad and general provisions of the convention itself—which are inevitably subject to different and changing interpretations—and partly in the inevitability of flaws in any human contrivance. I could not have explained that more eloquently than the noble and learned Lord, Lord Donaldson.
If and where the United Kingdom is found to be in breach of the convention by the European Court of Human Rights and the Committee of Ministers of the Council of Europe, effective arrangements are in place for remedying the matter. Any necessary changes in the law or administrative practice are made as soon as possible. The United Kingdom's record in this respect is second to none: of the 89 cases that are currently on the books of the Council of Ministers as awaiting substantive resolution under Article 54, only three arise from the United Kingdom, of which two relate to judgments given as recently as October 1994.
I come now to the second element in the Government's position; that is, our assessment of arguments made for incorporation. We have to ask in what respects, if any, incorporation would enhance the enjoyment in the United Kingdom of the rights and freedoms provided for in the convention. Any answer to this must entail a degree of speculation. But one objective test is to compare the United Kingdom's performance with that of other states party to the convention which have incorporated it into their domestic law. Information is available on which to compare both the extent to which, in the first place, states are found in breach of the convention; and the extent to which, in the second place, when such breaches are found, the necessary remedial action is taken by the countries concerned. By both these measures, the United Kingdom's record is good, and better than that of many countries which have incorporated the convention into their domestic law.
1166 I noted that the noble and learned Lord, Lord Taylor, rather chided me on the possibility that I might introduce comparative figures. But I do not believe that we can dismiss this matter lightly. This debate has centred very much on speed, effectiveness, efficiency and justice for those at the receiving end. Such comparisons are very important.
We repeatedly hear claims (and we have heard them again in this debate) that the United Kingdom has a poor record before the convention institutions. In fact, such claims are ill-founded. In considering the figures for findings of violation, account should be taken both of the relative population size of states which are party to the convention and the date of acceptance of the right of individual petition. In the case of the United Kingdom, that was many years earlier than numerous other countries, including France, Italy, Portugal and Switzerland. Taking these factors into account, the United Kingdom is well down the so-called "league table" for breaches of the convention. We are 15th overall, below many countries which have incorporated the convention into their domestic law, including Switzerland, Italy, Austria, Belgium, the Netherlands, Portugal, France and Finland.
Comparative information on practice in taking action to remedy breaches of the convention tells a similar story. I noted earlier that the United Kingdom has an excellent record in this regard. Information provided by the European Commission of Human Rights shows that the majority of cases in which remedial action is outstanding arise from Italy, France, Belgium, Greece and the Netherlands. What all these countries have in common is that they have incorporated the convention.
Comparative information also casts doubt on the contention that non-incorporation places citizens at a real disadvantage in seeking to remedy possible breaches of the convention. It is far from certain that being able to litigate the convention in our courts would lead to a reduction in the number of cases, or to more rapid disposal and resolution of cases overall.
Although alleged violations of the convention may be considered in the domestic courts of countries where it forms a part of the law, what happens is that a large number of those cases still find their way to the European Commission and Court of Human Rights, where they must be examined afresh. For example, in 1994 62 allegations of violation were referred to the Austrian Government; 723 allegations to the Turkish Government; 118 allegations to the French Government, and 356 allegations to the Italian Government. Those are all countries which have already incorporated the ECHR. During the same period 46 such allegations—only 46—were referred to the United Kingdom. That would suggest that incorporation is hardly a way of reducing or speeding up the handling of cases.
Finally, as regards perceived merits, the delay in securing a decision or judgment under the convention, to which advocates of incorporation also sometimes refer, affects all applicants, irrespective of whether the countries concerned have or have not incorporated the convention. These delays are a matter of concern and one on which we, with other states party to the convention, have acted. Over recent years the United 1167 Kingdom has consistently played a leading role in the discussions in the Council of Europe which have resulted in various reforms of the ECHR procedures aimed at the speedier conduct of business. That work culminated most recently in Protocol 11 to the convention which provides, among other things for the present, part-time Commission and Court to be replaced by a single permanent court. The United Kingdom signed Protocol 11 as soon as it was available for signature. That was last May. We ratified the protocol last month, making us the fourth of the 33 states party to the convention to do so.
I come now to the disadvantages of incorporation which, as I indicated, the Government find serious and conclusive. As I have already said—and I make no apology for repeating—incorporation would strike at the long-held principle of parliamentary sovereignty which lies at the heart of our system of parliamentary democracy. The areas of public policy covered by the general principles set out in the convention have traditionally, and rightly, been the province of Parliament rather than the courts. Under our constitutional arrangements, it is for Parliament to enact detailed legislation on matters affecting the rights and liberties of the individual and to decide where the often difficult balance between competing public and individual interests is to be struck. In doing so, of course, it must have regard to the United Kingdom's obligations under the convention, as indeed it must in respect of all the United Kingdom's international obligations. Nevertheless, the final decision on such matters remains with Parliament. In our view they should continue to remain with Parliament.
That is a vital merit of our present arrangements. They provide that, if and when change is needed, often in areas of keen social and public interest, it is our democratically elected and accountable Parliament which decides how and when any such changes should be made. Among other things, that helps to ensure that change carries public support and understanding.
By contrast, to incorporate the convention into domestic law would transfer that final responsibility to the judiciary. United Kingdom judges would have to decide whether provisions approved in detail by Parliament, and clear in their meaning, offended against the general principles of the convention and, if so, whether effectively the courts should strike down that legislation. The question here is whether it is desirable or appropriate for these matters to rest with judges who are not directly accountable to the people rather than with democratically elected Members of Parliament. The Government's view is that the judges are not the right and appropriate people to be left with that power.
The Government also consider that incorporation would entail serious practical problems. In particular, incorporation would, in our view, have an adverse impact on the work of our courts. We could reasonably expect that, in innumerable challenges to action by public authorities, the convention would be invoked. Each complaint reaching the courts would have to be tried by reference to the principles of the convention but without the benefit of the initial screening process 1168 carried out by the Commission which currently sifts out as unfounded a very large number of cases—in excess of 80 per cent.
Further, if incorporation took the form the noble Lord's Bill proposes, the potential for allegations of "breach of statutory duty"—a key provision in the Bill—would be enormous: every time someone disagreed with, say, a decision by an immigration officer or social worker, proceedings for breach of statutory duty under the Bill could be instituted. These various factors could lead to a great deal of complicated and time-consuming litigation in the courts, with an inevitable effect on the conduct of other court business and without any real and corresponding improvement to human rights in practice.
The noble Lord, Lord Lester, in a very eloquent introduction to the Bill which I enjoyed, said that the courts can already strike down provisions of United Kingdom primary legislation if they conflict with European Community law. I accept that the European Court of Justice and our domestic courts can suspend the operation of UK primary legislation where it conflicts with European Community law. There is no disagreement with us there. Such cases have, however, been very rare indeed. The nature of the international obligations which the UK assumed on joining the European Community on the one hand, and by ratifying the European Convention on Human Rights on the other, are nevertheless different. Our obligations under European Community law tend to be narrow and well defined while those under the ECHR are broad and general in nature. In joining the European Community, the United Kingdom was obliged to accept that Community law could have the effect of suspending any national law with which it conflicted. We could not have joined without accepting that. In the case of the ECHR, however, we are under no such obligation.
The convention recognises that contracting states have a choice as to whether or not to incorporate the convention in domestic law and as to how best to implement the Court decisions. If the European Court of Human Rights decides that our law does not satisfy the requirements of the convention in a particular case, it is for Parliament to decide how our domestic law should be amended. Until it is amended, it remains in force.
I submit that it is a far more satisfactory state of affairs than that proposed under Clause 1(3) of the Bill, which would give every judge and every magistrate in the country power to decide not to enforce the law of the land if he or she, by their own judgment, formed the view that any person would thereby be deprived of any of the rights and freedoms set out in the convention. That really would represent a shift of power from the sovereignty of Parliament to the judiciary.
The noble and learned Lord, Lord Taylor, mentioned that the extension of judicial review had weakened the case against incorporation. With great respect to the noble and learned Lord, that disregards the fundamental difference between judicial review and incorporation. In considering applications for judicial review, for example, the court is not concerned with the merits of a particular decision or a particular policy. It is concerned 1169 only to ensure that the appropriate procedures were followed in reaching that decision and that the decision was within the powers given by Parliament to the public body concerned. Incorporation, as proposed in the Bill, would require the courts to address the merits of decisions made by Parliament on matters of public policy and set down in detailed legislation. It would require the courts to adopt a much wider role very different from their current function in cases of judicial review.
The noble Baroness, Lady Williams of Crosby, talked as though the citizens of the United Kingdom would not enjoy the protection of the ECHR unless the Bill was accepted for incorporating the ECHR into United Kingdom law. I have to remind the House that it was the United Kingdom which helped to draft the European Convention on Human Rights legislation. We were one of the first countries to sign the convention. We have a very good record, as I have set out, working within it. Whether we have incorporation or not, there is no disadvantage to United Kingdom citizens—either given the mechanisms that are in place at the moment in terms of delay or in terms of effective decisions at the end of the day. Full protection is afforded to all citizens.
The noble Baroness, Lady Williams of Crosby, implored us not to stand in the way of the international conventions but to encourage and support them. We have not stood in the path of ECHR legislation. As I say, we drafted it and we have supported it. We are bound by it and, as I have said, we have a good record of operating within it. Therefore, no citizen of this land is disadvantaged by that.
It has been my aim to indicate why we consider that incorporation is not necessary to secure the rights and freedoms protected under the European Convention on Human Rights in our country. Claims that incorporation would enhance enjoyment of those rights and freedoms are arguable and are certainly not supported by the comparative performance of countries which have incorporated the convention. There are substantial objections to incorporation both of principle and practice. The fact is that whether or not the convention has been incorporated into the domestic law of a country bears no relationship to how well that country affords legal protection for its people.
The drawbacks of incorporation are not minor matters but involve major changes to existing constitutional arrangements which have developed in this country over many hundreds of years. The Government remain unconvinced that the Bill would mark an advance in the protection of human rights in the United Kingdom sufficient to justify such a major departure from our current constitutional arrangements. Over a very long time the United Kingdom has developed a careful network of arrangements to ensure good government and fairness, including parliamentary sovereignty and full participation of both our Houses, ministerial accountability and judicial review.
To elevate the convention to the status of the primary source of good government and fairness would run the risk of upsetting the balance of arrangements for doubtful advantage, if any. This is a Private Member's Bill and the Government, therefore, would not propose 1170 to vote against it. However, the Government consider that incorporation is undesirable and unnecessary both in principle and in practice and for those reasons would not be able to support this Bill.
§ 10.22 p.m.
§ Lord Lester of Herne Hill
My Lords, on the last occasion when a Bill of this kind was introduced into your Lordships' House, in winding up the Second Reading debate Lord Broxbourne began:My Lords, that, naturally was a disappointing wind-up by my noble friend the Minister".—[Official Report, 10/12/85; col. 194.]I hope that on this occasion the Minister will not mind my saying that this too has been a disappointing speech on behalf of the Government—for this reason. It would be perfectly open to the Government to approach the Bill in a constructive way, seeking, as many of the judges in your Lordships' House have done in the course of this remarkable debate, to focus on those aspects of the Bill which in the Government's view need to be improved but not opposing its central thrust. I very much hope that when this remarkable debate is read and considered by the Minister and her colleagues they might feel able to take a more positive view at a later stage if the Bill is given a Second Reading.
Perhaps I may say one or two things without wishing to detain your Lordships for long after what has been a remarkable debate. First, I have read all the previous debates on similar attempts to incorporate the convention. This occasion is quite different. In the first place, this is the first occasion on which the senior serving judiciary have with one voice, and a powerful dissenting voice from a very distinguished former Master of the Rolls, expressed the strong view that the time has come to give the people of this country really effective domestic remedies in our courts. That has never happened before.
Secondly, the noble Lord, Lord Williams of Mostyn, has spoken not just on his own behalf but on behalf of the main Opposition party, making clear their determination that a Bill of this kind should be enacted. That again is a complete break from all previous debates.
Thirdly, the noble Lord, Lord Cocks of Hartcliffe, raised a number of matters which I have not seen referred to in previous debates on this subject. In case I forget to deal with them all, perhaps I may reassure the noble Lord on three points. First, the Bill will not touch the rules of my former club, the Garrick Club. Its members can continue freely to exclude women without being affected by the Bill.
Secondly, I am not here holding a brief for Charter 88. The noble Lord made it sound like a communist organisation of a most insidious kind. He spoke as though he was Senator Joe McCarthy. That is not part of this debate. Your Lordships' views are not formed by being lobbied. Each Member of the House speaks for herself or himself.
Thirdly, the noble Lord is entirely mistaken in thinking that the proposal that was made by the noble Lord, Lord Alexander of Weedon, the noble and learned Lord, Lord Simon of Glaisdale, the noble Lord, Lord Irvine of Lairg, and myself for better scrutiny by this 1171 House of primary and subordinate legislation to see whether it complies with the European convention is some kind of lawyers' ramp designed to encourage litigation or line the pockets of the Bar. That is completely misguided. The whole purpose of that proposal—not a Charter 88 proposal—is to reduce litigation by ensuring as far as one can that our legislation complies with our international treaty obligations. So the noble Lord, Lord Cocks, with his conspiracy theory need not worry about that any further.
In my opening speech, I quoted some words by a great American judge, Judge Learned Hand. As I listened to this extremely distinguished debate, I was reminded of some other words of that great judge when he said,The spirit of liberty is the spirit that is not too sure that it is right".I am not at all sure that I am right in the precise way in which the Bill has been formulated. All that I am confident of is the diagnosis that there is a serious constitutional and legal problem which needs to be tackled by legislation on these lines.
Since the Minister shakes her head, perhaps I may give the House one example to serve for all. As your Lordships know, there are many examples of serious breaches of the convention which have arisen from the common law, such as Spycatcher, Harriet Harman and Thalidomide; which have arisen as a result of legislation, such as the closed shop case; and which have arisen as a result of administrative discretion, such as the Golder and Silver prisoners' correspondence cases, the detention of mental health patients, and so on.
I should like to focus on one pending case—it is pending before the European Commission of Human Rights—to illustrate the gravity of the problem upon which, in my respectful view, the noble and learned Lord, Lord Browne-Wilkinson, rightly focused when he said that the main problems are not the clear, blatant and deliberate breaches by Parliament, but inadvertent breaches by over-broad delegation of power to Ministers and civil servants which then lead to breaches of the convention.
I refer to a case that is being brought by the Fair Employment Commission, a public authority in Northern Ireland, against the United Kingdom in respect of Ministers' certificates blocking access to industrial tribunals where Catholics complain of religious discrimination in employment in Northern Ireland. If those complainants were women and they were complaining of sex discrimination in employment and, as was the case some years ago, the Minister issued a certificate blocking their claim to access to justice in an industrial tribunal, they would have an effective domestic remedy straight away in the industrial tribunal because, under European Community law, a Minister's certificate cannot breach the European rule of law. The Luxembourg Court so ruled in Johnstone v. The Chief Constable of the Royal Ulster Constabulary. So women across the United Kingdom cannot have their sex discrimination claims blocked by ministerial fiat, but they can (because Parliament has authorised it) have them so blocked if the claim is based on religious 1172 discrimination. The only remedy open to such alleged victims is to take their case to Strasbourg. Because all the new democracies are clogging up the courts, as we are, six or seven years later—by which time they may be old and unemployable—they may get a remedy.
That is a problem. I can describe many others, but I promised not to. The Government will be pleased that there are not domestic remedies because they prefer, understandably, as all previous governments have, to play it long; to wait as long as they possibly can for the Strasbourg institutions to rule; and meanwhile, the ordinary men and women affected by that practìce have no domestic remedy. English judicial review cannot reach the problem because the statute has authorised the issuing of that certificate; the purpose stated is deemed to be conclusive; the common law is helpless; and there are no positive rights for our citizens.
The central object of the Bill is to place our courts in exactly the same position as the European Court of Human Rights—no more and no less. Sovereignty was passed from this country to Strasbourg on 1st January 1966 when the first Wilson government agreed that there should be a right of petition to the European Commission and Court of Human Rights. It passed because the judgments of that court are binding upon Parliament as well as the courts and the public administration. I regret to say that the decision was taken without even a Cabinet committee discussing it. Therefore, it is not altogether to the point to speak of the sovereignty of Parliament. Parliament is no longer sovereign. It is bound in international law to comply with the European Court's judgments.
The purpose of the Bill is to return some real sovereignty and power to our own courts so that they can have the first bite at human rights violations before cases go to Strasbourg. I should like to make it clear that, if the Bill is seen in any way to threaten the right of a future Parliament to override the convention in extreme circumstances, or for that matter to amend the Bill of Rights in any way, it is not intended to fetter parliamentary sovereignty at all, and it will be sensible for it to be amended for that to be made clear.
I hope that the noble and learned Lord, Lord Donaldson of Lymington, will forgive me if I do not seek to persuade him to take a different view of the matter. I am a poor advocate. I have argued before him as an advocate many times, and I have never persuaded him to take the convention in the way that I hoped he would, and I shall not succeed now. With great respect to him, perhaps I may leave aside the general arguments and philosophy and go to the particular points made by the noble and learned Lord the Lord Chief Justice, Lord Taylor of Gosforth, speaking on his own behalf and that of the noble and learned Lord, Lord Woolf, and the noble and learned Lord, Lord Browne-Wilkinson.
I am intimidated to be faced by three jurists of such eminence, each of whom has looked so carefully at the Bill. Having heard them, perhaps I may say this—these are all points that would need to be pursued in Committee—first, I respectfully agree that Clause 4 is too broad and too rigid in creating a constitutional tort with an apparent right to damages. It needs to be amended so that the remedies, as the noble and learned 1173 Lord, Lord Taylor, said, would be discretionary, and would of course be capable of including compensation, but not as of right.
Secondly, I again agree that there is a need to ensure that Parliament can derogate under our domestic law, as it is entitled to under Article 15 of the convention. Article 15 is incorporated, and our law should match that right to derogate.
Thirdly, I agree that there is a need to ensure that parliamentary sovereignty is preserved expressly; and, fourthly, I agree with noble Lords that there is a problem about the choice of the appropriate court which is to tackle convention problems. The natural court is the Queen's Bench Division, the Divisional Court, acting under Order 53. But I respectfully disagree with the notion that in every case where a convention point arose there would have to be what the noble and learned Lord, Lord Donaldson, happily described as "convention blight"—a situation in which a case had to be halted in its tracks while a possibly hypothetical convention point was referred to a more senior court. In my view, it is 1174 more sensible to make the litigant take his or her convention point in the appropriate court, get the facts found and then have it dealt with thereafter.
The noble and learned Lord, Lord Browne-Wilkinson, suggested that there was a danger that one might be going too far by one's approach to statutory interpretation. My fear would be that the New Zealand approach would go scarcely further than the existing approach in this country of a presumption of conformity with the convention. But I strongly agree that most cases could be solved by a formula of that kind.
I have spoken for too long and apologise for doing so. However, I thought it right to try to deal with some of the points. I hope that I have succeeded in showing that at least I understand the problems, even if I do not have answers to all of them. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.