HL Deb 29 March 1995 vol 562 cc1692-702

7.55 p.m.

Report received.

Clause 1 [Incorporation of European Convention on Human Rights into United Kingdom law]:

Lord Cocks of Hartcliffemoved Amendment No. 1:

Page 1, leave out lines 12 to 21 and insert:

("(2) The provisions set out in subsection (I) above shall—

  1. (a) serve as an aid to the construction of primary and secondary legislation; and
  2. (b) be taken into account in equity and at common law, so that effect may be given to them in any legal proceedings in the United Kingdom in accordance with the principles established by the jurisprudence of the European Court of Human Rights.

(3) For the purposes of this section the procedure at first instance and on appeal shall be governed by such Rules of Court or Practice Directions as may be made.").

The noble Lord said: My Lords, in moving Amendment No. 1, standing in my name on the Marshalled List, I shall speak also to Amendment No. 7, which is purely consequential. If your Lordships feel able to agree to Amendment No. I, then Amendment No. 7 may be accepted by the House without a Division.

Although this amendment was discussed and voted on at Committee stage, I bring it forward for two reasons. First, the Division which took place on the amendment at Committee stage showed a difference of only one vote in the totals. I felt therefore that the House might have wished to reflect on the matter. Also, since the Committee stage debate, further examples have come to light which give grave cause for concern over the path down which the House is being asked to go.

During the Committee stage, I referred to a specific case which was well reported in the press. The Financial Times of 10th February this year said, Ministers and Opposition leaders united in the Commons yesterday to condemn a decision of the European Court of human rights ordering the Government to pay nearly £14,000 to a convicted drug trafficker".

I said at that time that if laws were to be respected and obeyed, they had to be understood by people and we had to carry people with us. That sort of decision was extremely undermining.

Since the Committee stage there have been further examples—I do not wish to detain or weary the House, and shall therefore limit myself to one example only—of which one occurred in the Daily Mail of Saturday 4th March. Under a heading, Blasphemy shock over erotic video of Christ",

the report went on to say that, Britain's blasphemy laws are under threat from Europe after a ruling that a film-maker can fight a ban on an erotic video about Jesus Christ. The Strasbourg-based European Commission of Human Rights announced last night that it believed Nigel Wingrove's right to freedom of expression had been breached

It said it was referring the case to the European Court of Human Rights. If the court upholds the Commission's preliminary findings, as it does in the vast majority of cases, the Government may be forced to water down or scrap 400 year-old laws intended to protect religious beliefs. The article then goes on to give distasteful details of the film itself.

I am a son of the Manse. My father was a Congregational minister and instilled into me values which I have tried to maintain throughout my adult life and also in society wherever I had the opportunity to do so.. I know that somewhere he is watching this debate and listening to me. I would be betraying him if I did not say that enough is enough; we cannot sacrifice totally the control and sovereignty which we have at the moment. We must retain some control otherwise all our efforts to keep and improve standards in society today would be undermined without any control at all.

I beg your Lordships to think again on the matter. We owe it to ourselves and to our children—and, indeed, to their children—to maintain standards in society. We should not allow that sort of thing. I beg to move.

8 p.m.

Earl Russell

My Lords, as always, the noble Lord, Lord Cocks of Hartcliffe, is most entertaining and capable of making his argument sound fresh. However, I am not quite so certain about his draftsmanship. As the noble Lord spoke to Amendment No. 7, I think that it might be in order to look at it now. The noble Lord proposes to add to the Long Title the words, "in the disposition of'; that is, to replace the words, into the law of the United Kingdom", with the words, in the disposition of the law of the United Kingdom". In the presence of noble and learned Lords, I would be extremely rash to develop any argument at length. But I shall listen with interest to see whether any of them thinks that those words have any precise legal meaning and whether, if they were to be before them, they would know what to do with them.

The noble Lord's attitude to the law occasionally reminds me of that of King James I who believed very firmly that, if only one supplied a sufficiently large dose of common sense, all that legal learning would be unnecessary. I believe that the drafting of the noble Lord's amendment illustrates perhaps why that approach to the law really left something to be desired,

The same points could be made about the construction of Amendment No. 1. In paragraph (a) the noble Lord wants the provisions in subsection (1) to, serve as an aid to the construction of primary and secondary legislation". Again, subject to correction, I wonder whether he has got that provision in the wrong category. There are rules which are aids to the construction of laws, such as that penal statutes are to be construed strictly. However, taking one law as an aid to the construction of another raises a certain number of technical problems. It does not lay down any primacy, provision or procedure for the interpretation of conflicts. In fact, I am not quite sure what it means. Putting law on the statute book which is drafted in such a way that one does not know what it means may tend to the enrichment of lawyers, but I doubt whether that was the noble Lord's motive.

I have the same reservations about the wording in paragraph (b) of Amendment No. 1. The amendment proposes that the subsection should, be taken into account in equity and at common law". Does that, or does it not, have the same meaning as the usual legal words "have regard to"? I can imagine a court spending a good deal of time discussing that point. Indeed, I remember that we once did so in this House and I believe that the noble Lord, Lord Renton, is remembering that occasion. At that time I believe that the noble and learned Lord, Lord Simon of Glaisdale, said that the phrase meant almost nothing at all.

The noble Lord said a great deal about the defence of law, sovereignty and so on. But it is also a principle in which this country has taken a certain amount of pride that it does keep its international obligations. When it signs a treaty, it means it. We are discussing a treaty that was signed by a government of the noble Lord's own party under the leadership of the late Lord Attlee, whose attachment to the traditions of this country and of this House is not likely to be called into question. Therefore, if the treaty was so very terrible, I wonder why that government agreed to it and whether it has since that time had quite such terrible effects as the noble Lord suggests.

We have lived with the European Convention since 1950. We are not dead yet. If we could have remedies under it in the courts of this country instead of having to travel for them, it might make litigation a good deal cheaper. I hope that that is an object which the noble Lord and I might possibly have in common.

Lord Renton

My Lords, I did not intend to intervene in what I hoped would be a very short debate. However, as the noble Earl, Lord Russell, was kind enough to refer to me, the least I can do is to support him; and, for the reasons that he gave, I gladly do so. I do not believe that there is any other occasion in our statute law in which we say that the provisions of a particular subsection shall, serve as an aid to the construction of primary and secondary legislation". Presumably that means the whole of our statute law and of the subordinate law made under it. Quite frankly, I think that that is a remarkable proposition which no person with experience in the interpretation of our laws could possibly accept.

Lord Scarman

My Lords, the amendment was moved with eloquence. As I listened to the noble Lord, I felt that he really believed that, if the amendment became law, it would clarify the law and rescue it from the hands of those nasty foreigners across the Channel. However, that is not the position at all. Whatever may be the intention of the noble Lord who moved it, it is a wrecking amendment. It takes the guts out of the Bill. But what are the guts of the Bill? They are that we should ensure that those men, women and children who live in this country and suffer an infringement of their human rights should have a remedy in this country in British courts. The amendment would, in fact, leave the law in precisely the same, but a slightly more muddled, condition than it is today.

If one looks at the judgments of their Lordships over a period of quite a long time, it will be seen that the sort of language which is used in the amendment finds its echoes in the words: "This is as far as we can go, but we can get no further". It is important that we should make available to every British citizen a remedy in this country if he thinks that his or his children's human rights have been infringed. That is precisely what the Bill provides. It is for that reason that we must have—and this has been said before—the words of Clause 1 in the Bill as follows: Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms … [shall be] incorporated in the law of the United Kingdom, and shall be given full legal effect in accordance with this Act". That enables a citizen to go to an English or a British court and obtain relief. The amendment would destroy that right and the very remedy that we are seeking to provide.

I have one further comment to make. One sometimes forgets that the European Convention assumes that there will be a national remedy available to the citizens of the countries which are party to it. For those who wish to know, I have in mind Article 13 of the convention. It assumes that the first remedy is with authorities similar to courts, if not the courts, but, nevertheless, in the courts of the country concerned. We do not have that provision now except on occasions by the ingenuity of the judges who manage to try to get as near as they can to legal incorporation. I say no more except that it would be a disaster if this amendment, however elegantly put forward, should be accepted.

Lord Slynn of Hadley

My Lords, I support completely the thrust of this Bill. It is extremely important that the convention becomes part of domestic law for three very brief reasons. First, because I believe that judges in our national courts need to be able to deal with possible or alleged infringements of social and economic rights which they cannot deal with unless the European Convention is made part of domestic law. Secondly, I believe that it is right to adopt it because it seems quite absurd that many cases which could very well be dealt with by our national judges in this country have to go off to Strasbourg to be dealt with by a court consisting of judges from the Council of Europe, who necessarily take a very long time to do so.

Thirdly, it is necessary to make this convention part of our domestic law in order that we have uniformity between national disputes and those which fall within the European Union remit. I do not believe that we shall ever achieve full and satisfactory protection of human rights until the convention is made part of domestic law.

I say that as a preliminary. This amendment will emasculate what is intended by subsections (1) to (5) of the clause. It is much more satisfactory that the provisions of the Bill as it now stands should be adopted rather than that we should adopt a provision that what is set out in subsection (1) shall merely be as an aid to construction and taken into account. It is much more satisfactory that we should follow the terms of the Bill. For those reasons, I believe that the amendment would be a step towards emasculating the overriding effect of the Bill, and I am therefore opposed to it despite the moving arguments advanced by the noble Lord.

The Minister of State, Home Office (Baroness Blatch)

My Lords, these amendments appear in some respects preferable to the current Clause 1(2) and (3) in this Bill. The Government explained their position on provisions in this form at some length during the Committee stage of this Bill and in the debate on the similar amendments proposed by my noble friend Lord Campbell of Alloway who is not in his place tonight.

Noble Lords

Yes, he is!

Baroness Blatch

My Lords, I express deepest apologies to my noble friend.

It may be helpful if I remind the House briefly of the Government's views on this point. The Government's position is that in construing legislative provisions, the courts should look at the words of those enactments first, and only in the case of ambiguity should they then look to see which of the possible meanings is consistent with the UK's international obligations. The amendments to Clause I under discussion change that position: they would enable the courts to have regard to the convention even where there was no such ambiguity. It is the Government's view that, where the words of Parliament are clear, they should be given effect to by the courts. It is not for the courts to decide that domestic enactments, whenever passed, should be interpreted so as to accord with developments in current European social policy as reflected by decisions of the court in Strasbourg. That really does constitute a shift of sovereignty.

So far as the common law is concerned, the amendment would appear to allow the courts to overturn long-established provisions where today Parliament might properly regard it as its function to change the law. The amendment would also appear to mean that challenges by way of judicial review to the exercise of discretion could pray-in-aid the convention. No Minister would set out to exercise his discretion so as to run foul of the convention; but the certainty is that there would be more applications for judicial review.

The Government consider therefore that, even with these amendments, the Bill would amount to a significant change in the current position, in providing for the convention to be litigated in the courts where now it may not be. For the reasons set out in my speech at Second Reading and during Committee, the Government do not consider that such a change is necessary in order to secure the rights and freedoms protected under the European Convention on Human Rights. Nor do we believe that it would enhance the enjoyment of those rights and freedoms in this country.

I ask noble Lords to take note of the arithmetic that I made available to the House at Second Reading in that no citizen in this country is disadvantaged by non-incorporation of ECHR into our law.

8.15 p.m.

Lord Archer of Sandwell

My Lords, it had not been my intention to intervene in this debate particularly in view of the very distinguished noble Lords who have already intervened. But it seems to me that the noble Baroness and my noble friend are labouring under a common misapprehension. They appear to believe that if this Bill were attenuated, that would somehow deprive the citizens of this country of the rights set out in the European Convention on Human Rights. That is simply not the case. The citizens of this country have those rights already. The Government of this country have ratified the convention. The only question which remains is where and how they have to go in order to enforce their rights. As the noble and learned Lords, Lord Slynn and Lord Scarman have said, the issue is whether they can do that in the readily available courts of this country or whether they have to go to Strasbourg. I have not the slightest doubt that if we were to ask any of my former constituents or those of my noble friend where they would prefer to go in order to enforce their rights, the answer would be clear. Therefore it seems to me that both the noble Baroness and my noble friend are labouring under a complete misapprehension.

It appears that neither of them is very happy with some of the decisions of the European Court on Human Rights. If it encourages them, neither am I. If it comes to that, I am not very happy with some of the decisions of the domestic courts of this country, and I doubt whether anyone is. The fact is that sometimes there are conflicts of human rights and something has to give. It may not be the particular human right which we would prefer to endorse. The alternative would simply be to say that we shall do away with human rights altogether. Knowing the noble Baroness as I do, and certainly my noble friend over as many years as I do, I cannot believe that that is their intention.

Baroness Blotch

My Lords, I wonder whether the noble Lord will agree with me that the United Kingdom is 14th in the league table. Therefore there are 13 countries where the record for violation of ECHR law is greater than ours per 100,000 of the population. Therefore incorporation does not necessarily mean fewer visits to the European courts. The purpose of my objections on behalf of government is that it overrides sovereign parliaments if the judges wish it to if the ECHR is incorporated into English law.

Lord Archer of Sandwell

My Lords, as regards the first point, I prefer not to comment on the human rights record of this country although I accept that there are very many countries with much worse records. But if it is true, as the noble Baroness said, that we have nothing to worry about, then I do not understand the concern about this Bill and why it should embarrass anyone in this country.

If the noble Baroness is saying that many decisions ought to be made by the political process, she may recollect that at Committee stage I said precisely that. I also said that where there is broad consensus that there are many decisions which we can take out of the political process because we all agree that there are certain standards of behaviour which the Government ought to observe towards its citizens, and those are the standards which are embodied in the European Convention. If the noble Baroness is saying that she would like to take those out and that she wished that we had never ratified the convention, I doubt whether the electors of this country would agree with her.

Lord Dean of Beswick

My Lords, on a point of order. Is your Lordships' House in order discussing this issue after the Minister has spoken? If we are going to have a free-for-all, let us have it.

Baroness Trumpington

My Lords, no.

Lord Archer of Sandwell

My Lords, I apologise. The fault is mine.

Lord Lester of Herne Hill

My Lords, I feel diffident about saying very much at this stage because we debated this amendment for over an hour in Committee. On that occasion I recall the noble and learned Lord, Lord Woolf, adjudicating before the vote on the two amendments: the one which is now included in the Bill at Clause 1(3), which was drafted not by me, I hasten to say, but by a former deputy Parliamentary Counsel, which is why it is properly drafted—if I had done it, it would have been a mess—which is based upon the New Zealand Bill of Rights formula. That was one candidate. The other was the candidate which the noble Lord—

Lord Dean of Beswick

My Lords, is it in order for the noble Lord to be speaking now after the Minister?

Baroness Trumpington

My Lords, yes. It is the noble Lord's Bill.

Lord Dean of Beswick

As long as we are right.

Lord Lester of Herne Hill

My Lords, I am grateful. As I was saying, one candidate is now part of the Bill as it was amended in Committee. The other candidate was introduced by the noble Lord, Lord Campbell of Alloway, and is now before the House in this amendment. A vote was taken upon it. It is true that the result was narrow. I hope that I shall be forgiven for saying that I was heartened by the fact that those in favour of the Bill as it stands included several senior members of the judiciary. We have been greatly assisted this evening by the contributions from the noble and learned Lords, Lord Scarman and Lord Slynn of Hadley. Therefore, I feel diffident about saying very much about those two candidates.

However, I should like to comment first on the issue of sovereignty. The object of the Bill is partly to restore sovereignty to this Parliament. If this Parliament exercises its sovereign law-making powers by incorporating the convention into our law, sovereignty will in that way have been returned from Strasbourg to this country by Parliament. Since the amendment that was made in Committee prevents our courts from striking down inconsistent legislation—and expressly makes that clear in Clause 1(3)—the issue of sovereignty, with all respect to the Minister, simply does not arise.

Secondly, although I understand the attack that has been made on the European Convention and the Court of Human Rights, that issue does not arise. As several noble Lords have indicated, we are parties to the convention. The noble Lord, Lord Cocks, has not suggested that we should denounce the convention. The only issue is whether there should be effective domestic remedies by our own courts. The noble Lord would not succeed in his main object, which seems to be to repudiate the convention, if the amendment were to be pressed and voted upon.

Thirdly, the Minister tempts us with statistics about which country is the worst violater of human rights. One can do almost anything with statistics, but I respectfully suggest that what matters is the quality of the violations. I have been arguing cases in Strasbourg for more years than I like to recall, and again and again the pathology of human rights violations in this country involves over-broad ministerial or other discretion conferred under broad statutory powers, leading to violations of the convention, often inadvertently, by public officers. Again and again, for want of effective domestic remedies, the European Court has found this country to be in serious violation. Unfortunately, the quality of the breach has been as serious as the quantity of the violations. I have introduced the Bill in its present form to stop dirty linen being unnecessarily washed in public in Strasbourg.

I refer to the two examples that were given by the noble Lord, Lord Cocks: the case about the retrospective taking of the assets of a drug dealer, and the blasphemy case. Speaking for myself, I only wish that our courts had been able to deal with those two cases first instead of each of them going raw to Strasbourg to be dealt with by the European Court. Therefore, I very much hope that, in the light of everything that has been said this evening, the noble Lord will feel able to withdraw his amendment and that he will not press it further.

Lord Cocks of Hartcliffe

My Lords, I must first apologise to the noble Earl, Lord Russell, for any infelicities which may exist in the drafting of the amendments. I have occasionally referred to the handicap under which the handful of us in this Chamber who are not legally qualified have to labour when dealing with such matters. However, there will surely be opportunities—possibly at Third Reading or in another place—to tidy up any amendments which may be defective. Therefore, I am not unduly concerned on that point.

My noble and learned friend Lord Archer mentioned decisions of the courts here of which he was not very proud. Of course, miscarriages of justice have been acknowledged, but I ask your Lordships whether it is not time to stop knocking this country. Is it not time that we started asking ourselves in how many countries of the world would such miscarriages of justice even be acknowledged, let alone righted? I am very proud of this country. I do not want to sound vain in any way but, frankly, I feel that what I am doing tonight is standing up for the ordinary people of this country by not allowing matters to degenerate into a plethora of legal niceties, with abuse from other countries of a country of which I am very proud. I commend the amendment to the House.

8.26 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 34.

Division No. 1
Astor of Hever, L. Lyell, L.
Balfour, E. Marlesford, L.
Beloff, L. McColl of Dulwich, L.
Brougham and Vaux, L. Melville, V.
Campbell of Alloway, L. Miller of Hendon, B.
Chelmsford, V. Milverton, L.
Cocks of Hartcliffe, L. [Teller.] Monson, L.
Mountevans, L.
Craigavon, V. Moyne, L.
Dean of Beswick, L. [Teller.] Rankeillour, L.
Dean of Harptree, L. Renwick, L.
Donegall, M. Seccombe, B.
Ferrers, E. Sefton of Garston, L.
Glenarthur, L. Selsdon, L.
Harding of Petherton, L. Shrewsbury, E.
Harmar-Nicholls, L. Skelmersdale, L.
Hogg, B. Stanley of Alderley, L.
Kingsland, L. Stodart of Leaston, L.
Lauderdale, E. Stoddart of Swindon, L.
Long, V. Trumpington, B.
Lucas, V. Wade of Charlton, L.
Ackner, L. Lester of Herne Hill, L.
Airedale, L. [Teller]
Archer of Sandwell, L. Lloyd of Berwick, L.
Avebury, L. McGregor of Durris, L.
Browne-Wilkinson, L. McIntosh of Haringey, L.
Carmichael of Kelvingrove, L. Morris of Castle Morris, L.
David, B. Plant of Highfield, L.
Dubs, L. Prys-Davies, L.
Falkland, V. Renton, L.
Fitt, L. Russell, E.
Graham of Edmonton, L. Scarman, L. [Teller]
Gregson, L. Seear, B.
Hacking, L. Slynn of Hadley, L.
Harris of Greenwich, L. Taylor of Gryfe, L.
Irvine of Lairg, L. Thomas of Walliswood, B.
Kilbracken, L. Tope, L.
Leigh, L. Tordoff, L.
Woolf, L.

Resolved in the affirmative, and amendment agreed to accordingly.

8.34 p.m.

[Amendments Nos. 2 to 4 not moved.]

Clause 5 [Short title, extent and commencement]:

[Amendments Nos. 5 and 6 not moved.]

In the Title:

Lord Cocks of Hartcliffemoved Amendment No. 7:

Line 4, leave out ("into") and insert ("in the disposition of').

The noble Lord said: My Lords, I have spoken to this amendment. It is entirely consequential upon Amendment No. 1. I beg to move.

On Question, amendment agreed to.