§ Read a third time.
§ Clause 1 [Incorporation of European Convention on Human Rights into United Kingdom law]:
§ Lord Scarman moved Amendment No. 1:
§ Page 1, line 12, leave out ("subsection (1) above") and insert ("Schedule 1").1272
§ The noble and learned Lord said: My Lords, this is purely a drafting amendment. It would substitute for the provisions of "subsection (1)" in Clause 1(1) "Schedule 1". The schedule sets out the articles of the convention to be incorporated into law and the first protocol. "Schedule 1" is all that need be said. I beg to move.
§ The Minister of State, Home Office (Baroness Blatch)
My Lords, all the amendments in the names of the noble and learned Lord, Lord Scarman, and the noble and learned Lord, Lord Archer, and the noble Lord, Lord Lester, although minor in nature, appear to the Government to be entirely sensible improvements to the Bill as it presently stands. It follows that the Government will not seek to oppose them, notwithstanding their wider concerns about the Bill as a whole.
§ On Question, amendment agreed to.
§ Lord Scarman moved Amendment No. 2:
§ Page 1, line 13. leave out ("serve as") and insert ("be").
§ The noble and learned Lord said: My Lords, this again is purely a drafting amendment, but there is some point in getting the matter right now rather than purely from the point of view of drafting.
Clause 1(2) provides that the provisions shall:
serve as an aid to the construction of primary and secondary legislation".
My amendment would delete the words "serve as" so that it reads the provisions shall:
be an aid to the construction of primary and secondary legislation".
§ Clearly, this is a purely drafting amendment. However, there is a lack of harmony in speaking of words in an Act of Parliament as "serving as an aid". There is almost a degree of subordination of Parliament. The matter is perfectly straightforward if those words are deleted and the word "be" is inserted. I beg to move.
§ On Question, amendment agreed to.
§ Lord Scarman moved Amendment No. 3:
§ Page 1, line 13, leave out ("primary and secondary legislation") and insert ("any enactment").
The noble and learned Lord said: My Lords, again this is a drafting amendment. Clause 1(2) (a) refers to the provisions serving as an aid to the construction of "primary and secondary legislation". That is a long description and a rather academic description of something that could be put in terms which are already used in the Bill. Therefore, I propose to delete the words "primary and secondary legislation" and insert the words "any enactment". The clause would then read:
The provisions set out in Schedule 1 … shall … be an aid to the construction of any enactment".
That covers the whole field of statute law. I chose those words because they pick up and echo subsection (5) in which there is a reference to the meaning of the word "enactment" in the Bill. It indicates quite clearly that the Bill applies to the whole of the United Kingdom. Therefore, any enactment covers the whole of statute law. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 4 not moved.]
§ Lord Scarman moved Amendment no. 5:
§ Page 1, line 16, leave out ("in the United Kingdom").1273
The noble and learned Lord said: My Lords, I beg to move the amendment equally briefly. There is no need to indicate that legal proceedings are "in the United Kingdom". If one deletes those words, the provision states:
The provisions set out in subsection (1) … shall … be taken into account in equity and at common law, so that effect may be given to them in any legal proceedings".
§ It can only be "in the United Kingdom". The additional words are surplusage.
§ On Question, amendment agreed to.
§ In The Title:
§ Lord Scarman moved Amendment No. 6:
§ Line 4, leave out ("the disposition of").
The noble and learned Lord said: My Lords, we move now into a strange world—at least I always find it strange when we start to tinker about with the Title of someone's Bill. Nevertheless, on Report some strange words were introduced into the Title, which now reads:
An Act to incorporate Section 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950 and the First Protocol to that Convention in the disposition of the law of the United Kingdom".
I propose to delete the words, "the disposition of". What on earth do those words mean in that context? The word "disposition" indicates to me that someone has a choice. Does the Bill suggest that the judges should chose whether or not in a specific case the convention should be considered incorporated? Those are dangerous words. I do not really know what they mean. Let us get rid of them. I beg to move.
§ On Question, amendment agreed to.
§ Lord Scarman moved Amendment No. 7:
§ Line 5, at end insert ("and to provide for the interpretation and application of the law.").
The noble and learned Lord said: My Lords, this is an interesting amendment. I propose that certain words should be added to the Title. The words are,
and to provide for the interpretation and application of the law".
I do so in order that it may be perfectly clear that the new clause which entered the Bill on Report—it was the clause moved by the noble Lord, Lord Cocks—should have its purpose reflected in the Title. Quite clearly, the emphasis of the new clause was on interpretation and application of the law.
In a sense, in justice to the noble Lord, Lord Cocks, we should ensure that those words are now in the Title. So far as is relevant the Title will then read,
An Act to incorporate Section 1 of the Convention … in the law of the United Kingdom and to provide for the interpretation and application of the law".
Emphasis on interpretation and application is sound. It reflects what I believe to be the main purpose of the amendment that was moved on Report. I beg to move.
§ On Question, amendment agreed to.
§ 7.16 p.m.
§ Lord Lester of Herne Hill
My Lords, I beg to move that the Bill do now pass.
1274 I should like to express my gratitude to the whole House for the care with which the Bill has been considered, debated and improved. I am especially grateful to the noble and learned Lord, Lord Scarman, who—at great personal inconvenience—has improved the drafting of the Bill and, if I may say so, given wise leadership and unflagging encouragement to those of us who seek to strengthen the effective protection of human rights in this country.
Although the House passed three similar Bills, introduced by Lord Wade and Lord Broxbourne in 1979, 1980 and 1986, this is the first occasion on which the incorporation of the European Convention has the support of the senior judiciary and of the Labour Party. The great majority of noble Lords who have spoken in the debates on the Bill have supported it. That is a source of great encouragement for the future. It is also apparent from recent independent polls of public opinion that this is by far the most popular of all proposals for constitutional reform, being supported by almost three-quarters of respondents.
The Government have argued that the Bill would diminish parliamentary sovereignty. However, as amended, the Bill requires our courts to give effect to Acts of Parliament if they are plainly intended to be inconsistent with the convention. By passing the Bill your Lordships would help to restore rather than to diminish parliamentary sovereignty.
The decision to ratify the convention and accept the right of individual petition was taken by the Government of the day under prerogative powers without any parliamentary debate. Parliament, as represented by this House, now has the opportunity to decide to translate convention rights, freedoms and duties into the law of the land so that British courts can provide British remedies with the European Court of Human Rights acting only as a long stop, where British remedies are insufficient. That would, I submit, strengthen the protection of the civil and political rights of the citizens of this country under the rule of law and greatly influence the role of British law in Europe. It would also give effect to the doctrine of subsidiarity. It would bring the UK into line with the position of all the other contracting states which have incorporated the convention or have constitutional Bills of Rights which match the convention. That is also the position in almost all Commonwealth countries, including Canada and New Zealand.
The passing of the Bill would be likely to diminish the embarrassingly large number of cases in which the UK has been found in breach of the convention—second only to Italy, most of whose breaches result from delays in the Italian legal system. The Minister argued in previous debates that the record is not as bad as it seems when related to population size and to the date on which the right of petition was accepted by the state concerned. That is a fair point, but it does not explain the continuing high level of breaches; nor does it justify the continuing failure to provide speedy and effective remedies in this country, giving us equal protection to that available in the other contracting states.
1275 Perhaps I may give one example from a country of comparable size and complexity, to serve for all—Germany. Germany has accepted the right of petition for 10 years longer than the UK; yet the number of established breaches of the convention is more than three times as many for this country as for Germany. Whereas there are 16 cases against the UK now pending before the European Court, only one case is pending against Germany. That is not because we respect human rights any less but because Germany provides far more effective domestic remedies in its system.
The Lord Chief Justice has kindly expressed his disappointment at being unable to be present today to speak in support of the Bill, as he did at Second Reading. In yesterday's Sunday Times he was reported as saying that:The fundamental freedoms accepted by the Government nearly 50 years ago are not sufficiently protected by the common law and existing statutes".The House will wish to give great weight to that considered statement by the Lord Chief Justice, whose views are shared by the Master of the Rolls and, on the basis of the previous debate, by the great majority of noble and learned Lords.
It was reported in yesterday's newspaper that the Government might take the unusual course this afternoon of seeking to kill the Bill in this House, using their considerable in-built majority. I hope that that report is incorrect because it would deprive the other place of an opportunity to consider the Bill. I should like to think that that is simply an example of misplaced and inaccurate journalism.
Whatever the fate of the Bill this evening, the question is no longer whether Parliament will domesticate the convention but when it will do so. I hope and believe that the people of this country will not have to wait much longer to have their rights properly protected by British law. I also hope that this House, having made the original Bill so moderate and unobjectionable in its amended form, will now decide that it should pass so that it may be available to he considered in another place. I commend the Bill to your Lordships.
§ Moved, That the Bill do now pass.—(Lord Lester of Herne Hill.)
§ Lord Houghton of Sowerby
My Lords, a Bill of this importance requires and should have a better consideration than it can be given in the dinner break in your Lordships' House. We have here some of the most notable and teamed Lords, who have forsaken their knives and forks in order to come to the debate and help us understand the Bill and bring it to a conclusion.
It is a story of government indifference. It is staggering to think that we are considering acting on a convention accepted 45 years ago. Forty-five years ago I was a youngster and it has taken all this time to give me the civil rights that the rising generation was intended to have after the war.
I am in a fog as to whether the European law is incorporated in United Kingdom law. If it is, it is not in the form to which we are accustomed—having our law good for certainty and precision; good for courts to interpret. European law is not always—probably not at 1276 all—in conformity with the form we have evolved for our own legislation. There is no doubt that in some countries the broad outline of the law is what Parliament decides and administration and bureaucracy decide on application and interpretation.
I have a particular interest in some of the cases pending at present before the European Court. I do not know whether I should comment on them. But Britain ought to be protected from the legislative panic which the Government got into in 1991 with the Dangerous Dogs Act. It is causing much trouble, confusion, anger and anguish. It was the product of a government who ran for cover before they were attacked.
I must not dwell on it. We have only an hour and I am waiting for the noble and learned Lords who have kindly come here to speak. We offer a special welcome to the noble and learned Lord, Lord Scarman, a pleasant person to listen to in our earlier debates. The noble and learned Lord, Lord Hailsham, expressed his regret at being unable to attend the debate. He would have been a supporter of the Bill. See what the House has lost in holding a Third Reading of such an important Bill when people are otherwise occupied! It is as if those who want to do a service for their country must give up their dinner to come. That is contrary to all the rules and trade union practices of which I am aware. We ought to have compensation—double time—for being put to such inconvenience.
I support the Bill. I recall with approval the late Lord Wade who used to come here year after year in order to foster the extraordinary departure from our normal legislative ways to incorporate the broader concept of human liberty which comes from Europe. If people do not like Europe, they do not like European law and European methods. I am afraid that even with the enthusiasm that we had all those years ago, all the parties have lost interest in the matter. If anyone had taken notice of it, we would not be talking about the Bill now. The Government would have decided to do something. I have said enough. I heartily support the Bill and hope that noble Lords will rise as one from all Benches to say: "Aye! Content".
§ Lord Scarman
My Lords, I intervene early in the debate because I wish to congratulate my noble friend Lord Houghton and assure him that, whether or not we support the Bill, the stomachs of the House will not suffer. There will be no gastro-enteritis as a result of this debate.
I quickly take the point: my noble friend Lord Lester is absolutely right that the European Convention was one of the most valuable products of victory in Europe. It is providential that the debate should take place in VE week. Victory in Europe was not victory over German arms. That is not what we celebrate. It was victory over the principles and governance of wicked men, led by Adolf Hitler. One of the products of that victory was the European Convention.
We have been arguing the technicalities of the matter. I invite noble Lords to look at the merits. The European Convention was a gift from victory. When we celebrate VE Day, think of it as the victory of the principles of the European Convention over the evil of those to whom the wonderfully civilised German people fell.
1277 It is thought that there is not much common law in the European Convention. No doubt that is because it is called the European Convention on Human Rights and Fundamental Freedoms. We at governmental level took a very large part in drafting the European Convention. There is plenty of common law thought in the articles of Section I of the convention, soon, I hope, to be part of our law. If I may refer to him in a colloquial way, Maxwell Fyfe played a great part in leading a team of draftsmen from this country. One of the senior parliamentary draftsmen of that time, with him, helped to draft the convention. There are packets of common law sense in the convention.
Then why did the government of the day not incorporate it? They had a facile view—shared, I regret to say, over centuries by a great number of our fellow Britons—that English law was so perfect that there was no need to incorporate the European Convention; we had it all. I suppose that that was a legitimate view in 1949 and 1950. It is not a legitimate view now. I shall not go into statistical arguments about how we stand vis-à-vis other signatories to the convention or unhappy experiences in the European Court of Human Rights. That is no part of my task. I shall simply say that there have been enough to indicate that we should look at the common law and see that it gets strengthened. The object of this Bill is to strengthen the common law, and to strengthen common law rights in just those areas where they need strengthening. I mention one example, and I shall say no more. What is the common law of privacy? We could do with a little injection of Article 8 of the convention.
There it is. It is available. But why do we want this Bill now? I shall tell the House why I want it. I want persons present in the United Kingdom, whether citizens or not, who find that they are suffering an infringement of their human rights or fundamental freedoms to go at once to a court and get relief. It is absurd that we should make great efforts to draft this Bill, ratify it—that is to say, make ourselves internationally obliged to comply with it—and then say, "If the common law as laid down by the judges does not touch it, you can't have it, even though it is in the convention. What you have to do is go trotting off in the company of very expensive lawyers to Strasbourg and there see whether you can first persuade the European Commission that you have some sort of case, and then hope that the Commission will push you on to the European Court of Human Rights". That is a monstrous thing to do as we celebrate VE Day. Let us make our contribution to VE Day the incorporation of the European Convention.
§ 7.30 p.m.
§ Lord Renton
My Lords, I must apologise to the noble Lord, Lord Lester, and other noble Lords for not having having been here when he made his speech. I had to detach myself—I hope within the trade union rules, as the noble Lord, Lord Houghton of Sowerby, would say—from a rather special family gathering.
Although I am a loyal supporter of the Government, I strongly favour this Bill. We have a convention to which Britain was a party, which all parties in our Parliament agreed at the time and which gives rights to British 1278 people. It seems a very strange situation that those rights should not be capable of being enforced under our own legal system. The situation is quite absurd.
The noble and learned Lord, Lord Scarman, mentioned the European situation. I remind noble Lords that, so far as the laws of the European Community are concerned, our courts have not only the power but the duty to enforce them. That they should not have either the power or the duty to enforce the rights which every British man, woman and child has under the European Convention in our own splendid courts seems to be an absurd proposition.
I wish to add one other point arising from the speech of the noble and learned Lord. He put forward the proposition that this country played some part in drafting the convention. I do not wish in any sense to put forward my own virtues—I do not think that ! have any. But I have to tell noble Lords that the first draft for the European Court of Human Rights was one for which I had responsibility—I was only a Back-Bencher at the time; I was a delegate to the Council of Europe. M. Rolin, the famous Belgian lawyer who defended Dr. Mossadec at The Hague after the unfortunate situation in Iran, worked on the French text. I worked on the English text. He knew English better than I knew French. He had lived here for a lot of time during the war. I knew a little French and a little of French law. We agreed the two texts for the European Court of Human Rights. It was those texts that were put before the European Assembly for approval. They were slightly altered later, but they were the foundation of the method of working of the European Court of Human Rights. I hope that noble Lords do not mind my just mentioning that, but it seems to reinforce the argument put forward by the noble and learned Lord as to the part that this country has played throughout.
§ The Lord Bishop of Oxford
My Lords, if this House felt able to pass the Bill in its present form, a substantial body of Church people in this country would applaud us. In 1985, the Roman Catholic bishops of England and Wales supported the incorporation of the European Convention on Human Rights into United Kingdom law in principle, as did the majority of the executive committee of the then British Council of Churches a year later.
I had the privilege of being a member of the working party of the Churches of Britain and Ireland which produced Human Rights and Responsibilities in Britain and Ireland, of which mention was made in earlier debates on the Bill in this House. It was one of the strongest recommendations of the report that the European Convention should be so incorporated.
Since that report was published in 1988, thank God, real progress has been made in Northern Ireland. But the peace process is still precarious. There are still very great fears, which could be assuaged by incorporation of the Human Rights Bill into the law of this country. What was written then is no less true today:We have unanimously concluded that the single most important recommendation that we can make in this field is that each of the two states should incorporate into domestic law all the human rights and freedoms which it is already bound by international law to respect and ensure. This can best be done by incorporating the European Convention on Human Rights into the national legal systems of the United Kingdom and the Republic of Ireland".1279 The arguments were so thoroughly rehearsed in previous debates that I simply want to make two very brief points. First, I see the incorporation of the convention as a confidence building measure, not only in relation to Northern Ireland, as I mentioned, but more generally in relation to our whole political and legal system. It is widely recognised that our society is in many ways floundering, with so little in the way of agreed moral guidelines.
As your Lordships have already pointed out, the United Kingdom was one of the first to ratify the convention and make it possible for individuals to petition. It seems to many of us that the next logical step is to incorporate the convention into law, thereby revealing the clear framework and foundation of human rights on which we have always prided ourselves. Not being a legal positivist, I believe that in the end it is a moral matter and that the rights enshrined in the convention are not there simply because certain states decide that they will be there but because those states recognise certain fundamental moral principles which need to be enshrined in law.
The noble Baroness the Minister has twice indicated concern about disturbing the balance between the judiciary and Parliament. But it is basic to our democracy that the judiciary already has a degree of independence and it is a fundamental and proper concern of the judiciary to safeguard the rights of individuals. In her previous speeches the Minister has indicated that there were very often conflicting claims which needed to be balanced or adjudicated between Parliament and the judiciary.
I should like to suggest that the majority of the rights set out in the convention are absolute and, although they have to be interpreted, it is the proper role of courts to interpret the law. Parliament, of course, is very concerned with human rights; but it is quite properly concerned with the general interest and the common good. The reason that we have rights is to say that there are circumstances in which, whatever the common good, certain fundamentals should not be overridden. It seems to many of us that where there is a conflict it is the function of the judiciary to safeguard those rights. It can be significantly helped in that task by having the clear framework of the European Convention incorporated into United Kingdom law.
I believe that there is a growing body of opinion which desires that. It will be an important confidence-building measure in relation to the peace process in Northern Ireland and will help to make clear the moral foundation of our own legal system.
§ Lord Simon of Glaisdale
My Lords, the amendments at Third Reading were designed to correct some anomalies that had crept into the Bill at Report stage. My noble and learned friend Lord Scarman came to make those corrections and, in addition, has favoured us with a most moving speech. My noble and learned friend has come to the House at great personal sacrifice and must have spoken under considerable personal strain. We are very deeply in his debt.
Those amendments have put the Bill into a reasonable, clear and comprehensible state, in which it can be submitted to the other place. As the noble Lord, Lord Renton, pointed out very clearly—as indeed did the noble Lord, Lord Lester, who has put us in his debt, and my 1280 noble and learned friend—what this Bill does is very simple. There is a European Convention on Human Rights. Our own lawyers took a prominent part in framing it and the noble Baroness no doubt will attach weight to the fact that it was one of the most illustrious of her predecessors, Sir David Maxwell Fyfe, who had a principal hand in framing it. He had already brought great glory to the English law by his conduct of the prosecution at Nuremberg. What he did in that convention was to see embodied in it the principles of British law which had already been expressed in our own Bill of Rights, which was the main source of the American Bill of Rights, the first amendment of the constitution.
We are bound by that convention, we are bound to follow its interpretation. But at present there is the extraordinary situation that anybody who wants to rely on the convention has to go to Strasbourg to obtain adjudication. This Bill says that that adjudication shall be available in the English courts, which are so well conversant with its principles, whether statutory or common law.
It would be most extraordinary if at this stage there were any vote against the Bill. It would be entirely contrary to the conventions of this House. It would be quite disgraceful if Ministers on a Private Member's Bill were now to go into the Lobby against tem. I strongly support the Bill.
§ 7.45 p.m.
§ Lord Browne-Wilkinson
My Lords, I cannot match the eloquence of my noble and learned friend Lord Scarman. I would not seek to do so. However, it seems to me that the legal views on the Bill have so far been expressed by those who no longer, unhappily, adjudicate. My remarks will take less than one minute.
As a serving judge, I am profoundly in favour of the Bill for reasons which have already been deployed. First, it is common ground among all parties—all sides of this House —that all the inhabitants of the United Kingdom enjoy the rights secured by the European Convention on Human Rights. There is no dispute about that. Secondly, everybody is agreed that those rights should be enforceable. Thirdly, there is apparently a difference of view between many people —I am among their number— who say that the rights of Englishmen should be capable of enforcement in an English court and that Englishmen, enjoying those rights, should not be turned away from the English courts, which say that they have no power to act, being forced, five years later and several thousand pounds the poorer, eventually to reach Strasbourg. This Bill repatriates our rights. I believe that it should be allowed to do so.
Finally, perhaps I may again seek, as I have tried at earlier stages, to shoot the canard—I am not sure if one shoots canards—which is the argument that this Bill infringes parliamentary sovereignty. That is, with the utmost respect (as lawyers say), complete rubbish. This Bill enables Parliament to do as it always has done; that is to say, to enact exactly what it likes. Parliament having done so in clear terms, the courts must give effect to what Parliament has enacted. What the Bill will do, if it passes into law, is prevent the position continuing to arise whereby Parliament uses general words and then those 1281 general words are said to authorise administrative acts which infringe the convention. That is the practical application of this Bill. There is no question of Parliament's sovereignty being interfered with in any way.
I believe that I speak on behalf of a very large number of judges, certainly all save one of those who spoke in the earlier stages of this Bill, when I say that the Bill is welcomed by the judges not as empire building but as conferring the basic right to which all Englishmen are entitled; namely, to have their rights determined within this country and not outside it.
§ Lord Renton
My Lords, before the noble and learned Lord sits down, does he agree that just as Parliament ratified the Rome Treaty and the amendments to it, so Parliament was asked to ratify the Convention on Human Rights and did so?
§ Lord Browne-Wilkinson
My Lords, undoubtedly the convention has been ratified; there is no doubt about that. What has not been done is to comply with what I understand to be one of the articles; namely, that those rights be assured by the Government to people within this country. As I understand it, that is the position.
§ Lord Hylton
My Lords, I agree strongly with the right reverend Prelate the Bishop of Oxford. I happen to be a member of the working party to which he referred. He is completely right in saying that at this time the passage of the Bill through Parliament will be a confidence-building measure in the peace process in Northern Ireland.
My second reason for strongly supporting the Bill is that domestic jurisdiction under the convention, and in particular under Articles 4 and 5, will provide real protection in this country for a class of people who are particularly subject to abuse and exploitation. I refer to the domestic workers coming from overseas countries to Great Britain who are tied and bonded to one employer. When this Bill is enacted they will be able to apply for a remedy to British courts. That will greatly enhance and protect their position.
§ Lord Slynn of Hadley
My Lords, what is recognised internationally is that the European Convention on Human Rights is the most successful expression of the United Nations declaration on human rights arrived at as an answer to the horrors of the 1930s and the Second World War. I personally regret that we in the United Kingdom should be the last of the parties to that convention to make it part of domestic law.
I wish to add only two points to what I said at an earlier stage. First, between 1969 and 1976 I appeared on behalf of the United Kingdom in probably all of the cases brought before the Commission and the Court of Human Rights at Strasbourg. I became increasingly convinced that it was regrettable that those cases had to go to Strasbourg and could not be dealt with by our national courts in this country. I felt it was inefficient, expensive, time-wasting and left entirely out of account the ability of judges in this country properly to deal with those claims. It is therefore largely for a pragmatic and practical reason that I feel strongly that we should now give this convention the force of law in this country so that it may be dealt with by our national courts.
1282 Secondly, at that time I was a member of the Bar. Now, as a judge, I do not feel that the kind of issues which are likely to be raised in the national courts will involve judges in grave political disputes and distinctions which may lead to problems. I shall not tease the Minister by referring to one or two other cases, not concerning human rights, which over the years the courts have had to decide and which some people think had a political context. I do not believe that the issues likely to arise under the Convention on Human Rights fall into that category. I am proud to be associated with the noble and learned Lord, Lord Scarman, in supporting this Bill.
§ Lord Beloff
My Lords, perhaps a layman may be excused for introducing a note of dissent into the unanimity which has so far prevailed—not that I think it would be proper for the House to reject this Bill, according to our normal conventions. However, there appears to be a gap, if I may respectfully say so, in the arguments put forward in its support.
The principal argument and one with which I have a great deal of sympathy is that if rights are formulated in an enactment, to which we are bound by our ratification of it, then the proper place for remedies is in our own courts. It is certainly, and has been, somewhat absurd that in order to secure redress, litigants have been obliged to face the delays and expenses of Strasbourg.
I would therefore have been perfectly happy with the Bill if, at the same time, it meant that such recourse would no longer happen; if our courts had the final say in the interpretation of what would be then part of British law. I shall be glad if one of the supporters of the Bill will explain whether or not there is any barrier proposed to people who, failing in a British court, then seek to appeal to Strasbourg. It seems to me that there we have the makings of a possible clash of jurisdictions, the more likely because although, as has been pointed out by the noble and learned Lord, Lord Scarman, and others, there was a good deal of input of the common law into the document, it nevertheless remains the case that western Europe is divided between two forms of law—the civil and the common—and that the court in Strasbourg is bound by virtue of its membership to be heavily weighted against the common law and common law interpretations. Is it therefore envisaged that if the Bill is enacted there will be no further appeal against the decisions of our highest courts?
§ Lord Lester of Herne Hill
My Lords, perhaps I may deal with that straightaway. All 34 contracting states that belong to the European Convention are in the process of ratifying the 11th Protocol. That will give a permanent right of access to the European Court for all the peoples of Europe, whether or not they have incorporated the convention. I am glad to say that the Government of this country ratified that convention earlier in the year.
The answer to the noble Lord, Lord Beloff, therefore is that even if we incorporate the convention, as I hope we shall, there will remain the same right in this country as in the other contracting states, as a last recourse, to go to Strasbourg.
§ Baroness Blatch
My Lords, the noble Lord made reference to the Government being engaged in some kind of dastardly plot this evening. I made it absolutely clear 1283 on behalf of Her Majesty's Government that I would not oppose the Bill at any stage and I find it deeply depressing therefore that he has not come to view me as somebody whose word is her bond. What I wish to say also is that of course I alone speak for the Government in these matters; all other Members in this Chamber, on Private Member's Bills, are free spirits. It would be absurd and inappropriate of me to pre-empt how the Bill may be viewed when it is asked that it be given a Third Reading. I make it absolutely clear that I shall not oppose it.
The guiding principle of the Bill, and of the series of stimulating debates we have enjoyed during its passage through this House, is that the preservation and development of the rights and freedoms of the individual are an essential feature of effective and legitimate constitutional arrangements. The Government wholeheartedly endorse that principle and—I must stress this—take very seriously their human rights obligations under the European Convention on Human Rights and under the other international treaties to which they are party.
What we are discussing here therefore is not ends but means. The Bill now before us would incorporate the convention into the domestic law of the United Kingdom, providing for the principles set out in the convention to serve as an aid to the construction of primary and secondary legislation and to be taken into account in equity and at common law. We have debated at length various different forms of incorporation and, as the Bill now stands, some have suggested that this particular form of incorporation would be helpful in that it would clear up existing confusion over how the courts should approach the convention without impinging upon parliamentary sovereignty.
That is simply not the case. The current position in our courts is clear: under our constitutional arrangements it is for Parliament to enact detailed and specific legislation on matters affecting the rights and liberties of the individual and for the courts to apply that legislation, having regard to the convention only where there is ambiguity. This Bill would certainly change that position. It would enable the courts to interpret legislation by reference to the convention even where there is no such ambiguity and Parliament's intention is clear and specific; and, in the case of the common law, it would apparently allow the courts to overturn long established traditions in common law which would, now, be considered to be the domain of Parliament.
It is a vital merit of our present arrangements that, if and when change of this kind is needed, it is our democratically elected and accountable Parliament which decides how and when any such changes should be made. As well as assuring proper accountability for such decisions, this helps to ensure that such changes, often in areas of keen social and public interest, carry public support and understanding.
The Government's view remains that incorporation of the convention into the domestic law of the United Kingdom would do nothing in practice to improve the enjoyment of the rights of freedoms protected under the European Convention on Human Rights. As the Secretary General of the Council of Europe himself has recently observed, these rights and freedoms are already well protected under the existing arrangements in this country. 1284 The figures speak for themselves. Given the length of time that the right of individual petition has been accepted in this country, and the size of our population, the United Kingdom's record is very much better than that of many countries which have incorporated the convention.
Nor would incorporation guarantee fewer referrals to Strasbourg, as some of your Lordships have argued; nor would it minimise the cost or waste of time or effort, as is shown very clearly when we look at the records of those countries where the convention has been incorporated into their domestic law. What happens in practice 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.
I should remind the House that, in 1994, 62 allegations of violation were referred to the Austrian Government; 723 to the Turkish Government; 118 allegations to the French Government; and 356 allegations to the Italian Government. What did they all have in common? All those countries had already incorporated the European Convention on Human Rights. By contrast, 46 such allegations were referred to the United Kingdom Government during the same period. I cannot see how, from these figures, it can be argued that incorporation is a way of reducing costs or speeding up the handling of cases.
I noticed that the noble Lord, Lord Lester, referred to Germany. He was mightily selective in choosing Germany. He did not choose Italy, France, the Netherlands, Belgium, Sweden, Austria or Switzerland. France, a country with a comparable size of population to the United Kingdom, has almost as many violations as the United Kingdom despite having accepted the individual right of petition only 14 years ago. Italy, which again is of similar size to the United Kingdom, has more than twice as many violations. Of the smaller countries, which arc a quarter of the size of the United Kingdom or less—the Netherlands, Austria, Switzerland, Belgium and Sweden—all have between 20 and 27 violations. That hardly suggests that the United Kingdom has the worst record in Europe.
This hardly seems a basis upon which to make changes to constitutional arrangements which have been tried and tested over many years. No citizen in this country is denied his rights under the European Convention on Human Rights. The Government's view remains that incorporation, whatever form it takes, is undesirable and unnecessary, both in principle and in practice; and accordingly, we cannot give support to the Bill. But although it is the convention that we make known our views about the Bill, I shall not be opposing the Bill.
§ Baroness Trumpington
My Lords, I would very humbly tell your Lordships, speaking from the little red book, that not speaking more than once and not speaking after the Minister applies on Third Reading as it does on Report.
§ Lord Lester of Herne Hill
My Lords, I hope that I am not violating anything in the little red book in saying, first, that I should like to thank all noble Lords who have taken 1285 part in this remarkable debate among a series of very remarkable debates. Secondly, I do not propose, your Lordships will be relieved to hear, to make a speech. I should like simply to say about the league tables, to which the noble Baroness referred, that it is in a way, with respect, pointless to start making these complex international comparisons.
In a reply in Hansard on 18th April the noble Baroness, Lady Chalker, gave information which showed that the United Kingdom had the second largest number of violations of the convention recorded before the European Court, being exceeded only by Italy. Those Italian cases all flow from delay. It also showed that we have the largest number of cases pending before the European Court.
I agree that that does not give a fair picture of the state of human rights in this country. But nor is there much point in comparing our position with that of Turkey on the basis that it has incorporated and we have not and that incorporation therefore does not do the trick. All I would like to say about the league tables—
§ Lord Lester of Herne Hill
My Lords, my recollection is to the contrary. All I would like to say is that the case for incorporation does not depend upon a comparison with other member states. It stands on its own feet. The question is whether there should be effective domestic remedies in this country. The Minister has not suggested that our domestic remedies are as effective.
I very much hope that your Lordships will feel able to pass the Bill through this House so that the democratically elected other place will have the opportunity, if it wishes, of considering its provisions.
§ Baroness Blatch
My Lords, with the leave of the House, the noble Lord is right in terms of the number of allegations referred. In the comparisons which I gave in terms of population and numbers of cases that were regarded as breaches I did not include Turkey.
§ On Question, Bill passed, and sent to the Commons.