Lords Sitting of 18 November 1997

Preamble
The House met at a quarter past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwell.

Lord Bassam of Brighton
John Steven Bassam, Esquire, having been created Baron Bassam of Brighton, of Brighton in the County of East Sussex, for life—Was, in his robes, introduced between the Lord Healey and the Baroness Gould of Potternewton.
Baroness Nicholson of Winterbourne
Emma Harriet Nicholson, wife of Sir Michael Harris Caine, Knight, having been created Baroness Nicholson of Winterbourne, of Winterbourne in the Royal County of Berkshire, for life—Was, in her robes, introduced between the Lord Harris of Greenwich and the Lord Holme of Cheltenham.
Lord Monro of Langholm
The Right Honourable Sir Hector Seymour Peter Monro, Knight, AE, having been created Baron Monro of Langholm, of Westerkirk in Dumfries and Galloway, for life—Was, in his robes, introduced between the Lord Strathclyde and the Lord Sanderson of Bowden.

EU Accession: Minority Protection
2.49 p.m.
Baroness Williams of Crosby Baroness Williams of Crosby asked Her Majesty's Government:
What steps they are taking to ensure that countries seeking accession to the European Union protect minorities, including the Roma minority, from discrimination and racially motivated assaults.
Lord Whitty: My Lords, there are significant problems concerning minority nationalities in a number of eastern and central European countries. There are Roma communities in several of them. Protecting minorities from discrimination is one of the qualifying criteria for EU accession. The British Government support strongly all efforts to address shortcomings in the treatment of minorities in all the applicant countries. We endorse the EC's proposals for accession partnerships with which any problems in those areas can be resolved (as they must be) before accession to the EU. In the meantime our own Know-How Fund is also working hard to promote the protection of minorities throughout central Europe.
Baroness Williams of Crosby: My Lords, I thank the Minister for that helpful reply. Is he aware that the
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most recent reports indicate a sharp rise in racial attacks in the Czech Republic last year—some three times the number of racial attacks in the previous year? Is he aware also that under the Copenhagen Summit the protection of minorities is a condition of membership of the EU? Will he therefore assure the House that the British Government will make strong representations to the Czech Republic to take vigorous action to protect its Roma minority and, among other things, to prevent the outward movement of many Roma into countries that they regard as less likely to persecute them?
Lord Whitty: My Lords, the noble Baroness is right that the protection of minorities and civil rights in general is one of the Copenhagen criteria, and therefore has been relevant to the Commission's opinion on the applications of the Czech Republic, Slovakia and other eastern European countries. There has been considerable evidence—some of it in our own media—of the level of racism against the Roma minorities in those countries. Some of it is public antagonism to the minority rather than institutionalised state racism. Nevertheless, there is clearly an obligation on those states to protect their minorities more effectively than they have done. Some degree of low level police harassment is evident in those countries.
Earl Russell: My Lords, is the Minister aware of this judgment on the Roma by President Meciar in 1993:
"It is necessary to curtail the extended reproduction of [this] socially unadaptable and mentally backward population"?
Can the Minister imagine the effect of joining that attitude to a racial minority with freedom of movement within the EU? Does he agree that the effect of human rights abuses on movement of population is one reason why this Government's commitment to an ethical foreign policy is in our national interest?
Lord Whitty: My Lords, I agree completely with the final point made by the noble Earl. I am not familiar with the quotation to which he referred, but it reflects some of the attitudes of people within Slovakia and other eastern European countries towards their minorities. Such an attitude needs clearly to be eliminated from government and establishment thinking, and judicial and police operations, within those countries before we can conceivably allow them to enter the EU.
Lord Lester of Herne Hill: My Lords, I should declare an interest as a member of the board of the European Roma Rights Centre, whose headquarters are in Budapest. In view of the Minister's recognition that the Roma are a large ethnic group facing severe problems of racial discrimination, prejudice and harassment, will he ensure that accurate information is made available by the Home Office in asylum applications so that the special immigration adjudicators can have recent cogent evidence of the actual situation in the country from which the Roma are seeking asylum in this country?
Lord Whitty: My Lords, I hesitate to stray too far into the area of the Home Office.Clearly the asylum

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applications of those Roma who have arrived in Dover and other places in this country will be dealt with in the normal way, on the basis of as much information as the Home Office and immigration officials can acquire.
The Lord Bishop of Southwell: My Lords, will the Minister indicate what monitoring there will be of the situation in those countries, and, in particular, the Czech and Slovak Republics, to ensure that there is a definite improvement in the protection of minority rights, and, especially, of the Roma people?
Lord Whitty: My Lords, in the approach to EU accession, the situation with regard to minorities and their civic rights will be a central part of the monitoring process to see whether they can meet the EU criteria. The criteria on civil rights and the protection of minorities are absolute criteria. There will be no transitional period. So accession to the EU would require them already to have vastly improved their treatment of minorities before we could conclude an accession treaty.
Lord Mackie of Benshie: My Lords, is the Minister aware that the Council of Europe has set up a monitoring committee to monitor those countries within the Council of Europe which have these problems?
Lord Whitty: My Lords, under the reinforced pre-accession strategy, there is an institutional form of monitoring those aspects set up by the Commission. That will form part of the report to the Council of Ministers at the various stages of the accession talks.
Baroness Williams of Crosby: My Lords, I thank the Minister once again for his helpful reply. Is he aware that, under the present Home Office procedures, most of the Roma who are currently trying to enter the country at Dover and other southern ports are subject to a fast track procedure of five working days? Under that procedure, most are returned almost immediately. Will he be kind enough to draw the attention of his colleagues in the Home Office to a situation where the genuine grounds of persecution sometimes do not have time to be considered seriously?
Lord Whitty: My Lords, I am sure that my colleagues in the Home Office are aware of those concerns. However, when we are faced with an arrival of substantial proportions, the facts have clearly to be established rapidly. That is what the Home Office has attempted to do.

Phone Boxes: Unauthorised Display of Numbers
2.56 p.m.
The Earl of Bradford The Earl of Bradford asked Her Majesty's Government:
What plans they have to deal with unauthorised advertising in London phone boxes.
Lord Haskel: My Lords, the unauthorised activity referred to in the Question mainly concerns
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prostitutes' advertising cards. The Government are concerned about that problem because the increasingly explicit cards deter people from using public call boxes. I can assure noble Lords that appropriate measures are in hand. BT is taking unilateral action to bar incoming calls to BT numbers advertised in BT call boxes. BT and the City of Westminster are taking steps to clean out phone boxes on a regular basis. The Government are also looking at options for using the criminal law to deal with the nuisance.
The Earl of Bradford: My Lords, I thank the Minister for that helpful reply and for making my Question a little clearer. I may have been over-delicate in the way that I phrased it. Does he consider that giving greater powers to Oftel to allow call barring to numbers other than BT numbers would be helpful in this situation? Alternatively, does he accept that the police should be given greater powers to prosecute and that fines should be much heavier than they are at the moment?
Lord Haskel: My Lords, BT sought the support of other telecom operators to bar the calls. However, the scheme was challenged by lawyers acting on behalf of the London Committee of Call Girls. The lawyers argued that the co-operation between BT and the other telecoms operators represented a registrable agreement under the Restrictive Trade Practices Act. However, BT has continued unilaterally with its own ban. Since February it has issued 733 warning letters and barred incoming calls to 104 lines. In addition, 94 customers ceased renting BT lines during the process.
Lord St. John of Fawsley: My Lords, will the Minister turn his mind to an equally important problem related to telephone kiosks; that is, the multiplication of kitsch-designed conflicting kiosks throughout the capital and the country? Is he aware that the Royal Fine Art Commission was responsible for a competition which resulted in the classic Gilbert Scott telephone kiosks? Having cleared up the call girls, will the Government see that a similar competition is organised today?
Lord Haskel: My Lords, I shall certainly bring the noble Lord's comments to the attention of my right honourable friend. However, the concern in the Question about phone boxes is that they should be available for use and that people should not be deterred from using them.
Lord Annan: My Lords, does the Minister agree that prostitution is an evil that will always be with us? One of the most disastrous occurrences in recent years was the decision by the Law Lords to ban the Ladies Directory. That directory was an inoffensive—in one sense—publication which no one was compelled to buy. It was put on display discreetly at newsagents. When it was banned, having been described by the Law Lords as immoral, it was inevitably newsagents who had to be harried by the

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police to remove the cards with which telephone kiosks are now inundated. Does the Minister agree that the matter needs to be re-examined?
Lord Haskel: My Lords, I hesitate to trespass on the territory to which the noble Lord invites me to move. All I can say is that prostitution is not illegal in this country. However, whatever way information is disseminated, it must not cause offence to other people.
Lord Campbell of Alloway: My Lords, can the Minister say what on earth is the use of barring a telephone call when the girl can obtain another application, perhaps using the name Mimi instead of Fifi?
Lord Haskel: My Lords, the girls can use other telephones and other telephone companies. That is one of the results of privatisation of the telephone business. Oftel is looking into the matter. British Telecom is not able to bar calls of other telephone companies; that would he contrary to its licence. Oftel is looking into the problem to see whether it can be dealt with.
Lord Henley: My Lords, can the noble Lord expand on what his right honourable friend the Home Secretary said last week about possibly using the crime and disorder Bill to bring in changes in legislation and possibly increasing the powers of the police? Has further thought been given by his colleagues in the Home Office to amendments which might help alleviate the problem?
Lord Haskel: My Lords, the noble Lord is right in saying that the matter was raised in another place last Friday. Existing legislation allows for prosecution for criminal damage in the case of stickers and for littering in the case of cards. Westminster City Council has used the legislation to prosecute carders. However, my right honourable friend the Home Secretary is considering, as he said during the debate on the policing of London, dealing with the issue. I am sure that the noble Lord has read the remarks of my right honourable friend in Hansard. I am certain he will let us know his decision in a short while.
Lord Palmer: My Lords, following the question from my noble friend Lord Annan, does the Minister agree that the advertisements have a certain advantage, particularly for the millions of visitors who come to London during the year?
Lord Haskel: My Lords, research shows that people who visit London find the advertising less objectionable than the citizens of London. I can only
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repeat that it deters people from using the public facility of call boxes. That is the problem to which the Government must pay attention.

Beer Imports: Illegal Sales
3.4 p.m.
Lord Evans of Parkside Lord Evans of Parkside asked Her Majesty's Government:
What consideration they have given to curbing the amount of beer imported into the United Kingdom for illegal resale.
Lord McIntosh of Haringey: My Lords, this Government take excise smuggling and fraud very seriously. Customs are currently deploying additional officers to frontline work in the Dover area to counter those involved. The Chancellor of the Exchequer has announced a review of alcohol and tobacco fraud involving a working party with the key trade associations to look at the effect of commercial fraud, smuggling and cross-border shopping. The Financial Secretary has set the review team a very challenging deadline of 31st December to present options for addressing those issues.
Lord Evans of Parkside: My Lords, I thank my noble friend for that Answer. Is he aware that over 1 million gallons of beer are imported into Britain from France every single week? A great deal of it is then resold illegally in this country. Is the Minister aware that because of that criminal activity there are substantial job losses in pubs, working men's clubs and breweries and even a number of closures?
Does my noble friend accept that the prime reason for the smuggling is that the duty on a pint of beer in Great Britain is six times greater than in France? If that is the case, can he explain to me how putting another penny duty on a pint of beer will help stem the tide of beer coming into the country?
Lord McIntosh of Haringey: My Lords, my noble friend is very sure of his figures. I am less sure about how much beer is entering this country illegally, mainly because those who do it do not declare it to the statistical authorities.
As to my noble friend's supplementary question about the difference between our duty and that in other European countries, he is quite right. But the cost of reducing our duty to French levels—and I note that the brewers are not suggesting it— would be over £3 billion. That would be equivalent to an extra 1 per cent. on VAT or 2p on income tax. As for the increase in duty in the last Budget, that was simply in line with inflation.
The Earl of Mar and Kellie: My Lords, is the Minister aware that the Brewers Association of Scotland has identified the fact that seven lorries a week are known to be illegally selling beer in Edinburgh? Can the

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Minister tell me how that can be an economic activity, considering that the lorry would have to travel 800 miles in order to complete its task?
Lord McIntosh of Haringey: My Lords, we touched on those issues when we discussed the Question of the noble Lord, Lord Campbell of Croy, on whisky at the end of June this year. I am unsure how anyone can know that seven, six or eight lorries are entering Scotland illegally. If those who have the figures are certain of them, I wish they would inform us. We should be glad to know.

Training and Enterprise Councils
3.8 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
Whether they intend to make any structural or functional changes to training and enterprise councils.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, we greatly value the important work TECs are doing at the local level to raise skill levels and foster enterprise. We recognise the benefit to local partnerships of a strong private sector contribution. There are therefore no plans to make fundamental changes to the structure and functions of TECs. We do, however, see scope for TECs to improve their performance, and a range of work is in hand to raise the performance of all TECs towards the level of the best. For example, I point to the work being done jointly with the TEC National Council to encourage TECs to benchmark themselves against each other and other organisations and to share good practice effectively.
Lord Dormand of Easington: My Lords, I thank my noble friend for that valuable and comprehensive reply. Does she accept that there is a considerable variation throughout the country in the effectiveness of training enterprise councils? I recognise what she just said, but does she agree that much still needs to be done with local accountability and improvement in local partnerships? Does she further agree that an important method of raising standards is to have training inspection of individual providers? That is extremely important. Is anything being done in that respect?
Baroness Blackstone: My Lords, I am grateful to my noble friend for raising these different issues in relation to TECs. It is true that performance varies significantly among TECs across the country. That is why, in partnership with the TEC movement, we are taking forward a range of measures to try to improve performance.
My noble friend asked about ensuring that TECs are more locally accountable. He is right in suggesting that TECs must account effectively to their local communities. The TEC movement is conscious that it needs to do more in that area. This week the TEC
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National Council is launching a revised framework for the local accountability of TECs which responds to recommendations made by the noble and learned Lord, Lord Nolan.
In response to my noble friend's third question, on inspection, we have launched a training and standards council to be responsible for a new external inspection procedure for TECs which will be in operation by next April.
Lord McCarthy: My Lords, will the Minister tell the House whether her reply means that the Government have moved away from the general position adopted by the Labour Party when in Opposition; namely, that they supported in general the report of the all-party Employment Committee in another place on the work of TECs, which suggested a number of not necessarily fundamental, but significant, changes in the structure and functions of TECs? Are we going back on that position?
Baroness Blackstone: My Lords, we are introducing a number of changes of the kind that I just described. At the same time, however, we recognise the valuable work that is done by TECs. There are over 1,000 people round the country who voluntarily give up time to support the work of TECs. They deliver an important part of our employment training. That does not mean that there is not room for improvement in a variety of different respects. I believe that the TEC National Council recognises that it needs to do more to make sure that the performance of less high-performing TECs is raised to that of the very best.
Baroness Young: My Lords, would the noble Baroness be good enough to set out slightly more clearly what exactly are the Government's proposals? I listened with interest to her original Answer, which I welcomed; however, her reply to the noble Lord, Lord McCarthy, seemed to suggest something very different. The track record of TECs has, on the whole, been a good one. Perhaps the Minister might comment on the number of people they have trained who have subsequently found employment.
Baroness Blackstone: My Lords, the Government are well aware of the very large numbers of people who have been trained through TECs and the partnerships that they have with local deliverers of training, including FE colleges, in their own areas. That does not, however, mean that there are not matters that need to be examined. For example, some TECs have very large reserves. The Government believe that it would make sense if better use were made of those reserves. We are encouraging TECs to look afresh at how they might use their resources to make sure that they are focused effectively on the Government's priorities. Just one example is that we expect the TECs to make a significant contribution to kick-starting individual learning accounts. We also believe that in the area of equal opportunities the TECs might improve on their current performance. We need, for example, to improve

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greatly on the numbers of girls who are being trained through TEC schemes through different kinds of employment training.
Lord Rochester: My Lords, because the funding of TECs is largely related to output in terms of job placements and qualifications, does the noble Baroness think there is a danger of training providers taking on too many applicants who are well placed to achieve those outcomes, at the expense of those who are most in need of help?
Baroness Blackstone: My Lords, if one has output measures for organisations such as TECs, it is very important to ensure that they do not distort the operation of the TECs, so that they become more concerned about meeting particular output targets at the expense of quality. Again, the Government are examining the matter with regard to the kind of performance measures that we ought to be using in trying to monitor the ways in which TECs operate.
Lord Wade of Chorlton: My Lords, will the Minister explain what the Government expect to be the relationship between the TECs and the new regional development agencies that are now proposed, and how they will work together to stimulate the economies of the various regions?
Baroness Blackstone: My Lords, the original development agencies will play a very important role in relation to regional economic development. The TECs on the other hand, of which there are 73—far more than there will be regional development agencies—will continue to play a very important role locally in trying to secure and deliver good quality training. Obviously the TECs will need to have a relationship with the regional development agencies. We shall expect them to work together to examine difficult problems such as skill shortages and how they should be addressed.
Lord Mackie of Benshie: My Lords, is the noble Baroness aware that all the questions have been on training? Is she entirely happy that enterprise is not being neglected for training; and do the two really fit together as well as they should?
Baroness Blackstone: My Lords, enterprise and training do fit very closely together. We shall not achieve the kind of enterprise that our nation and our economy need unless we have well trained people. It is through the training not merely of young people but also adults, including training in entrepreneurial skills, that we shall achieve the sort of enterprise that I am sure the noble Lord wants to see.
Lord Dormand of Easington: My Lords, is my noble friend satisfied with the eligibility criteria of TEC board members? Is she aware that, over the seven years during which the TECs have been in existence, there has been quite a lot of criticism about some of the appointments that have been made?
Baroness Blackstone: Yes, my Lords, I am aware that there has been criticism of some appointments to
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TEC boards. Again, it is extremely important that the TEC National Council ensures that people of the highest quality, drawn from a wide range of different backgrounds, serve on TEC boards, so that we can deliver the quality of training that we need.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord McIntosh of Haringey will, with the leave of the House, repeat a Statement that is to be made in another place on the mis-selling of personal pensions.

Human Rights Bill [H.L.]
3.17 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
The Chairman of Committees (Lord Boston of Faversham): The Question is, That the Title be postponed?
Lord Simon of Glaisdale: It is almost always convenient to postpone the Title to fit in with any amendments that are made in Committee, and I do not oppose that on this occasion. However, I have an amendment down to the Title, Amendment No. 116, which may be conveniently discussed with the first two amendments relating to purpose clauses to be moved by the noble Lord, Lord Lester of Herne Hill, and the noble Lord, Lord Mishcon.
The Chairman of Committees: The amendment tabled by the noble and learned Lord will be called in the usual way, in order. However, it is open to any noble Lord to intervene on any debate on any previous amendment and to seek to speak as he chooses.
On Question, Title postponed.
Clause 1 [The Convention and the First Protocol]:
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 1:
Page I, line 6, at beginning insert—
("( ) The main purposes of this Act are to secure in law the Convention rights to everyone within the jurisdiction of the United Kingdom and to provide effective remedies for violation of the Convention rights within that jurisdiction.").
The noble Lord said: It is very important that the courts should be able to have regard to all relevant provisions of the European Convention on Human

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Rights and the First Protocol in performing the tasks put upon them by this Bill. First, I wish to explain what my amendment seeks to do.
Article 1 of the European convention imposes an obligation on the contracting states to secure the convention rights to everyone within the jurisdiction of, in this case, the United Kingdom. Article 13 imposes an obligation to ensure that there are effective domestic remedies for claims of breach of the convention. The Committee will have noticed from the Human Rights Bill as it stands that neither Article 1 nor Article 13 is to be directly incorporated into domestic law.
It is correct not to seek to incorporate Article 1 of the convention in the Bill since that is an interstate obligation to secure the rights guarantees. Amendment No. 1 seeks to include a purposes clause so that courts and tribunals are able to have regard to the main purposes of the Bill when they come to interpret and apply the substantive provisions of the convention. In that way the purposes clause seeks to incorporate into the purposes both the obligation to secure the rights in domestic law and the obligation to secure effective domestic remedies.
The committee of the noble Lord, Lord Renton, on the preparation of legislation—it reported as long ago as 1975—while being sceptical in relation to the value of purposes clauses in most cases, made one important exception. The committee said that, where a Bill seeks to give domestic effect to a Community or international treaty obligation, there should be a purposes clause so that the courts are in no doubt that the purposes of the legislation are to give domestic effect to the treaty obligation. I paraphrase. I shall not weary the Committee with the full paragraph of the report where all that is explained.
Why does it matter in practice? It matters because, if Article 13 is not to be incorporated into our legal system, from time to time the courts will come across problems where they need nevertheless to have regard to the article. Perhaps I may give a controversial example to serve for all. The courts already have regard to Article 13 of the convention when developing the common law or deciding the scope of discretionary powers, including their own powers. For example, in Esther Rantzen's libel case the Court of Appeal had regard to Article 13 of the convention in explaining how in future it would interpret Section 8 of the Courts and Legal Services Act—the provision that gives it the power to intervene and overrule excessive damages awards by juries in libel cases. It made it clear that, looking at Article 13 as well as the free speech guarantee in Article 10 of the convention, it was right in future for the courts, as public authorities bound by Article 13, to exercise their discretion so as to avoid unnecessary jury awards for damages in libel cases.
That is one example. Another was in a case a year ago in the House of Lords—ex parte Khan—where several noble and learned Lords in their speeches referred to Article 13 in the context of the protection of the right to privacy guaranteed by Article 8 of the convention. Other amendments will later seek to incorporate Article 13 directly into our law. But if we
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include a purposes clause, either of the kind that I drafted that includes Article 1 or of the kind drafted by the noble Lord, Lord Mishcon, which incorporates Article 13 as part of a purposes clause, then my difficulty about the Bill as it stands would be met without the need to incorporate Article 13 directly.
Perhaps I may make one or two other points before I sit down. I am troubled, in what is otherwise an admirable Bill, brilliantly drafted and conceived, by the fact that, as drafted, it places some blinkers on the judges in their not being able to have regard to all the relevant provisions of the convention which are not necessarily substantive. One is Article 13. To give two more examples, the convention is equally authentic in English and French and there are rare cases where the judges have to look at both texts. The Bill does not say so. Another example is Article 60, which says that the convention should not be interpreted so as to whittle away existing human rights safeguards. Again, on the Bill as it stands, judges cannot have regard to that.
I do not feel that that problem can be properly dealt with by a Pepper v. Hart statement; in other words, a statement on behalf of the Government as to what the underlying purpose of the Bill is. I plead guilty, as the successful counsel in Pepper v. Hart, to persuading the House of Lords that judges can have regard to parliamentary debates to construe ambiguities in legislation. But I suggest that it is not satisfactory for the citizen to have to read Hansard and a Minister's statement in order to know something as fundamental as the object and purpose of the Bill.
The rule of law depends upon the accessibility of the law on its face in the statute book. That is why it is right that there should be a purposes clause on the lines recommended by the committee of the noble Lord, Lord Renton, so that it is clear that the judges can have regard to the need to provide effective remedies. In saying that, as I made clear at Second Reading, I am not suggesting that the courts should be somehow creative in going beyond the scope of the Bill to fashion some new-fangled remedy not previously thought about. That is not the purpose of the amendment. It is to ensure that, where Article 13 is genuinely in play, the judges and tribunals are able to have proper regard to it. I beg to move.
The Chairman of Committees: It may be helpful to the noble and learned Lord, Lord Simon of Glaisdale, if I were to indicate that his Amendment No. 116 has been grouped with Amendment No. I. It will therefore be entirely appropriate for him, if he chooses to do so, to speak not only to his Amendment No. 3 which is also grouped with Amendment No. 1, but also to his Amendment No. 116.
Lord Mishcon: I am in a minority of Members of the Committee in that I have a simple mind. The reason for my tabling an amendment is that simple mind. I felt it appropriate for this Chamber in Committee to consider matters separately when looking at the desirability of having a main objects clause in a Bill as against a debate which may take place as to whether Article 1 or Article 13 should be included. I felt that the matter

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might be muddled—I say that with the deepest respect—if the amendment of the noble Lord, Lord Lester, was before the Committee without any alternative to it.
My main object is the one that I have just pronounced. I remember the discussion that took place in your Lordships' Chamber on the Children Bill when it was decided that a main objects clause was desirable. I felt it highly desirable that we continue with that practice, as recommended—as the noble Lord, Lord Lester, said—by the committee of the noble Lord, Lord Renton. That is a matter that ought to be before the Committee at this stage, and that is the reason Amendment No. 2 was tabled.
There is one further reason. The wording of the amendment of the noble Lord, Lord Lester—I entirely agree with its main purpose—will confuse. The main part, which I have omitted from my amendment, states:
"The main purposes of this Act are to secure in law the Convention rights to everyone within the jurisdiction of the United Kingdom".
What about the rights that we have exercised to derogate? What about the rights we have exercised to reserve? Does it mean that there will be some argument before the courts that the main object of the Bill is to give to everyone who comes within the jurisdiction all the rights of the convention? There is a contradiction.
1 also do not know—again I say with my simple mind—what the words mean,
"to everyone within the jurisdiction",
to have the benefit of a legal right if it is contained in the convention. Does it mean someone who arrives within the jurisdiction complaining of a right which has been breached outside the jurisdiction? Once he is in the jurisdiction, is it the object of the Bill to give him those rights?
With the deepest respect to the noble Lord, Lord Lester—sometimes those words are not very sincerely said by lawyers but on this occasion they are very sincerely said—I feel that we ought to have before us an amendment which merely deals with the principle of expressing the main purpose. We should not confuse it with other issues.
3.30 p.m.
Lord Renton: The noble Lord, Lord Mishcon, with his usual modesty which is so unjustified, has put a very strong case before the Committee. Before I consider that case in any detail and that of the noble Lord, Lord Lester of Herne Hill, to whom we should be indebted for raising this matter, perhaps I may say that the Committee on the Preparation of Legislation, of which I had the honour to be chairman, which reported 20 years ago, has, in my opinion, in the light of experience since then, shown itself to be too cautious and too narrow with regard to the circumstances in which we recommended purpose clauses. Our legislation would have been better understood and been subject to less litigation if we had made freer use of purpose clauses.
I hope that that general comment is not inappropriate for this discussion because I am sure that all your Lordships will agree that, if we are to have this Bill, we
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want our courts to be able to administer it effectively and to be able to do justice in the way that we would all wish, and not for the rights of those who are bringing cases to the court to be whittled down by technical arguments about the breadth of jurisdiction. Therefore, I say that either the amendment of the noble Lord, Lord Mishcon, or that of the noble Lord, Lord Lester of Herne Hill, and the consequential amendments which the noble Lord, Lord Lester, mentioned, should be accepted by your Lordships.
It is with some hesitation that I venture to express an opinion in favour of one of those amendments over the other. I would prefer to have heard what the noble and learned Lord the Lord Chancellor, or whoever is answering on this matter, has to say first. But perhaps I may say, meanwhile, that I think the noble Lord, Lord Mishcon, made a very good point when he said that we want to ensure that it is the courts within their jurisdiction who need to be guided by us in this matter and that there should not be any argument about whether a person has come within the jurisdiction. Therefore, if I may say so, I prefer the amendment of the noble Lord, Lord Mishcon. But let us keep an open mind about it and see how the debate goes.
Lord Lester of Herne Hill: Before the noble Lord sits down, is he aware that I have no pride of authorship but I did not wish to complicate matters by including Article 1. I shall later explain it, but I would be perfectly content with any of the amendments, whether by way of purpose clause or by way of Amendment No. 6, to which the noble and learned Lord, Lord Ackner, has his name, to incorporate Article 13. The means we can argue about. But is the noble Lord aware that we share the same common objective, which is that the courts should be able to have regard to Article 13 in one form or another?
Lord Simon of Glaisdale: The amendment in my name to the Long Title has been grouped with these amendments, I think quite rightly. That may be an alternative way of indicating to the courts the underlying purpose of the Bill. Some indication of purpose is required if only because at Second Reading my noble and learned friend the Lord Chancellor seemed to cast some doubt as to whether Article 8 relating to privacy was really necessary. He did that, it is true, in the context of a preference for self-regulation by the press. But I think that, in all the circumstances, some indication of purpose is desirable.
The Renton Committee weighed the arguments as to when a purpose clause was desirable and they were rehearsed at Question Time the other day. If one can achieve the same object by amending the Title, it is almost always desirable, first, because it is generally much shorter; and, secondly, because, unless the Long Title indicates a purpose, it serves no useful aim at all. So I ventured to put down an amendment to the Title. At present it reads:
"An Act to give further effect to … the Convention".
I originally put down an amendment to substitute the word "municipal" in place of "further". "Further" really gives no indication to the courts of how much further. However, when the Printed Paper Office saw the word

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"municipal", it connected it with town halls and thought I had gone quite off my rocker, and so spared me the printing of it. I substituted the word "domestic"—to give "domestic effect". I speak subject to correction by my noble and learned friend Lord Wilberforce, who is such an expert in this field. I think "municipal" is the correct term of art but "domestic" may be more easily understood.
If it can be done by the Title it gives sufficient indication to the courts and is very much shorter. Of the two purpose clauses, I presume to agree with the noble Lord, Lord Renton, in preferring the draft of the noble Lord, Lord Mishcon, partly for the reasons that he gave and partly because it is considerably shorter.
Lord Windlesham: On Second Reading I expressed some doubts about the effectiveness of the enforcement procedures, although I supported the purposes of the Bill, and will continue to do so throughout this Committee stage. I made the point then that under the current arrangements—that is before incorporation—and as obscure as they may be, the necessary changes in administrative practice or in primary legislation have invariably followed findings of violation by the European Court of Human Rights. But will that necessarily be so in the future? It would be a paradox if it were not to be, bearing in mind the intention of this Bill.
Article 13 of the convention, which has been referred to already by the noble Lord, Lord Lester of Herne Hill, deals with the provision of remedies. It is not to be incorporated. It was omitted from the annex to the White Paper titled Rights Brought Home. The annex reprinted the text of all the relevant articles save for the first and No. 13. The list simply jumped from Article 12 to 14 in the annex. I say to the Minister at the Home Office, who may have had a hand in the drafting, that it would have made it a great deal clearer to readers had there been some asterisk, dotted line, or other symbol to indicate there was a missing article, and a crucially important one at that, in the annex to the White Paper.
Lord Simon of Glaisdale: I hope that the noble Lord will forgive me. There are amendments to reinstate the reference to Article 13. The noble Lord has just made the speech that I would have made in support of it.
Lord Windlesham: I am delighted to hear it. That is a preview of a speech which will no doubt be coming from such a forceful quarter at a later stage in the debate. Article 13 bears directly on the subject of the first two amendments so let us be clear about what it says. It reads as follows,
"Everyone whose rights and freedoms set forth in this Convention are violated shall have an effective remedy"—
those are key words—
"before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity".
Amendments Nos. 1 and 2 would make a formal statement of intention on the face of the Bill, or indeed in the Long Title under Amendment 116. The same point had occurred to me as it did to the noble and
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learned Lord, Lord Simon of Glaisdale. If the draftsman objects strongly—we await with interest to hear what the reply will be from the Government Front Bench—and if there are powerful arguments against including a statement of intention in the opening clause of the Bill, it may well be that the Long Title is the better place for this. I express no opinion on that.
Although we can readily accept it is the Government's intention to provide effective remedies—how could it be anything else—could it be their intention to provide ineffective remedies? Of course not. So why not have this provision on the face of the Bill? In trying to strike a balance between parliamentary sovereignty and the judicial process, which this Bill attempts in such an ingenious way, there is a real risk that the remedies provided for the victims of wrongful actions by public authorities may—human nature being what it is and politics being what they are—sometimes, however rarely, take second place to political expediency when it comes to bringing what may be highly unpopular changes in the law onto the Floor of the elected representative House of Parliament. I believe that there is a strong case for having this further safeguard against that contingency, to ensure that effective remedies can be attached to the newly enforceable rights.
3.45 p.m.
Lord Ackner: I submit with some degree of confidence that the simplest way to have regard to Article 13 is to incorporate it in the Bill, hence Amendment No. 6, which is that at page 1, line 10, after "Articles", insert "13 and". It is also even shorter than the amendment which the noble and learned Lord, Lord Simon, suggested. I cannot see why we do not go down that route. Instead of talking around Article 13, let us have it in.
It may be that my noble and learned friend the Lord Chancellor will be able to show that technically it is superfluous because it is already catered for. I do not mind if that is the case. Last week we had traumatic examples of how in certain circumstances appearance is so important. The appearance here is odd to a degree. We have a gap between Articles 12 and 14 which is totally unaccounted for. There is a blank, with no indication given to anybody as to why that should be the case.
After all the rhetoric which has preceded the White Paper and the publication of this Bill, surely the public are entitled to a clear, concise and unequivocal statement that effective remedies will be provided. I am sure that it is unworthy to make the comment, but there are some who feel a degree of suspicion which might be referred to as "reasonable suspicion", using the term from the Competition Bill, or even "reasonable grounds for suspicion".
They are these. First, what has been proposed is quite unusual. I understand that the right to an effective remedy under Article 13 is a substantive right under the convention which has been incorporated by every contracting state into their domestic law, including those which have done so by statute. So we are departing from what is normally done. That is some basis for suspicion.

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Secondly, it may be that the Government, despite the rhetoric, have not quite got their heart—if a government have a cardiac region—in the right place in relation to some remedies. The Committee will recall the debate that we recently had on the crippling court fees which made it impossible for some members of society at the bottom end of the income sphere to be able to come to court. Those were fees which, for the first time, took into account judges' salaries, pensions, the notional rent and even. so it was said, the office cat. That is a reference which no doubt prompted the irrelevant but no doubt therapeutic confession made by my noble and learned friend the Lord Chancellor as to his success at the Bar at the expense, apparently, of his clients.
Thirdly, there is legal aid which is to be taken away. Nothing is to be put in its place except contingency fees, the application of which is totally absurd to this litigation which will be uncertain and which will not in many cases ask for damages, but if they are obtained, they are so small that with the cap applied to them they will attract no solicitor.
Finally, there is the reference to Article 8, which appears to provide for the first time a right to privacy. It resulted suddenly in an outburst in the media and, if one looks at the report of our Second Reading debate and at the speech of my noble and learned friend the Lord Chancellor, one finds that a very large part of his speech was devoted to trying to pour oil on ruffled waters. The press were so indignant that a right to privacy might appear that they suggested that Article 8 be omitted. It is no doubt an unworthy thought, but there are people who are unworthy and they take the view that the Government, like all governments, are scared of the media and that they will not do that which they should do in the circumstances. The Government should provide a framework in which the right to privacy should be set out and then applied by the courts; instead of which the matter is to be left somehow to the judges, who will no doubt cope as best as they can, case by case, to build up the jurisprudence on this very important subject.
As I have said, some hold the unworthy thought that the media and, in particular, Rupert Murdoch, scare the Government. The basis for that reasonable suspicion is what happened last Thursday on the first day of the Committee stage of the Competition Bill. In relation to Clause 18 of that Bill, it was proposed to take steps to do something about the predatory trading by Mr. Murdoch under which he maintained, and caused other people to maintain, huge losses by dint of using the enormous profits from BSkyB. Cross-party support existed for that amendment, but as yet that provision has not been pressed to a Division. So, there is some basis for having some anxiety about why that article has been left out.
If there is no reason to fear anything from its inclusion, there is no reason why the Government should not include it. Its appearance would nullify any false inferences, make everybody happy, and involve no expenditure of any kind in the process. I would therefore
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support the simple amendment which also has the virtue of being backed by the noble Lord, Lord Lester. I refer to Amendment No. 6.
Lord Campbell of Alloway: I would be grateful to hear from the noble and learned Lord the Lord Chancellor whether there is any objection to Amendment No. 6. 1 do not want to go into all the business about Mr. Murdoch and BSkyB, but if there is an objection perhaps the noble and learned Lord will let us know. If there is no objection, surely there is no need to consider these purpose clauses because they would serve no valid purpose. If we have to consider them, then for the reasons that have been given, I am quite certain that the drafting of Amendment No. 2 is far more appropriate than that of Amendment No. 1. There is no question in my mind about that.
I wonder whether, if Amendment No. 9 were to be accepted, that would not dispose of any necessity to consider the adequacy of the excuse for not incorporating Article 13 or the need for a purpose clause in the form drafted by the noble Lord, Lord Mishcon. I shall not take up much time and then I shall sit down, but perhaps your Lordships would look at Clause 2 on page 2, which states:
"A court or tribunal determining a question which has arisen under this Act in connection with a Convention right must take into account".
Amendment No. 9, tabled by my noble friend Lord Kingsland, states,
"shall be hound by any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, and must take into account"—
and the clause would then continue.
If those words were to be incorporated on the face of the Bill, they would dispose of the necessity for a purpose clause. In those circumstances—although in other circumstances purpose clauses may be a very good thing, I must confess that I am not a purpose clause man; some people are, but I do not happen to be—I do not have a serious objection to it.
Baroness Carnegy of Lour: It seems to me that this Bill of all Bills should as far as possible be expressed simply so that ordinary people can understand what it does for them. If Article 13 is not to be incorporated and if there is to be a main object clause, it is important that that clause states precisely what the Bill does and is not at all vague about suggesting what it might do. Amendment No. 2, which has been proposed by the noble Lord, Lord Mishcon, seems to me as a lay person to be extremely clear. If the noble Lord, Lord Mishcon, is correct, Amendment No. 1, which has been moved by the noble Lord, Lord Lester, suggests that the Act would secure in law rights to everyone within the jurisdiction of the United Kingdom when in some cases it does so only indirectly by legislation by delegation, for example. If that is the case, it would be a somewhat confusing main object clause and I would very much prefer Amendment No. 2.
Lord Lester of Herne Hill: Before the noble Baroness sits down, is she aware that I have already

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indicated that if anyone deserves a prize for better drafting it is the noble Lord, Lord Mishcon, who deserves the Renton prize? I defer to his amendment as being wiser, narrower and clearer, so I do not intend to press my amendment later, but to support Amendment No. 2 or Amendment No. 6.
4 p.m.
The Lord Chancellor: Amendment No. 2 seeks to insert that,
"The main purpose of this Act is to provide effective remedies for violation of the Convention rights within the jurisdiction of the United Kingdom".
That is a reflection of Article 13 of the convention. Amendment No. 1 would go even further, seeking to insert a main purposes clause, reflecting Articles 1 and 13. Amendment No. 6 would alter the definition of the convention rights by requiring the substantive rights and freedoms of the convention and the first protocol to be read with Article 13 as well as with Articles 16 to 18.
Amendments Nos. 3 and 12 are even more direct. They require the courts to give effect to Article 13 as well as other small convention rights prescribed in the Bill. We are not persuaded thus far by the debate that it is either necessary or desirable to amend the Bill in this way. The Bill gives effect to Article 1 by securing to people in the United Kingdom the rights and freedoms of the convention. It gives effect to Article 13 by establishing a scheme under which convention rights can be raised before our domestic courts. To that end, remedies are provided in Clause 8. If the concern is to ensure that the Bill provides an exhaustive code of remedies for those whose convention rights have been violated, we believe that Clause 8 already achieves that and that nothing further is needed.
We have set out in the Bill a scheme to provide remedies for violation of convention rights and we do not believe that it is necessary to add to it. We also believe that it is undesirable to provide for Articles 1 and 13 in the Bill in this way. The courts would be bound to ask themselves what was intended beyond the existing scheme of remedies set out in the Bill. It might lead them to fashion remedies other than the Clause 8 remedies, which we regard as sufficient and clear. We believe that Clause 8 provides effective remedies before our courts. It is noteworthy that those who have supported these amendments have not suggested any respect in which Clause 8 is deficient.
When one comes to Article 13, it provides that:
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority—
that is exactly what Clause 8 provides—
"notwithstanding that the violation has been committed by persons acting in an official capacity".
The very ample definition of public authority in Clause 6 makes it plain that there is no intention to protect persons acting in an official capacity. On the contrary, our definition of public authority in that clause could not be wider. The noble and learned Lord, Lord Ackner, may nourish suspicions, but I assure him that there is nothing to be suspicious about.
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At Second Reading I informed your Lordships that if Parliament chose to establish a committee on human rights the Government would welcome it. I said that one of the functions of that body might be to keep the protection of human rights under review. If for any reason which escapes me—none has been pointed to—it appeared to that committee in the light of the operation of this Bill that the remedial provisions of Clause 8 should be strengthened in some way, the Government would give serious consideration to that. But we would expect that committee to set out clearly the effect that its proposed amendments was designed to have. That is what we have sought to do in the Bill. It is noteworthy by its absence that the arguments put before the Committee by those who propose these amendments fail to state any respect in which Clause 8 is deficient.
Lord Lester of Herne Hill: I am most grateful to the noble and learned Lord for giving way. Before he continues his helpful explanatory speech perhaps he can clarify one matter. Is it the intention of the Government that the courts should not be entitled to have regard to Article 13 and the case law of the Strasbourg Court on that article in cases where it would otherwise be relevant? I give an example. In recent cases brought against Turkey, where there has been torture without adequate police investigations, the European Court has said that regard must be had to Article 13 rather than Article 6 because it is the former that requires an effective post mortem. Is it the intention of the Government that in cases where the European Court has said that the right provision is Article 13 and not Article 6 our courts should wear blinkers and are not allowed to look at Article 13 or the Court's case law? I am not clear from the speech of the noble and learned Lord so far whether that is the intention. If so, how can it possibly comply with our convention obligations?
The Lord Chancellor: One always has in mind Pepper v. Hart when one is asked questions of that kind. I shall reply as candidly as I may. Clause 2(1) provides:
"A court or tribunal determining a question which has arisen under this Act in connection with a Convention right must take into account any … judgment, decision, declaration or advisory opinion of the European Court of Human Rights".
That means what it says. The court must take into account such material.
I shall deal now with the question of whether the court may have regard to Article 13.
Lord Campbell of Alloway: Before the noble and learned Lord sits down, perhaps I may be allowed to deal with this point. I specifically asked the noble and learned Lord what was the Government's objection to this. One has a schedule containing the articles of the convention but Article 13 is left out. Why? What is the objection to leaving it in? I have listened with great care. If I have missed the point I apologise for this intervention but at the moment I do not understand. Perhaps the noble and learned Lord will make the position clear so that even I can understand it.
The Lord Chancellor: I shall make it clear but only after I have completed my answer to the noble Lord,

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Lord Lester. I had answered one half of the noble Lord's question but not the second half when the noble Lord, Lord Campbell of Alloway, intervened.
My response to the second part of the question posed by the noble Lord, Lord Lester, is that the courts may have regard to Article 13. In particular, they may wish to do so when considering the very ample provisions of Clause 8(1). I remind your Lordships of the terms of that provision:
"In relation to any Act (or proposed Act) of a public authority which the court finds is (or would he) unlawful, it may grant such relief or remedy, or make such order, within its jurisdiction as it considers just and appropriate".
Knowing the remedial amplitude of the law of the United Kingdom, I cannot see any scope for the argument that English or Scots law is incapable within domestic adjectival law of providing effective remedies.
My answer to the noble Lord, Lord Campbell of Alloway, is that to incorporate expressly Article 13 may lead to the courts fashioning remedies about which we know nothing other than the Clause 8 remedies which we regard as sufficient and clear. Until we are told in some specific respect how Clause 8 is or may reasonably be anticipated to be deficient we maintain our present position.
Lord Campbell of Alloway: What are these other nebulous, hypothetical remedies? Can the noble and learned Lord let us into his confidence and explain what is in the back of his mind on this, if anything?
Lord Renton: Before the noble and learned Lord replies, can he explain to the Committee why Clause 8(1) confines the matter to what is done by a public authority, bearing in mind that there is no definition of "public authority" in the Bill?
The Lord Chancellor: "Acts of public authorities" in respect of which our courts may grant remedies if they deny convention rights and therefore act unlawfully are amply defined in Clause 6 of the Bill. The Bill is aimed at public authorities and unlawful acts by public authorities acting contrary to convention rights. That is not in the back of my mind; it is in the front of my mind. Clause 8(1) refers to remedies in respect of acts of public authorities because that is what the Bill is about. I do not think that it would be profitable for me to take up the time of the Committee in spelling out every remedy or relief available in English law, which is one of the most sophisticated and developed systems of law in the world.
I turn to Amendment No. 116.
Lord Ackner: Before my noble and learned friend leaves Clause 8(1), will he have any objection—it may be that this needs further consideration—to adding at the end of Clause 8(1) the simple words: "to give full and effective protection to convention rights"?
The Lord Chancellor: If the noble and learned Lord puts down an amendment to that effect on Report, we shall consider it. However, my immediate reaction is that that would be to accept a superfluity. Clause 8(1)
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provides effective remedies. It is noteworthy that no one contributing to this debate suggested any situation or set of circumstances in which Clause 8(1) would not give the courts effective remedies. I have to say to the noble and learned Lord that he nourishes suspicions but, so far as I am aware, without any substance. We shall consider everything that has been said in the debate. If the noble and learned Lord desires to put down an amendment to that effect on Report, then of course we shall consider it in advance of Report stage. As at present advised, I believe that it is completely unnecessary until some specific situation is called to the Committee's attention where Clause 8(1) does not amply provide what is required.
The noble and learned Lord, Lord Simon of Glaisdale, has been very patient in waiting for me to turn to his amendment, Amendment No. 116. This would amend the Bill's Long Title so as to state that the Bill was to give "domestic" effect to rights and freedoms guaranteed under the convention, not that it was to give "further" effect. I believe that the Long Title to the Bill is admirably clear to a layman and to lawyers. The reason the Long Title uses the word "further" is that our courts already apply the convention in many different circumstances. For example—and the courts are well familiar with these examples—where a statute is capable of two interpretations, one consistent and one inconsistent with the convention, the courts will presume that Parliament intended to legislate in accordance with the convention. If the common law is uncertain, unclear or incomplete, the courts will rule wherever possible in a manner which conforms with the convention. That is English law today.
Lord Simon of Glaisdale: I am much obliged to my noble and learned friend for allowing me to intervene. Has not the Government's case to us been that the Bill is to give domestic effect to the convention rights? If that is so, why not say so?
The Lord Chancellor: Our law already gives domestic effect to the convention in two respects which I have listed. I shall list more in a moment if the noble and learned Lord will permit me. It is therefore accurate as a matter of the use of English language to say that this Bill gives further effect.
The domestic courts are already able to apply the convention in certain circumstances. Where a domestic statute is enacted to fulfil a convention obligation the courts will ordinarily assume that the statute was intended to be effective to that end. Where the courts have a statutory discretion to exercise they seek to act in a way that does not violate the convention. When the courts are called upon to decide what, in a given situation, public policy demands, they have regard to the United Kingdom's international obligations as a source of guidance. Where the proceedings concern directly effective European Union law, the courts will take the convention into account because that law includes human rights principles, including those guaranteed by the convention.

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Every lawyer knows this. No one can conceivably think that we intend to enact anything other than an Act to give further effect within the United Kingdom to a convention which already has effect in our domestic law.
Between now and Report we shall reflect on everything that has been said by Members of the Committee in support of this group of amendments. I understand the arguments. I have listened to them with care and will read them in Hansard with equal care. I note the modesty of the noble Lord, Lord Lester, in yielding the field to the noble Lord, Lord Mishcon, and his willingness to support the noble Lord's amendment. However, that said, at present we are not persuaded that any advantage is to be gained from any of these amendments.
4.15 p.m.
Lord Kingsland: The vast majority of the rights that are guaranteed by the European convention are already guaranteed by our own common law rules or by statute. Those common law rules or statutory rules are backed in our courts by an array of enforceable remedies. Let us suppose that a judge is presented with a situation whereby the substance of the common law or statute rule complies with the convention but the remedy available does not comply with the remedy that a citizen would gain under Article 13 if that citizen went to the court. What happens next? Under Clause 8(1) a court can grant any order within its jurisdiction. Is the noble and learned Lord saying that since Article 13 is automatically incorporated, although not on the face of the Bill, that judge is entitled to give effect to a remedy which is sanctioned by Article 13? Alternatively, is he saying that the judge is not so entitled? If the judge is not so entitled, is the judge then entitled to make a declaration of incompatibility with respect to remedies rather than the substance of the law and to ask for a fast-track solution from Parliament?
The Lord Chancellor: I find the noble Lord's late intervention in the debate somewhat difficult to follow. At present, I cannot conceive of any state of affairs in which an English court, having held an Act to be unlawful because of its infringement of a convention right, would under Clause 8(1), be disabled from giving an effective remedy. I believe that the English law is rich in remedies and I cannot conceive of a case in which English law under Clause 8(1) would be unable to provide an effective remedy.
However, during the earlier course of the debate I did not say that Article 13 was incorporated. The debate is about the fact that it is not incorporated. In reply to the noble Lord, Lord Lester, I said that in my view the English courts, in the examples which he offered, would be able to have regard to Article 13.
Earl Russell: I am the first layman to intervene in the debate and therefore I am a little astonished at my temerity. I am reminded of a 17th century heretic who said—and I hope that the Committee will forgive me
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for repeating his doctrine—that the Church of England should revert to having the scripture in Latin, for in Latin as it did no good so it did no harm.
The argument is entirely about whether since it makes no difference it should not be incorporated, or whether since it makes no difference there is no objection to its incorporation. The noble and learned Lords, Lord Simon of Glaisdale, and the Lord Chancellor have put those two points with crystal clarity.
Between those two it is simply a temperamental argument of priority. I must confess that on those terms I prefer erring on the side of safety. But there is a further point to be made. The noble and learned Lord the Lord Chancellor said fairly that he cannot foresee any possible circumstances in which there would not be an effective remedy. I grant that this is an extremely well drafted Bill; indeed, it is possibly the best drafted Bill that I have seen before the House in nine years. But nothing is perfect. Acts of Parliament have woodwork and things come out of it often as much as two or three centuries after their drafting. If we cannot now foresee any specific respect in which the drafting of the Act is defective, that does not mean that there is no such defect, merely that among us in our collective wisdom we do not happen to have spotted it. That happens from time to time.
I wish to conclude with a remark once made in this Chamber by the noble Lord, Lord Rix, speaking on an amendment tabled by the noble Lord, Lord Campbell of Alloway, relating to a code of practice on disabilities. The noble Lord said, "I am not a lawyer, but this is a matter of belt and braces and that is something of which I do have some professional knowledge".
Lord Lester of Herne Hill: This will be a fascinating debate for lawyers to read in Hansard. I am not sure whether it will fascinate non-lawyers. Perhaps I may summarise the position that we seem to have reached because I doubt whether we are far apart.
The noble and learned Lord the Lord Chancellor agrees that under the Bill the courts are fully entitled to have regard to Article 13, even though it is not to be incorporated. He also agrees that the courts are obliged to have regard to the Strasbourg case-law on Article 13 to the extent that it is relevant. The issue which remains is whether, taking Amendment No. 6 as the best example, it is sensible for Clause 1(1) to allow the judges to look at Articles 16, 17 and 18 in construing the substantive articles of the convention, but not to look at Article 13.
I can think of several practical examples where in real cases it will help the courts to know that they can have regard to Article 13, even if it is not directly incorporated. Perhaps I may give two examples. First, the Turkish cases in which there is no proper post-mortem or police investigation into a suspicious murder. I am not suggesting that in practice such circumstances are likely to arise in this country, but in those cases the Strasbourg court stated that Article 6, which is to be incorporated into UK law, is not the right article. It stated that Article 13 is the right article and it is the one to which domestic courts should have regard.

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Perhaps I may take an example closer to home, which is the case of Chahal. The noble Lord, Lord Williams of Mostyn, will be particularly familiar with the case because Parliament had to enact special legislation on immigration appeals to give effect to the European Court's judgment in Chahal. The vice was a breach of Article 13. That breach arose because there was no proper judicial procedure where a suspected terrorist was facing deportation to a country where he would face torture or inhuman or degrading treatment or punishment. Therefore, we had to spend time enacting a new Bill.
If there were no clear inconsistency in the primary legislation and the courts could have regard to Article 13 when construing their remedial powers under Clause 8 of the Bill that would greatly assist them in fashioning the effective remedy. There is nothing between the noble and learned Lord the Lord Chancellor and myself about the aim. We are concerned only about making the Bill clear on its face so that legal scholars, publishers, banisters, solicitors and, in the end, judges are not troubled by having to read this debate in order to arrive at the simple conclusion that it was the intention of Parliament that the courts would have regard to Article 13 of the convention.
I shall beg leave to withdraw Amendment No. 1. Since we are speaking to the grouped amendments, I shall also beg leave to withdraw Amendment No. 6. However, having carefully considered the arguments put forward I believe that it would be sensible if Amendment No. 6 found favour with the Government as a way of solving a practical problem. I beg leave to withdraw Amendment No. 1.
Amendment, by leave, withdrawn.
House resumed.

Personal Pensions: Mis-selling
4.30 p.m.
Lord McIntosh of Haringey: My Lords, with the leave of the House, I should like to repeat a Statement made in another place by my right honourable friend the Economic Secretary. The Statement is as follows:
"With permission, Madam Speaker, I would like to make a further Statement on the mis-selling of personal pensions.
"On 9th July I reported to the House on the progress being made by individual firms with most cases to put right in what is possibly the most extensive scandal ever seen in our financial services industry. Each month subsequently I have published the latest facts available to me. Today I have placed in the Library further information about the progress being made.
"We are now seeing positive results from the pressure applied since this Government were elected. In May only 2 per cent. of cases had been compensated. Now there has been a sevenfold increase in the number of people receiving
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compensation—proof that in the cold glare of publicity firms can raise their game and make progress. However, more could and should be done.
"Before I go into more detail, it might assist the House if I recall the events which led to this scandal. The Social Security Act of 1986—a much-vaunted piece of legislation by the previous government—encouraged millions of people to change sound pension arrangements for something different in the belief that they would be more secure in later life. Some will be. Not all, however. For some, the change meant a future less secure, not more so.
"Between 1988 and 1994, life insurance companies, independent financial advisers, banks and building societies, through vigorous marketing, sold over 5 million personal pensions. It soon became clear that this meant disaster for many, including hundreds of thousands in nursing, teaching and other professions who had been persuaded against their best interests to abandon the safety of their occupational schemes.
"The truth is that many firms did not abide by the regulatory rules then in force requiring them to give suitable advice. Among those firms failing their customers were many household names.
"The Securities and Investments Board in 1994 took the unprecedented step of requiring firms to review the cases of those most likely to have suffered. The scale of the problem can now been seen: some 600,000 cases are currently being reviewed and on current indications the cost of compensation will be at least £2 billion.
"Deadlines were set for completing the most urgent reviews. These were well missed. The previous government stood by and let this happen.
"On 14th May this year I met heads of 24 firms responsible for about three-quarters of the total of the cases; I left them in no doubt about our determination to ensure those wasted years would be redeemed.
"Most of the big firms are making headway; indeed, some of them have made large strides. But far too many firms—from large insurance companies to small independent advisers—have been far too slow to act. Some have hardly started. They have failed to grasp the severity of the situation.
"The experience of the past few months shows that pressure—from the Government, the regulators and the public—is working. I intend to maintain it until the review is completed. In May the regulators set hard but realistic new targets for all the firms concerned and made it clear that there would be robust disciplinary action.
"For most firms the first of these targets is to complete 90 per cent. of the most urgent cases by the end of next month. Beyond that, they must complete all their priority reviews by the end of next year—at the very latest. When they reach that target, I shall remove their names from the list which I publish each month, although they must continue to update me on their progress.

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"The recent reprimands and fines against firms such as the Prudential, Friends Provident and DBS have attracted wide publicity. This disciplinary rigour will continue. But the Government and the regulators recognise that in respect of some companies at least these sanctions may not be enough; they are not galvanising the laggards. For them, a stronger armoury of sanctions is required. The Personal Investment Authority is working to achieve this through individual registration, and the new regime will come into force as soon as possible next year.
"Once this regime is in place, sanctions can be fine-tuned to apply pressure directly on those responsible. Individual directors, managers or salespeople found to be at fault will face the prospect of fines, public reprimands or restrictions upon the type of work in which they may be involved. In extreme cases, they could be expelled from the industry.
"The public has a right to know about these failures. At present, the PIA has the power to require firms to advertise their misconduct and the grounds on which they have been disciplined. Until now, this power has been kept in reserve. There is now every reason to use it to the full. The PIA is currently examining ways to ensure that customers are informed directly of a firm's failings.
"The Government believe the time has come for a tougher range of sanctions to come into place. The only way for a firm or an individual to avoid disciplinary action is to avoid the conduct which warrants it.
"While putting right the wrongs of pensions mis-selling has been the priority, the Government have not lost sight of the fact that the financial services industry is central to our economic prosperity and to the welfare of millions of people. However, its prosperity requires the confidence of the public. That is why the industry must act quickly to restore that confidence. If there is continuing evidence that some firms will not learn the lesson of the past few years and continue to harm investors, then we will act to clean up the industry. To this end, the PIA has the authority to intervene on behalf of the public and require that a firm ceases to market or sell some or all of its investment products for a period and puts its house in order.
"Firms whose compliance with the regulators' requirements is so poor that investors are put at risk can effectively be put out of business. The PIA will use this power wherever warranted. Candidates for this action will include any independent financial adviser or any other firm found to be using the review process as a foot in the door to sell more products.
"The regulators and the Government also have powers to protect the public by taking action to exclude senior people who are not fit and proper from involvement in financial services business. Those who are not fit and proper can be removed from their posts. We will see to it that they are removed.
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"In the years ahead the Government plan a number of major pieces of legislation which will have a profound impact on the financial services environment. Lessons learned from the pensions mis-selling episode will be in all our minds as we go about that task—in relation to stakeholder pensions, in relation to individual savings accounts and indeed as we reform the regulatory regime itself.
"So far as pensions policy is concerned, we will not repeat the mistakes of the previous government. We will not set people up for a fleecing. We anticipate that future decisions on the regulatory approval of stakeholder pension schemes would take into account the conduct and corporate governance of those involved. This would include, of course, their record in settling cases of mis-sold personal pensions.
"I hope that by the combination of measures which I have outlined to the House today we can ensure that never again will the public be exposed to such a scandal as that which I have described today and that those who have suffered can now look to speedy redress. Justice for them has been too long delayed; this Government are determined to ensure it is delivered."
My Lords, that concludes the Statement.
4.38 p.m.
Lord Mackay of Ardbrecknish: My Lords, I thank the noble Lord for repeating the Statement made by the Economic Secretary in another place. May I start by saying that there is nothing between us on the need for the pensions industry to right the wrongs of the pensions mis-selling. Indeed, the Economic Secretary's predecessor, Mrs. Angela Knight, made it clear to the industry that it had to put these matters to rights. However, I wonder whether the noble Lord would accept that pensions matters inevitably take a little time to be put right.
I remind the noble Lord of the time it took my noble friend Lord Cuckney to put matters right regarding the Maxwell pension fund. And that was not just mis-selling: it was pure robbery. Putting that right took a considerable time and a great deal of effort on the part of my noble friend and his colleagues. Equally, as a Minister of State in the Department of Social Security it took myself, my colleagues, our officials and indeed Members of your Lordships' House many hours—indeed months—to bring in the Pensions Act and the protection for pensioners we all judged necessary as a result of the Maxwell scandal. So the Economic Secretary to the Treasury ought to think about these examples when discussing the time it takes to put pension matters right. Nobody knows more about Robert Maxwell than she, as a one-time adviser to him, does. I would suggest that perhaps she might remember the old adage that people who live in glass houses should not throw stones.
I note in the Statement that something like 600,000 out of 5 million pensions sold are under question. The Minister seems to dissent. But that is what the Statement says: that 600,000 cases were to be investigated. Not all of them may result in a decision that they were mis-sold.

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But we understand that the cost is likely to be £2 billion. That is something that the pensions industry should attend to as quickly as it possibly can; and that, as the Minister said, includes some household names, including some household names which the Government have decided to look to in order to help them with issues such as the Welfare to Work scheme. I hope that the companies whose top people are giving help to the Government on other matters will not find themselves sheltered from the strictures of the Economic Secretary.
The Minister pointed out that for most firms the first of these targets set by the Economic Secretary earlier in the year is to complete 90 per cent. of the most urgent cases by the end of next month; that is, by the end of December. Do I take it that we shall have another Statement in January to report progress on meeting that target of 90 per cent. completed by the end of December? It seems to me that we should have been better to wait until that important target date had passed before we had today's Statement. That leads me to believe that something of a diversionary tactic is being undertaken here to take our minds away from the scandal of Formula One and tobacco sponsorship.
I return to the 600,000 mentioned in the Statement. How many are likely to opt back into SERPS? Have the Government any estimate of that? How much is that likely to cost SERPS in the longer term? Still on the question of SERPS, how many are likely to opt back in from perfectly good schemes which have been damaged severely by the Chancellor's pension tax? When thinking about the £2 billion that we are discussing in relation to pensions mis-selling, is it not remarkable that the Chancellor's pension tax will take £5 billion every year from pension funds up and down the country, including, for example, county council pension funds which must find £3.7 million per year from council taxpayers in order to undo the damage done by the Chancellor's pension tax? Perhaps I may even tempt the Minister to name and shame the Chancellor for his pension hit.
I notice that, the Statement having been very strong, the Government realised, by doing a little bit of simple arithmetic, that on their calculation £4.4 billion of the pensions were not mis-sold. There are many people who, if it had not been for the 1986 Act, would not have any provision at all. Indeed, as far as I understand it, the Government intend to build on private pension provision in various ways in order to encourage even more people to take out pension provision.
Therefore, I conclude by saying that I agree with the Government in their Statement that the financial services industry is central to our economic prosperity and to the welfare of millions of our people. I suggest to the Government that perhaps a little moderation in their tone sometimes might be called for if they wish to encourage that industry and encourage the people who are currently without pensions and who will need the assistance of the financial services industry in the future if they are to have the pensions that they need and deserve.
Lord Ezra: My Lords, I too thank the noble Lord for repeating the Statement on the pensions mis-selling
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problem. I make it quite clear that on this side of the House, we fully support the prompt action which the Government are taking. We hope that it will yield positive results.
There is a reference in the Statement to priority and the most urgent of the 600,000 cases. What do those represent and what will happen to the remaining cases? The Government are apparently going to take firms off the list once they have dealt with the priority and urgent cases. But will those firms be examined in relation to their dealings as regards the remaining cases?
Dealing with this particular problem is only one part of the issue, as the noble Lord repeated in the Statement. It is essential that no further scandal of this sort should occur in the future. The Government have indicated that they intend to take major measures to deal with that, which we shall no doubt debate in due course. But is the noble Lord aware that at present, there is vigorous selling of what are described as draw-down schemes which are phased retirement plans offered to those who are likely to retire in the near future? Is he aware that it has been stated that those draw-down schemes are more risky than annuities and are not for people who need maximum income from their pension funds?
It seems to me that this whole area of pensions selling raises many questions and that while one issue is being dealt with, the skill and innovative experience of those selling the pensions means that another scheme is devised which may theoretically be perfectly proper but nevertheless can lead people into making the wrong decisions. How is that ever-changing approach to pensions to be dealt with so that those who are investing in those schemes can he assured that they receive the right advice and are not misled by over-enthusiastic salesmen?
Lord McIntosh of Haringey: My Lords, I am grateful to both noble Lords for recognising the need for prompt and effective action to deal with the scandal of pensions mis-selling. I believe that the noble Lord, Lord Ezra, goes further than the noble Lord, Lord Mackay of Ardbrecknish, meant to go or, indeed, did go in welcoming such prompt action. The noble Lord, Lord Mackay, was more concerned to defend the record of the previous government than he was to analyse the options open to us to improve the situation in relation to mis-selling.
Of course the noble Lord is right that the Economic Secretary's predecessor, Angela Knight, recognised the need for action. But as the Statement makes clear, since only 2 per cent. of cases had been compensated by 14th May, which was soon after we took office, it cannot be said that the action taken was exceptionally effective.
The noble Lord is quite right to say also that pensions matters take time. But the test of that and the test of whether effective action is indeed being taken is to be seen in the difference between those firms which have taken effective action and have clearly been dealing with the problem and those which have certainly not taken effective action and still find themselves at the tail end, being named month after month by the Economic Secretary to the Treasury in the lists which she places

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in the Libraries of both Houses. The noble Lord wishes to revert to the fraud and theft carried out by Maxwell and he is fully entitled to do so. But he must recognise that the scale of what we are describing now is perhaps 20 times greater than that for which Robert Maxwell was responsible.
The noble Lord, Lord Mackay, referred to the figure of 600,000 in the Statement. As the Statement makes clear, that figure is the number of cases currently being investigated. There are more cases coming forward—probably up to 1.5 million cases in the end—which are of lower priority where the threat to people's pensions is less urgently seen because the time scale is further away but he is certainly not entitled to draw the conclusion that 4,400,000 pension schemes were properly sold.
The noble Lord raised the question of whether there will be another Statement in January. There will certainly be another monthly statement of defaulting firms in January. Whether there is a Statement to the House is a matter which has not yet been decided. The noble Lord questioned the need for this Statement. When we are making progress towards the additional sanctions in particular as regards individual registration and sanctions against individual managers and directors, it is only right that Parliament and the pensions industry should know about that at the earliest possible opportunity.
The noble Lord will have observed also that there was the statement on 28th October last at which the Financial Services Authority was introduced. He will know that at that time, before and subsequently, our determination to reform the structure of financial regulation has been made very clear. That is extremely relevant to the other issue which was raised; namely, whether there will be comparable failings in the pensions industry in the future.
The noble Lord asked me how many will opt back into SERPS. I do not know, and I do not think that those whose cases are being investigated know that at the present time. Of course the noble Lord is right that if a significant number opt back, that will affect the cost of SERPS, but it may do so in "netting out" against stakeholder pensions or against other pension provision which it is the intention of the Government to introduce in the coming years.
The noble Lord made his usual reference to advanced corporation tax. I expected that; indeed I would have been disappointed had he not done so. It is noticeable that the good schemes which are taking effective action to deal with mis-selling of pensions have shown no signs of being deterred from taking that action by the decisions which the Chancellor took in the Budget. It is the anomaly between the good schemes and the bad schemes which shows the degree of mis-selling.
The noble Lord, Lord Ezra, referred to the 600,000 cases. I can confirm that as they are the ones currently being investigated they are the most urgent cases. The noble Lord asked me whether we can be sure that there will be no further scandal. We cannot be sure of that but we are taking action through the establishment of the
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Financial Services Authority, through the Bank of England Bill which will transfer financial regulatory powers from the Bank of England to the FSA, and through subsequent legislation to ensure that we have a more effective and more powerful regulatory authority in the financial services industry. I am grateful to the noble Lord for what he said about sales skills in the pensions industry and the drawdown schemes which are starting to emerge. Of course the regulators will have to be vigilant to ensure that sales of this kind are properly assessed, and to ensure that there is no comparable mis-selling.
There is a specific argument for drawdown schemes. I do not think it is fair to say that they are always inappropriate. They can be taken up by those who retire when annuity rates are low. They can be appropriate. but like all complicated schemes people who are considering taking advantage of them should take independent advice before committing themselves. However, as regards the Government, it is the continued forceful pressure on mis-selling of pensions and the continued pressure for an improved regulatory regime which is at the core of our response to this scandal.
4.55 p.m.
Lord Dean of Harptree: My Lords, while I recognise that tough measures are amply justified in dealing with this blot on what is otherwise an industry with a good record, will the noble Lord assure us that the Government recognise the vital importance of encouraging all forms of legitimate saving for retirement, and that there will be no further Budget raids on the resources of occupational pension schemes?
Lord McIntosh of Haringey: My Lords. I have no difficulty in confirming the importance which the Government attach to all forms of saving for pensions, whether public or private. However, I shall not commit myself to future Budget provisions.
Lord Taylor of Gryfe: My Lords, first I declare an interest as a former director of an insurance company. I fully support what is being done by the Government. I am not so sure that I fully support the threatening, aggressive language of the Statement. This is a complex issue. We are talking about examining hundreds of thousands of policies to make sure that they come within the categories that have been cleared. I support the scheme completely. I was a director of Friends Provident. Friends Provident was formed by Quakers in order to give people a fair deal. Friends Provident is jealous of its reputation but it came under the hammer and was fined substantially under the provisions which are legitimately imposed. Is there an adequate appeal procedure against the substantial sums that are being lodged against insurance companies bearing in mind the complications of giving fair treatment and obtaining acceptance and co-operation from the industry rather than simply threatening it with deadlines?
Lord McIntosh of Haringey: My Lords, I have no natural tendency to aggressive language. In ideal circumstances I would agree with my noble friend that

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aggressive and threatening language is not appropriate. However, I must say that a certain amount of aggressive and threatening language from Government Ministers appears to have been necessary and appears to have had some effect. In those circumstances I suggest that the remedy is justified and that our natural tendency—which is universal in this House—to be gentle not just with each other but also with the outside world, perhaps could be put on one side.
My noble friend also asked me about Friends Provident and whether there is any appeal procedure against the fines imposed by the Personal Investment Authority. As my noble friend recognises, Friends Provident was fined £450,000 and it has not appealed against that fine. Of course in their regulatory activities the regulators are working within the civil law—they are working within the context of contract law—and if any pension company thought that there was severe injustice in the fines being imposed, there is no doubt that company would have a remedy because there has to be due process of law. However, it is significant that not only has Friends Provident not appealed but none of those firms which have been fined has appealed.
The Earl of Onslow: My Lords, I hope that the noble Lord can help me a little. If there is a bigger take up of SERPS, has he any figures to show what the unfunded pension liability would be in the year 2010 and beyond because that has a great bearing on what happens to European monetary union? The German pension, as we all know, is totally unfunded—and the liability is enormous beyond the year 2010—as is the French and the Italian pension. Up until now we in this country have had a nice balanced funded and unfunded pension liability. That is my first question.
My second question is: In the early '80s we made it illegal to have fixed commission rates for salesmen. Would it not be better to go back to a fixed tariff of pension salesmen's commissions so that there would be no necessary advantage in selling one form of pension over another because the commission to the salesman or to the broker would therefore be higher for pension A rather than pension B?
Lord McIntosh of Haringey: My Lords, the noble Earl raises two important and interesting questions to which I should love to respond at length. As regards his first question on SERPS, I suspect that is a little remote from the mis-selling of personal pensions. I suspect that whatever the actuarial calculation might be, it ought to be seen in the context of the whole range of pension provision which I think the noble Earl recognises as being necessary if we are going to secure not just our old age but that of our descendants in the next century. In order to get the total picture what we fund through SERPS has to be set against what we do not fund through, for example, non-contributory pension schemes in the public sector. I am sorry but I have forgotten the noble Earl's second question.
The Earl of Onslow: My Lords, fixed commissions for pension selling.
Lord McIntosh of Haringey: My Lords, I suspect that that is a counsel of perfection. I suspect that had it been possible to have fixed commissions, someone would have found a way of doing it. The difficulty with commissions relates not just to the total amount of commission but the proportion of the commission which is charged against the proposal in the first year of its life.
Lord Stewartby: My Lords, does the noble Lord accept that one of the problems which has caused much of the delay, even in the case of those firms which have made a serious effort to put things right, has been that a high degree of precision has been required in reaching terms for settlement? Although a high degree of precision is, in itself, desirable, it is a factor which has led to the dragging out of a number of cases further than we would have hoped. Having said that, does the noble Lord accept that the companies in this market place which have made the best progress have been those where the importance and urgency of the need to put things right has been recognised at the highest level—at the level of the chairman, the chief executive, the board of directors and senior management? Will he tell us whether it is his view, and that of his honourable friend, that the top levels of those firms which have been rather more laggardly in the process have now got the message that it is a matter to which they have to give high priority within their own businesses?
Lord McIntosh of Haringey: My Lords, those, too, are interesting questions. I rather agree with the noble Lord that those firms which have been successful in dealing with the problem of the mis-selling of pensions have been successful because they recognise the problem at a high level. If the problem had been recognised at a high level when the pensions were being mis-sold in the first place, we might not have the same kind of problem that we now have. It is the PIA's move towards individual registration which will penalise those senior managers in the laggardly firms who have not been taken the action necessary to deal with the problem promptly. It is for that reason that individual registration and penalties are necessary.
The noble Lord's first question related to over-precision in dealing with these cases. I am not sure that that is the case. A considerable number of cases are now being resolved by the firms conceding compliance and causation, and accepting that they have a responsibility to restore the situation without going into too much detail in the individual case. Again, I rather think that as clearer patterns of mis-selling emerge, the need for greater precision will diminish.

Human Rights Bill [H.L.]
5.3 p.m.
House again in Committee on Clause 1.
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 2:
Page I, line 6, at beginning insert—
("( ) The main purpose of this Act is to provide effective remedies for violation of the Convention rights within the jurisdiction of the United Kingdom.").
The noble Lord said: I think the Committee will agree that usually the procedure of groupings not only makes good sense, it makes for tidiness of debate. This is one occasion when it does not achieve that object. I suppose that what I should have done is to make my point to those responsible people—they are indeed responsible and do much for this place—who suggested the groupings. The first I ever heard of the groupings was when I entered the Chamber earlier this afternoon.
I say that because the question of whether or not the Bill should have a main purpose clause is entirely separate from the many issues which have been learnedly discussed this afternoon. I know that my noble and learned friend, in his kindness and courtesy, said that he would be considering the whole debate. I would ask him to regard the question of main purpose as a separate issue. I am much indebted to the noble Lord, Lord Lester, for his kindness in that he said that he might support an amendment along the lines of the one I have tabled. In those circumstances, I shall not move the amendment.
[Amendment No. 2 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 3:
Page 1, line 8, leave out ("12 and").
The noble and learned Lord said: The amendment concerns a matter that was much discussed on an earlier amendment; namely, the incorporation into the Bill of Article 13. The amendment seeks to do that. The Bill reads:
"'the Convention rights' means the rights and fundamental freedoms set out in—
(a) Articles 2 to 12 and 14".
The amendment seeks to leave out "12 and" so that the paragraph will read, "Articles 2 to 14". The matter has been fully discussed, and the overwhelming view in the Committee was that Article 13 should be incorporated and set out in the schedule. I shall not repeat the arguments that have so cogently been put forward. Half of them were put forward by Members of the Committee who support the Bill as I do. The only voice on the other side was, I am afraid, that of my noble and learned friend the Lord Chancellor. He promised to consider the whole of the matter.
I do not propose to press this amendment or any others in my name to a Division today. Some little time ago, I came to the conclusion that I was not justified in intruding further on the Committee's deliberations. If I have weakened on this occasion I can only pray in forgiveness that I have been waiting for a very long time for this Bill—ever since its precursor was moved by the late Lord Wade. I hope that the Committee will extend indulgence. I hope that I will not trespass too far on that indulgence.
The arguments have been overwhelming from various parts of the Chamber. I do not propose to repeat what was said. Amendment No. 6 seeks in another way to do the same as I seek to do in this amendment. My amendment is shorter. It seeks to omit two words from
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the Bill. Even in a very well drafted measure such as this, a small mercy of two legislative words is not to be despised. I beg to move.
The Lord Chancellor: I have already spoken to this amendment.
Lord Simon of Glaisdale: So have I. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Russell Earl Russell moved Amendment No. 4:
Page 1, line 9, at end insert ("and
( ) Articles I to 4 of the Fourth Protocol,").
The noble Earl said: Before turning to my own amendments, perhaps I may make one remark in which I hope—
Lord Lester of Herne Hill: I am grateful to my noble friend for giving way. We have not yet dealt with Amendment No. 6, and I believe it is my fault.
Lord Henley: I think the noble Lord will find that discussion on Amendment No. 4 comes before that on Amendments Nos. 5 and 6.
Lord Lester of Herne Hill: In the groupings list Amendment No. 6 follows Amendments Nos. 1, 2 and 3.
Lord Henley: The groupings are purely informal and are designed to assist the Committee. We have discussed all the amendments within that grouping. It is open to the noble Lord, or any other noble Lord, to return to that amendment when we arrive at the amendment in its proper numerical place.
Earl Russell: I am sorry to have missed the chance to speak in the hearing of the noble and learned Lord, Lord Simon of Glaisdale. I wished to say, I hope on behalf of the whole Committee, that we are delighted that he has again taken part in our proceedings and we look forward to his doing so on many more occasions.
In moving Amendment No. 4, I should also like to speak to Amendment No. 113, which is consequential upon it. Also, with the leave of the Committee—I ask leave since this is a change in the rules—I should also like to speak to Amendment No. 115, which covers related matter. Since I should in effect be making the same speech, it seems a good idea that the Committee should not have to hear it twice.
The purpose of this amendment is to bring within the scope of the Bill and incorporate the Fourth Protocol to the European Convention. Since the convention was drawn up in 1950 quite a lot of legal water has flowed under the bridge, and quite a lot of political water also. So it has been found necessary by the parties to the convention to produce a certain number of revisions and additions which are incorporated in the protocol. That meets the point made in the past by the noble and

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learned Lord, Lord Donaldson of Lymington, about the amendment of the convention. It has been done, and I am glad that it has.
This protocol was signed by the United Kingdom, but it has not yet been ratified. However, I see no inherent impossibility about the United Kingdom ratifying the Fourth Protocol should it see fit to do so.
As to what is included in the Fourth Protocol, the Committee will find it convenient to turn to Amendment No. 113, the amendment to the schedule in which the bulk of the protocol is set out. It is a series of rights which are well within the traditions and spirit of English common law.
The first point is that it puts an end to imprisonment for debt. Here I must say a special word in memory of my late noble friend Lord McGregor of Durris, who died last week. He will be very much missed by your Lordships' House. I have heard my noble friend say in this Chamber that one of his life-long ambitions was to achieve a final end to imprisonment for debt. It is in the spirit of a memorial to him that I ask whether the Committee might consider taking this felicitous occasion to do that.
The second article of the Fourth Protocol relates to freedom of movement within one's own territory and freedom to enter and leave one's own country. The second is directly in line with Clause 41 of Magna Carta:
"All the King's subjects shall have free entry to and egress from the realm, save in time of war'.
It may be suggested that the provision is obsolete. In fact it was upheld only about 10 years ago in the United States Supreme Court by way of asserting that the State Department had no right to refuse a passport to a US subject who wished to leave the country. So it is a live tradition. The freedom of movement within the territory repeats a provision of the Petition of Rights 1628. That, again, is well within the spirit of English law as we know it at present. Incidentally, it provoked Chief Justice Coke—and the Committee will guess which county he came from—to say that sending a Norfolk man to Cumberland was a penalty no less severe than imprisonment! It prohibits the expulsion of people from their own country.
Anyone who was present in the Chamber for the first Question this afternoon should appreciate the importance of that provision. The Question dealt with Romany subjects in the Czech republic of Slovakia. People being expelled from their own territory is a cause of world instability. That should be fairly clearly prohibited is a good thing.
The most important provision is Article 4 of the Fourth Protocol, which states that:
"Collective expulsion of aliens is prohibited".
That means that any decision to expel an alien must be taken individually as the result of a hearing. Here we come to some areas of problem in asylum law. The 1951 convention on refugees was, as we know, drafted some time ago. Those who drafted that convention did not envisage persecution as coming from anyone other than one's own government. They lived in a world of sovereign nation states which they believed had secure
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control within their own territories. We know that that is not always so. Therefore a very large number of cases of claims for asylum now are ones that come, not under the UN convention, but under Article 3 of the European Convention which is being incorporated by this Bill, dealing with torture, inhuman or degrading treatment or cruel or unusual punishment. This is the matter that I always think of as the Algerian amendment—because in that country, sadly, the forces of the state are unable to provide sufficient protection against the actions of opposition, dissidents, guerrillas and others. In the light of yesterday's news, I very much hope that I shall not have to think of this also as the Egyptian amendment.
In these cases there is a claim for asylum that arises under the convention. But the 1993 Act covers only those that arise under the UN convention, not the European convention. Cases under the European convention are very often given exceptional leave to remain, as distinct from refugee status. But there is a very large area of discretion. Where the government do not do that, there is no appeal in the British courts; but of course there is an appeal under the European court procedure at Strasbourg.
My noble friend Lord Lester of Herne Hill referred to the case Chahal, a case in which that power was exercised. So what I hope to hear on Amendment No. 115 is that, with this Bill on the statute book. people who invoke Article 3 of the European convention, asking for asylum, will find that the adjudicators are in power to apply the European convention, and not merely the 1993 Act.
This is a question about the relationship between Clause 6(1) of the Bill and Clause 6(2). It is a matter of some anxiety among professionals in the field and, as I read the text of the Bill, a matter of some uncertainty. If the noble Lord, Lord Williams of Mostyn, were able to set my mind to rest on the point, I should be extremely happy. I beg to move.
Lord Archer of Sandwell: One of the advantages of following the noble Earl, Lord Russell, is that the case for the amendment has been fully and effectively deployed and any embellishment by me would be superfluous. I do not propose to trouble the Committee further with the amendment, except to make one comment which I believe underlies all the amendments in this group. I am very conscious that the Bill is concerned with procedures. It relates to the procedures by which a citizen shall be empowered to avail himself or herself of the rights which exist independently of the Bill. I was unable to be present for the Second Reading debate, but had I been, it would have been the principal burden of my contribution. I believe that the Government have wisely directed the Bill to the rights, already set out in the convention, which command a wide consensus, and have refrained from seeking to change or widen those rights.
I am very aware that in formulating rights as human rights there is a danger of foreclosing legitimate debate and that we should be careful to apply that process to rights where the debate is substantially concluded. But, as the noble Earl said a few moments ago, formulations of human rights are not set in stone. If they become

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static and atrophied they lose their cutting edge. The world changes and the Committee may recollect that the convention is now 50 years old. So from time to time it has been necessary to add protocols to the convention to ensure that the convention rights shall be consistent with a changing world and with the changing cultures of the people to whom they apply. The Government have wisely recognised that by incorporating in the Bill Articles 1 to 3 of the First Protocol.
Which protocols then ought to be included in the Bill? What is the criterion for incorporation? I hope that when my noble friend Lord Williams replies to the debate he will give us some idea of the Government's thinking on the criterion for that. But if I may hesitantly suggest an answer, I believe that it would be appropriate to include a right if it embodies a standard which commands a broad consensus. Of course, that does not mean that there shall not be found any individual or even bodies of individuals who may think differently. That would reduce the Bill to an unnecessary statement of the obvious. Nor can it mean that there may not be found those who, while they pay lip service to the rights, do not in fact observe them.
I find it hard to believe that there is any serious controversy about the principles in the rights embodied in the Fourth Protocol. So far as I am aware, it is not suggested that there is any substantial body of opinion opposed to them. The Government, in the White Paper, give a quite different reason for excluding them. They say that some of our present laws may be inconsistent with them. The Government say that they are important rights and "We, the Government, would like to see them given formal recognition in our law". If then some of our laws are inconsistent with them, is it not to our domestic laws that we should be directing our criticisms?
My reading of the White Paper is that it may be that what is really in the Government's mind is a reference to laws which may be in conflict in relation to different categories of British nationals. The noble Earl did not direct his mind to this, but I wonder whether the problem relates to the British Nationality Act 1981 which certainly denies right of entry to specific categories of British nationals. If that is so, I venture to suggest three answers.
First, I know of no potential large influx of British nationals, even if we were to change the existing legislation. The most obvious relates to Hong Kong, but those who are Dependent Territories citizens, British nationals, and who are at present denied the right of abode, probably number about 180,000. Of those, the large majority are likely to wish to remain in Hong Kong. Of the remainder, the majority have a number of options open to them.
The second answer is that the United Kingdom could enter a derogation or reservation in relation to the territorial place of origin of certain categories of British nationals if it thought that there was a good reason for excluding them. Personally, I hope that that would not be the option which appeals to the Government.
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The third answer is that in any event the rights of those with whom we are concerned in the Fourth Protocol are not determined by the Bill. It may be that it is in Strasbourg, either in the debates of the governments concerned or in certain circumstances in the court itself, that their rights may be determined. I should have thought it better that they should be determined here in the courts in Britain.
I turn now to Amendment No. 5. I am grateful to a large group of non-governmental organisations who have participated in discussions on this, particularly to Amnesty International and Justice. Like the Fourth Protocol, the Sixth Protocol has been signed by the United Kingdom but not ratified. In suggesting that it satisfies the criterion which I ventured to suggest a few moments ago, I do not seek to provoke a debate on the merits of the death penalty. If that belongs anywhere, it certainly does not belong in the parliamentary process of this Bill. On the contrary. I venture to suggest that the protocol satisfies the criterion precisely because those debates are things of the past.
A consensus cannot mean that there is no room for dissent by a single individual or group of individuals. That could be said of probably every right set out in the convention. The Government's reason for omitting the protocol from the Bill as set out in the White Paper, is that the issue is a matter of judgment and conscience to be decided by Members of Parliament as they see fit. I should have thought that that was true of all the rights in the convention. The application and priority of the right to freedom of expression may he a matter about which one can hear more than one opinion. The right in the First Protocol to educate one's children in conformity with one's own religious and political convictions is not free from controversy.
If there were a Division in either House of Parliament on those matters, I can well believe that it would be said to be a matter of judgment and conscience. But these are matters on which the essential debates have been substantially concluded. That is why they can properly be enshrined as human rights. The question which now arises is: is that true of the right enshrined in the Sixth Protocol? If the issue were a live one, I would not seek to suggest that further debate should be foreclosed. But for any issue there comes a time when it is burned out and when it belongs to history.
The Sixth Protocol raises two issues: whether the death penalty should be re-introduced for murder and whether it should be abolished for those offences in respect of which it remains on the statute book. The death penalty for murder was abolished in 1965, following a free vote in Parliament. There have been subsequently a number of parliamentary debates as to whether it should be re-introduced, but Parliament has never decided to re-introduce it. The last occasion which I have been able to trace was on 21st February 1994, during the Committee stage in another place of the Criminal Justice and Public Order Bill. The proposal was defeated by 403 votes to 159. So far as I am aware, it has never been resurrected.
The offences for which the death penalty still remains on the statute book include treason, piracy and some offences by members of the Armed Forces against

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military law. It has not been used for treason since 1946 and I cannot believe that realistically there is any prospect that it will be. The last recorded execution for piracy was in 1830. The retention of the death penalty for offences against military law was last discussed in your Lordships' Chamber on the Motion of the Army, Air Force and Naval Discipline (Continuation) Order of 19th July 1993, when my noble friend Lord Williams of Elvel pointed out that if an IRA sniper shot and killed a member of the Armed Forces he would not suffer the death penalty, but if in order to avoid that outcome the soldier ran away he would be liable for execution. I doubt whether anyone would be found to defend that situation.
It may be that no one is likely to need recourse to this legislation to avoid suffering the death penalty. But there are countries where the issue is still a live one and some of them are countries where trials are not always conducted as we would hope. To include the Sixth Protocol may send an important signal.
The proposed text of the final declaration for the Council of Europe's summit calls for the universal abolition of the death penalty. When my noble and learned friend replies, I hope that he can tell us whether the Government support that text. If so, it would help substantially in creating a climate in which less enlightened states comply with that declaration if the United Kingdom announced that it regarded the issue as substantially closed and embodied it in the Bill. The United Kingdom Government have a commendable record in supporting calls for the abolition globally of the death penalty. It does not add to our credibility if it can be replied that we still have it on our statute book.
5.30 p.m.
Baroness Williams of Crosby: I wish to address myself briefly to Amendments Nos. 4 and 5 and do so from a rather different viewpoint from that of the noble and learned Lord, Lord Archer of Sandwell, or my noble friend Lord Russell.
In looking at the White Paper's response to this set of proposals, we are looking at what may be a major missed opportunity for the Government. The Foreign Secretary, in another place, raised the hopes of many people when he said that he regarded human rights as the central pillar of the foreign policy of this Government. It attracted attention from all over the world.
As my noble friend said and as the noble and learned Lord, Lord Archer, said, virtually everything that is embodied in the Fourth Protocol is already recognised in British law or in British practice. We understand that the Government have committed themselves to repealing the continuation of execution orders in the case of Northern Ireland, which was one of the difficulties that arose with regard to Article 2. Article 1 has already been discussed and it is now generally agreed that imprisonment for debt is not something that should happen in a civilised country. Incidentally, it would save a certain amount of public expenditure if it ceased in this country, as it surely should. Article 2 is qualified by Article 3, which allows the right of free
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movement of peoples to be fundamentally limited in certain situations where organised crime, trade in drugs and other matters are concerned.
The Government are passing up a major opportunity in this matter—I hope they will reconsider the position they take in the White Paper—because at the present time we are in a position to give a major lead to other countries within the European Union and specifically to those countries which are currently applying for membership of the European Union. As a country we have insisted that those who join the Council of Europe and who propose to join the European Union should sign and ratify the protocol that we are discussing in this Chamber this evening. It is strange that a government which should be giving a lead in matters of democracy, human rights and civil liberties should not be willing to sign the protocol they ask others to sign—countries far less able to do so and with far less experience in that field than the United Kingdom.
We have this opportunity now. I see no great objection to it. Both Article 2(1) and Article 4, which concerns the expulsion of aliens, are of critical importance in establishing a democratic culture in central and eastern Europe. Anybody who has seen the horror of Bosnia surely cannot disagree with that proposition. It would therefore be right and apposite, in view of the Government's commitment to human rights and their foreign policy, if the noble and learned Lord the Lord Chancellor were to see fit to undertake in this Bill to complement that stand by saying that the United Kingdom is willing to sign Protocol 4 and, on that position, to advocate powerfully that it should be signed by all those countries which wish to become part of European democracies within our region of the world.
Lord Browne-Wilkinson: I was not able to be present at Second Reading and perhaps I may now express my warm welcome for the Bill as a whole. However, I must go on to express a certain unhappiness, having been involved in the field of human rights for some time. It has its delights, not least the ability of every supporter of human rights to wish to get everything, including the kitchen sink, into every step that is considered a step forward for the protection of human rights.
This Bill is designed to repatriate to this country those rights which we currently have to go to Strasbourg to enforce. To introduce matters such as the final abolition of the death penalty and rights of movement—all of which are matters of contention by which we are not bound at the moment and which are not part of the international law of which we are a part—is simply to complicate the situation and put off the day, possibly fatally, in which those matters that are sensible are brought into English law.
When looking at the list of amendments, I ask that we consider what we are trying to do with this Bill. If it is to make enforceable in English law known rights under the covenant which are currently in force in Strasbourg, let us do that. Let us not try to protect for the time being every human right that anyone can think of.

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More practically and directly, it is said that the matters set out in the Fourth Protocol are already matters to which English law conforms. I am in no position to give that competent advice which others apparently are. I have seen no discussion on the subject in any detail in academic journals, let alone in the courts. I doubt whether English law is such that imprisonment for inability to pay debt is no longer part of it. What are we seeking to achieve? Is it a limited, valid goal? Or are we seeking to put the whole world to rights? I ask that we concentrate on the essentials and not the periphery.
Lord Lester of Herne Hill: I intended to give unequivocal support to the previous speeches in relation to the Fourth and Sixth protocols. But, having heard the speech of the noble and learned Lord, Lord Browne-Wilkinson, I now need to modify what I would have said in the light of what the noble and learned Lord rightly pointed out as to the immediate purpose of the Bill.
Two separate questions arise. One is: what is to be in the Bill? The other is whether we should ratify and then incorporate the Fourth and Sixth protocols. The Government indicated—I welcome this greatly—that they intend to ratify Protocol 7 which closes the gap between the European convention and the International Covenant on Civil and Political Rights. One of those guarantees which will no doubt then be incorporated under the Bill when it becomes law is one dealing with procedural safeguards relating to the expulsion of aliens, which I greatly welcome. When the noble and learned Lord, Lord Browne-Wilkinson, reminds us of our limited objective, we need to take into account that there will be further rights included which are contained in Protocol 7.
In relation to the Sixth Protocol, I entirely agree with the noble and learned Lord. Lord Archer of Sandwell, and my noble friend Lady Williams of Crosby as to the desirability of ratifying that protocol, for the reasons that they gave. However, I also agree with the noble and learned Lord, Lord Browne-Wilkinson, that that is not before us at the moment in anything like the same degree of importance as are the obligations to which we are already party.
There is an extremely powerful case for ratification of the Fourth Protocol, as has already been explained. Perhaps I may add two or three points. I sought to persuade the Callaghan Government, in particular the noble Lord, Lord Owen, when he was Foreign Secretary, unsuccessfully of the need to ratify the Fourth Protocol. I tried to persuade the Thatcher Government, in particular Sir Leon Brittan, the then Home Secretary, to ratify. The problem is—I understand the problem—that our immigration and nationality legislation is said by some to be discriminatory. For that reason we entered broad reservations when we ratified the International Covenant on Civil and Political Rights.
Speaking for myself—I should be grateful if the Minister could deal with this point in his reply—I see no reason why, since we are already bound by the International Covenant on Civil and Political Rights and
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since the White Paper rightly points out that the provisions of the Fourth Protocol largely reflect what is in the international covenant, we could not ratify the Fourth Protocol with the wide reservations that have already been made with regard to the international covenant. I agree with those who have said that the contents of the Fourth Protocol largely mirror what is already in our law. I notice that the Government have said that the rights in the Fourth Protocol are important and that they would like to see them given formal recognition in our law. I therefore very much hope that the Government will feel able to enter the necessary reservations to enable them to ratify the Fourth Protocol.
My last point is this—I realise that it goes in a way to the wider questions for the Foreign and Commonwealth Office as well as the Home Office. I very much hope that, in the Government's review of these wider questions which is now under way, they will show a willingness to accept the optional protocol to the International Covenant on Civil and Political Rights so as to give jurisdiction to the UN human rights committee. That would go a long way to solving the problem about the Fourth Protocol. Since the international covenant mirrors what is in the Fourth Protocol, it would at least mean that people could have recourse to the UN human rights committee, as is true of every other European state except the micro-states. For example, Ireland recently accepted the optional protocol. Going beyond Europe, Australia and New Zealand have done so. Indeed, all of the European states which have done so have entered appropriate reservations to make sure that there is no double jeopardy for governments under the covenant and the convention. I very much hope that that may happen because that seems to be the bare minimum needed if we are to show our commitment on the international plane with regard to these rights.
To sum up, I agree with aims of the movers of the amendment. I very much hope that sympathetic consideration will be given to ratification of the two protocols and to acceptance of the optional protocol to the international covenant in order to reduce the mismatch. I was once involved in an East-African Asian's case where this really mattered. The effect of the Commonwealth Immigrants Act 1968 was to exclude from this country British citizens on racial grounds. We had to go to Strasbourg. The fact that we had not ratified the Fourth Protocol gave us serious problems. In the end the commission had to stretch the meaning of Article 3 of the convention and deal with the problem in that way. It gave some protection. I should like to see much greater protection on the basis of citizenship, which is, after all, fundamental to this country. We surely, as citizens, should have the same civil and political rights as our fellow citizens elsewhere in Europe. The Fourth Protocol is one of the missing ingredients which would place us in the same position as our fellow citizens in other European countries.
Lord Campbell of Alloway: Although I am not attracted to this amendment as at present advised, perhaps I may ask the same sort of question of the noble and learned Lord the Lord Chancellor. What was the

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Government's reason for excluding Articles 1 to 4 of the Fourth Protocol? I should like to understand why things have been included and why things have not been included. But I would not be in favour of this amendment as at present advised.
5.45 p.m.
Viscount Colville of Culross: I did not take part in the Second Reading of the Bill because I was still at the most recent session of the United Nations human rights committee, of which I am a member. If that is an interest, then I declare it. I was interested in what the noble Lord, Lord Lester, said about this.
I want to say a few words on the Fourth Protocol from an aspect which is different from any that has previously been mentioned. I recognise, of course, Article 1 from Article 11 of the international covenant, but more particularly I recognise Articles 2 and 3 as they partly are reflected in Articles 12 and 13 of the international covenant. The noble Lord, Lord Lester, said that they are reflected. In fact the provisions are substantially different in the two different documents. That is one of the reasons why I wish to raise this briefly in your Lordships' Committee.
The noble Earl, Lord Russell, mentioned the question of refugees. The human rights committee deals with periodical first reports from countries. Very often there is an aspiration on the part of those who seek to persuade the committee to ask governments questions of one sort and another to embark on a lengthy consideration of their treatment of refugees. The same points can arise when one is dealing with communications under the first optional protocol, to which the noble Lord, Lord Lester, has just referred. Again, people seem to think that the provisions of the covenant are sufficiently comprehensive to deal with a number of problems faced by refugees. They are not.
There is a very limited application. There is a provision in the international covenant which is not really reflected in the European one unless it is a stretching of Article 3, which was just mentioned, which refers to the conditions in which refugees are detained while a decision is made about their further movements. There are some provisions in Article 12, about their freedom of movement during the period while such decisions are being taken, which are capable of being raised under the international covenant and, therefore, I should have thought, also under the Fourth Protocol. But what happens is that people's expectations are unduly raised, because they think that the effect of these provisions is really to incorporate what the noble Earl, Lord Russell, has put down as Amendment No. 115, which is the refugee conventions. It does not do so.
If there are other reasons why the Government have decided not to incorporate the provisions of the Fourth Protocol, such as the noble and learned Lord, Lord Archer, mentioned, I would simply add this as another one. It is by no means comprehensive. If the noble and learned Lord, Lord Browne-Wilkinson, is telling us to stick to the things that are certain, I can tell the Committee that from the international point of view
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this is not a certain area at all. It is one where a good deal of thought ought to be given before we embark on incorporation into British law of these provisions.
Lord Lester of Herne Hill: Does the noble Viscount agree with me that the human rights committee has repeatedly and recently urged the United Kingdom Government to incorporate the substantive provisions of the covenant into UK law and to accept the optional protocol?
Viscount Colville of Culross: The first optional protocol. That happened at a session which was the one immediately before I joined it. That had nothing to do with the decision because I would not have been allowed to take part in it in any event. The noble Lord is quite right. The first optional protocol would still raise false expectations if it were ratified because citizens might go to the committee in the expectation which I have just mentioned. They would find themselves sadly disappointed because there is a very limited area in which the human rights committee can help them.
Earl Russell: Perhaps I may make one small point of clarification. I am very grateful to the noble Viscount for a great deal of what he said. I would like to clarify the purpose of my Amendment No. 115. It is not to incorporate the UN refugee convention any further than applied in 1993. It is to allow adjudicators and others also to take account of the European Convention on Human Rights, which is why it is relevant to this Bill.
Viscount Colville of Culross: I was simply using the noble Earl's amendment as a reference point as to what it is people tend to think is covered by Articles 12 and 13 of the international covenant and the provisions in the Fourth Protocol. I was not suggesting that the noble Earl was doing anything else.
Baroness Carnegy of Lour: I wish to ask the noble and learned Lord, Lord Archer of Sandwell, a question. When the people of Scotland voted in the referendum on Scottish devolution they were given to understand that one of the possibilities for them, if the White Paper was followed, was the reinstitution of the death penalty in Scotland, although it was not to be reinstituted anywhere else in the United Kingdom. I am not one of those who would have followed that line, but that was a definite understanding. Is it the noble and learned Lord's intention to block off that possibility through this amendment?
Lord Archer of Sandwell: Let me make it clear that it certainly was not my intention to intervene in a family quarrel in Scotland. I would not wish to pre-empt the result of any debate which the people of Scotland might wish to have. The matter of course can be dealt with in this Bill without in any way precluding the amendments which the noble Earl and I have moved.
Viscount Bledisloe: The noble and learned Lord's comment demonstrates the soundness of the point made by my noble and learned friend

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Lord Browne-Wilkinson. The amendment of the noble and learned Lord, Lord Archer, seeks to incorporate a ban on the death penalty into the definition of the convention. We would then have a situation where, as far as possible, primary legislation has to be read to accord with that abolition. The noble and learned Lord told us that on the statute book there is a law which says that pirates shall be hanged. How on earth does one render a provision that says that pirates shall be hanged compatible with the protocol? Equally, in the unlikely event that either a parliament in the United Kingdom or an assembly or parliament elsewhere says that there shall be a death penalty, how does one render those two compatible? One cannot. The only answer is that one then has a situation where a court says that the two are not compatible.
When there is a provision in substantive law that there shall be the death penalty for particular crimes, surely the right course is for the noble and learned Lord, Lord Archer, to bring forward a substantive Bill to abolish the death penalty rather than to create on the face of this Bill an obvious conflict.
Lord Archer of Sandwell: The whole purpose of Clause 4 is to bring to the surface precisely those situations where our legislation is inconsistent with what appears to be an international consensus. There will be a declaration and the rest of the procedure in the Bill would follow.
Viscount Bledisloe: We already know that we have that. The time for the court to do that is when, at the end of the argument, it finds that there is a hidden incompatibility. If we know now that there is such an incompatibility, let us have a Bill to abolish the death penalty.
Lord Henley: Perhaps I may intervene very briefly to offer a degree of support to the Government Front Bench. I do not know whether that will be the kiss of death to their argument. I await to hear that in due course. When I saw these two amendments I looked to the White Paper, which I believe it was agreed at Second Reading was admirably drafted even though we received it a little late. I looked at the arguments set out and which were rehearsed by the noble and learned Lord, Lord Archer, in Articles 4(10) and 4(11) in Protocol 4 and Articles 4(12) and 4(13) in Protocol 6. On this occasion I accept the arguments that the Government have put forward in the White Paper. Having listened to the arguments, I do not know whether the Government will be putting forward the same arguments again. On these Benches we shall certainly not support these amendments if they are pressed to a vote.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): I am speaking to Amendments Nos. 4, 5, 113, 114, and 115, the latter being the amendment of the noble Earl, Lord Russell. There have been carefully argued cases put forward in respect of each of these amendments.
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I shall do them justice by spending a little time dealing with them because there are serious and important questions here to which the over-arching answer is that propounded by the noble and learned Lord, Lord Browne-Wilkinson: that we know the purpose of this Bill and we seek to put it into effect as soon as reasonably and practically convenient.
Amendment No. 4 would include Articles 1 to 4 of Protocol 4 to the convention within the definition of convention rights. The noble Lord, Lord Campbell of Alloway, asked a specific question on Protocol 4. The reason it is not included in our scheme is that the Government have not ratified it.
Amendment No. 5 would similarly include Article 1 of Protocol 6: Amendments Nos. 113 and 114 would insert the text of those articles into Schedule 1 to the Bill. Amendment No. 115 is a distinct amendment to which I shall turn separately in due time.
I hope that the tone of my reply will be regarded as helpful rather than obstructive. Before we introduced this Bill the Government did conduct a review of the United Kingdom's position on the three protocols to the convention which contain substantive rights which we have not ratified. That is Protocols 4, 6 and 7.
I am obliged for the support of the noble Lord, Lord Henley. We explained very clearly in the White Paper that we intend to sign and ratify Protocol 7 once an opportunity arises to legislate to remove some inconsistencies between what is in our domestic law and the provisions of that protocol. Following that review, we have concluded that it is not presently possible to ratify either Protocol 4 or Protocol 6.
Protocol 4 contains important rights. They reaffirm the statement in the White Paper that the Government would like to see them given formal recognition in our international legal obligations. But that would be possible only if potential conflicts with our domestic laws could be resolved. As was foreseen by the noble and learned Lord, Lord Archer of Sandwell, there were particular concerns about Article 3(2) of the protocol which protects the right of nationals not to be excluded from their home state.
Our calculation is that that could possibly be relevant to the position of about 5.5. million people, which is a larger figure than that contended by the noble and learned Lord, Lord Archer of Sandwell. It would relate to various categories of British nationals: British dependent territory citizens, British overseas citizens, British subjects and British nationals overseas who do not presently have that right. These matters need careful consideration and therefore we have no plans at present to ratify the protocol.
As regards Protocol 6 and the death penalty matter, I have always had a conscientious objection to the death penalty for murder and in no circumstances that I can contemplate would I ever vote for it. But that is my own personal position. That is a conscientious view that I have come to and I know that other people have a different view. The Government's view has been that the issue of the death penalty—I believe that this has been common currency among all political parties—is a matter of judgment and conscience to be decided by

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Members of Parliament as they see fit. I believe that all political parties have taken a view on that particular aspect which is different from other human civil rights. Therefore, if we ratified Protocol 6, we could not reintroduce the death penalty for murder, short of renouncing the convention.
The purpose of the Bill is to give effect to those rights and freedoms which we have an obligation to secure to individuals in our jurisdiction as a result of our being a party to the convention—that is precisely the observation made more elegantly by the noble and learned Lord, Lord Browne-Wilkinson--it is not to make provision for other rights. In due time, if we decide to ratify Protocols 6 or 4 (or any other protocol), your Lordships will have noted that Clause 1 provides the power for rights in Protocols 4, 6 or 7 (or, indeed, in any other) to be added by order to convention rights. That is the scheme that we have set. It seems to be workable, practicable and attainable.
I now turn to Amendment No. 115 and remind the Committee briefly that the thrust of the argument put forward by the noble Earl, Lord Russell, was that it should be possible in appeals to the special adjudicator under the 1993 Act to rely upon rights under the European Convention of Human Rights. It is the Government's intention that it should be possible to rely on those rights in appeals to the special adjudicator under the 1993 Act and we shall consider further whether any amendment to this Bill is needed to allow that result to be achieved. Therefore, it is a happy, felicitous conjunction that the noble Earl, Lord Russell, wanted Amendment No. 115 to be debated now because I believe that we have fully satisfied his legitimate expectations.
6 p.m.
Earl Russell: I thank the Minister warmly for his concluding words. I thank also all those who have spoken in this extremely interesting debate. I should like to respond particularly to the noble and learned Lord, Lord Browne-Wilkinson, who made what was in some ways the most important speech of the debate. I take his point about not complicating things. He might possibly have chosen a more elevated article of furniture than the kitchen sink, but we shall not argue about that.
I chose this amendment precisely because at present cases regularly go to Strasbourg which would come under Article 4 of Protocol 4 and which, if the amendment were accepted, would be considered in British courts. The noble Lord, Lord Williams of Mostyn, has given me a practical and entirely satisfactory answer to that, for which I thank him warmly. I am particularly glad of his assurance that he will look again at the drafting of the Bill to see how that assurance can be made effective.
I must apologise to the noble and learned Lord if I gave him the impression that, as an amateur, I was literally laying down the law about the relationship between Protocol 4 and British law. I think that I used the words, "in line with". I did not intend to pass any judgment on whether the rights are, in fact, law, but
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merely to suggest that the concepts were not entirely unfamiliar with English legal thinking. If I appeared to suggest more than that, I regret it.
I agree with the noble and learned Lord. Lord Archer of Sandwell, that the death penalty is becoming a dead issue, but I see why the Minister feels otherwise and I do not intend to take the point much further. However, I wondered whether it makes the noble and learned Lord's point—I do not intend to mention any matter which is sub judice even in another jurisdiction—that in the past few weeks the Commonwealth of Massachusetts has chosen to change its mind on that. issue.
To the noble Viscount, Lord Bledisloe, I say that if we were to pass the amendment tabled by the noble and learned Lord, Lord Archer, it would be perfectly possible to add a repealing schedule dealing with the relevant Acts about piracy. I should have thought that that would be a tidy way of dealing with that. However, having been given the most important practical point for which I have argued, in thankfulness I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Archer of Sandwell Lord Archer of Sandwell had given notice of his intention to move Amendment No. 5:
Page 1, line 9, at end insert—
("( ) Article 1 of the Sixth Protocol").
The noble and learned Lord said: I hope that it will not be said that I am less than enthusiastic about the purposes of this Bill. I have been urging my party to introduce it for quite a long time. We have listened with the greatest respect to the views of the noble and learned Lord, Lord Browne-Wilkinson, but I am hound to say that I did not quite follow his argument that to include these amendments would somehow make the realisation of those purposes more difficult. I can understand that we should concentrate on them, but it does not necessarily follow that we should concentrate on them to the exclusion of every other matter.
I had hoped that my noble friend would be able to say that at least the Government were proposing to ratify the two protocols in question. I echo the noble Lord, Lord Lester, in hoping that in due course the Government will ratify the Fourth Protocol to the International Covenant. Alas, that was not to be today, but that is not the fault of my noble friend. I do not propose to move this amendment.
[Amendment No. 5 not moved.]
Lord Lester of Herne Hill Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 6:
Page I, line 10, after ("Articles") insert ("13 and").
The noble Lord said: I have already spoken to this amendment. The noble and learned Lord, Lord Ackner, unfortunately had to leave the Committee before we reached this point and he has asked me to say that he would support the withdrawal of this amendment provided that we can return to the matter on Report. The Committee will remember that the amendment does not seek to incorporate Article 13 hut is intended

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specifically to allow the courts to have regard to Article 13, which is different and which seems to reflect the Government's intention as explained by the noble and learned Lord the Lord Chancellor. Therefore, it seems that the right course is to say "au revoir" but not "adieu" to the amendment and I therefore do not intend to move it.
[Amendment No. 6 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 7:
Page I, line 14, at end insert—
("( ) For the avoidance of doubt, it is hereby declared that the Articles constitute provisions of domestic United Kingdom law.").
The noble and learned Lord said: In my respectful submission, this is a very important amendment, although it does no more than indicate the object of the Bill as repeatedly stated by Ministers and again in the White Paper. Indeed, the noble Lord, Lord Williams of Mostyn, recently repeated that again. The object is to vouchsafe to the citizens of this country rights that they could only previously enjoy by going to the Court at Strasbourg. In addition, the wish has been expressed—and could well be realised—that the human rights which are concerned and vouchsafed in the convention will permeate the whole of our political society. However, there is a danger under the Bill that it might be argued that the Bill falls short of that because it patriates the rights but makes them enforceable only against a public body or authority. That would be at variance with what the Government and Ministers have proclaimed.
The amendment merely seeks to make it certain that those rights permeate the whole of society and that they penetrate the very corners of our law. The amendment would add a new subsection stating:
"For the avoidance of doubt, it is hereby declared that the Articles constitute provisions of domestic United Kingdom law".
I understood that that was precisely what the Government claimed was being done. The question I venture to ask is: are the articles the provisions of domestic United Kingdom law? If so, is there any harm in seeking to avoid doubt on the matter? I beg to move.
Lord Meston: I rise briefly to support this amendment. It provides an express and clear statement that the articles of the convention are part of United Kingdom law. The drafting of this Bill is admirable, but Clause 1(2) strikes me as a little awkward. It provides:
"Those Articles are to have effect for the purposes of this Act".
That begs the question which was canvassed at the beginning of Committee stage: what are the purposes of the Bill? That may be cleared up with a purpose clause later on. But it would be most unfortunate if there were any doubt in anybody's mind about the status and priority of convention principles in United Kingdom
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law. I therefore respectfully agree with the noble and learned Lord, Lord Simon of Glaisdale, that this is an important amendment.
Lord Campbell of Alloway: I prefer Amendment No. 9 which I believe serves this exact purpose but in a more appropriate fashion.
Lord Lester of Herne Hill: I am puzzled by the intervention of the noble Lord, Lord Campbell of Alloway. Amendment No. 9 has a wholly different purpose, which is to ensure that domestic courts are bound by judgments, decisions and so on of the European Court of Human Rights, whereas this amendment seeks to ensure that convention rights are secured into domestic law.
Lord Campbell of Alloway: I thank the noble Lord for giving way. We cannot discuss here the distinction between a means to an end and an end. I hope the noble Lord accepts that I am concerned with the end.
Lord Lester of Herne Hill: I believe that all noble Lords, including the noble and learned Lord the Lord Chancellor, agree that one of the purposes of the Bill is to secure the convention rights into domestic law, as is our obligation under the convention. In those circumstances, I am content on this occasion with an appropriate statement to that effect for the avoidance of doubt without necessarily going further than that, provided it is made clear that that is one of the purposes of the legislation.
6.15 p.m.
The Lord Chancellor: This amendment would make the articles referred to in Clause 1. the convention rights, part of United Kingdom domestic law. We shall discuss the way in which the Bill gives effect to convention rights in more detail when we come to Clause 3. I observe that the noble and learned Lord has tabled some amendments in relation to that clause which may relate to this. In addressing the present amendment it may be helpful if I explain briefly the approach that underpins the Bill. As the Long Title states, the Bill gives further effect to rights and freedoms guaranteed under the European Convention on Human Rights but in a particular way with a very distinctive scheme of incorporation. It achieves the purpose of the Long Title by requiring primary and secondary legislation to be read and given effect so far as possible in a way that is compatible with convention rights. It places a requirement on public authorities to act in a way that is compatible with convention rights and provides for the grant of judicial remedies where they do not do so.
The convention rights will not, however, in themselves become part of our substantive domestic law. The provisions in Clause 3 operate on an interpretative basis and require legislation to be construed in accordance with the convention rights so far as it is possible to do so. That interpretative provision interacts with the obligations put upon public authorities in accordance with the generous definition of "public authority" in the Bill. As we will explain in

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more detail when we come to the relevant clauses, this provides an effective way of giving effect to the convention rights and avoids constitutional and other difficulties which would arise if we made those rights part of domestic law. For example, Clause 3—which I acknowledge the noble and learned Lord desires to amend—makes provision for the continuing force and effect of legislation that is held to be incompatible with convention rights.
Lord Simon of Glaisdale: Perhaps the noble and learned Lord will allow me to intervene. Those are amendments to that provision.
The Lord Chancellor: I understand that. One must look at this alongside Clause 3. The scheme of the Bill—one may wish to challenge it—is to make provision so as to respect the sovereignty of Parliament for the continuing force and effect of legislation held by the courts by way of a declaration of incompatibility to be incompatible with the convention rights. If those convention rights were themselves to constitute provisions of domestic United Kingdom law there would be obvious scope for confusion when the courts were obliged to give effect to legislation that predated the coming into force of the Human Rights Bill. That might give rise to the doctrine of implied repeal. That is a doctrine that can have no application because of the express terms of Clause 3.
The courts need to know where they stand on how the_ convention rights on the one hand and legislation on the other should be given effect to when, as will often happen, the two cover the same ground. The scheme of the Bill provides clear information to the courts. The amendment would muddy the waters and sow doubt. I believe that the scheme of the Bill is clear. I have listened with respect to the words of the noble and learned Lord and shall read the report of his speech in Hansard. However, for the present we are of the view that the amendment is inconsistent with the scheme of the Bill.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down, perhaps he can help me in one respect. I strongly support the scheme of the Bill, but I remain in the dark about exactly what is intended. Clause 13 provides that a person may rely on a convention right in proceedings other than a challenge to the act of a public authority. Clause 1 informs us that the convention rights mean the rights set out in Articles 2 to 12 and 14 of the convention, and so on. Under Clause 13, in an appropriate dispute involving, let us say, libel law where someone seeks to rely on Article 10 of the convention as a guarantee of the right to free speech, in arguing that there was proper scope for the law of defamation, as I read the Bill, the person may rely on Clause 13, as he can indirectly at present and as was done in the Derbyshire libel case a few years ago.
If I am right on that point, it seems to me that the convention rights are to that extent part of our domestic law and can be relied upon, as Clause 13 states. Will the noble and learned Lord the Lord Chancellor say whether I am right on that; or is the intention to cut
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down the existing position where, for example, common law as developed in the courts matches the convention rights and under this Bill treats the convention rights as part of our law?
The Lord Chancellor: I shall consider what the noble Lord said. The position appears to me to be quite straightforward. It may be more complicated; I shall reflect upon it.
As I understand it, Clause 13 means only that a person may rely on the convention right in the way in which the Bill provides that individuals may rely upon convention rights, but his convention rights are, as it were, a floor of rights; and if there are different or superior rights or freedoms conferred on him by or under any law having effect in the United Kingdom, this is a Bill which only gives and does not take away.
Lord Simon of Glaisdale: I am most grateful to those noble Lords who supported the amendment. I am glad that my noble and learned friend has undertaken to consider the argument. Nevertheless, I am bound to say that the tone of his reply, as with the earlier amendment, indicates rather that he has nailed the flag of legislative self-righteousness to the mast. I hope that we shall not have that throughout the Committee stage.
My noble and learned friend said that it is not the intention to make the convention rights part of our domestic law. I am bound to say that, with all the propaganda and rhetoric, that is entirely contrary to what people were led to understand. My noble and learned friend gives only one reason why those rights which we were hoping to be vouchsafed should not be part of our domestic law: that to do so would conflict with a later provision of the Bill. However, that provision of the Bill is not engraved in tablets of stone brought down from a holy mountain. In fact it is already subject to an amendment.
I must anticipate what that later provision to which my noble and learned friend referred does. He said in effect, I think, that it abrogates the doctrine of implied abrogation of an earlier statute. As our law stands at present, when a later statute is inconsistent with an earlier one, the earlier one is abrogated impliedly in so far as it is not expressly abrogated. I appeal to my noble and learned friend to say if I have not accurately summarised the law. The later provision of the Bill alters that, and provides that notwithstanding that the later statutory provision which is invoked in the convention rights is inconsistent with the earlier one, the earlier one will nevertheless continue. That is no reason for refusing the citizens of this country the convention rights they were expecting. I trust that the time will come shortly when we shall alter that provision. It is extremely inconvenient. It means that where a later statute is inconsistent with the terms of the earlier statute, the earlier one is not impliedly abrogated as it is at present, but continues until Parliament goes through the complicated provision of a statutory order bringing the two into proper relationship.
Surely the simplest thing, which also maintains the sovereignty of Parliament, is to maintain the existing law. The existing law is very much a manifestation of

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the sovereignty of Parliament: the right of a later Parliament to abrogate the provisions of an earlier one. I am bitterly disappointed that so fundamental an amendment as this does not find ready acceptability. However, I undertook not to press any of my amendments to a Division and of course I shall stand by that. However reluctantly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 8:
Page I, line 23, at end insert—
("( ) No amendment may be made by an order under subsection (4) unless a draft of the order has been scrutinised and reported upon by the appropriate committee of each House of Parliament, and approved by resolution of each House of Parliament.").
The noble Lord said: On behalf of my noble friend Lady Young, perhaps I may deal briefly with the amendment. I think it was Sydney Smith who said that he never read a book before reviewing it; it prejudices a man so. In this case I took the trouble to read the Bill. I find that Clause 20(3) deals with the very point that we addressed in the amendment. If I can have an assurance from the Minister that that is the case, obviously I shall withdraw the amendment post-haste.
Lord Williams of Mostyn: Sydney Smith also said that when he died he hoped it would be eating foie gras to the sound of golden trumpets. I know how he feels. I give the assurance.
Lord Henley: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Interpretation of Convention rights]:
The Deputy Chairman of Committees (Lord Dean of Harptree): I should inform Members of the Committee that if Amendment No. 9 is agreed to, I cannot call Amendment No. 10.
6.30 p.m.
Lord Kingsland Lord Kingsland moved Amendment No. 9:
Page 2, line 2, leave out from ("right") to end of line 4 and insert ("shall be bound by any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, and must take into account any—").
The noble Lord said: Amendment No. 9 refers to Clause 2(1) which states:
"A court or tribunal determining a question which has arisen under this Act in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights".
The amendment seeks to replace the expression "must take into account any" with the words "shall be bound by".
I can see the superficial attraction of the Government's text. Our courts have hundreds of years of experience in balancing individual rights against public obligations. I am in no doubt that their decisions, if they are examined by the judges in the European
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Court of Human Rights, carry great weight with them and will in time enrich the jurisprudence of that Court. However, there is another side to which your Lordships' House should give greater weight.
The problem is that if our judges only take account of the jurisprudence of the European Court of Human Rights, we cast them adrift from their international moorings. The Bill, crewed by the judges, will have no accurate charts by which to sail because the judges are obliged only to take into account the provisions of the convention. That means that the Bill is effectively a domestic Bill of rights and not a proper incorporation of international rights. It means that the judges, at the end of the day, although they must take account of the Bill, are not obliged to act on it and can go in whatever direction they wish. I have great confidence in Her Majesty's judges, but I believe that they need greater guidance than they receive from the expression "take into account". That is the reason for my amendment. I beg to move.
Lord Lester of Herne Hill: I do not agree with the amendment. The only obligation under the convention is in Article 46, paragraph 1, which obliges the United Kingdom to abide by the final judgment of the European Court of Human Rights in any case to which it is party but not otherwise. The amendment seeks to bind our courts by other judgments of the European Court of Human Rights, even though the convention does not compel that conclusion.
It is profoundly ironic that the noble Lord, Lord Kingsland, should seek to move an amendment which is more European than the convention requires, especially in view of the Benches on which he sits and the Front Bench from which he speaks since his party has not been conspicuous in urging that European rights should be given great force in our domestic law.
In any event, to give the judgments of the European Court great persuasive force in our courts is sufficient. If a judgment of our courts turns out to be incompatible with the convention and is against the applicant, no doubt the European Court of Human Rights will eventually so decide.
In the meantime, I believe that our courts, being close to our citizens and our social and political circumstances, are best able to exercise the margin of appreciation enjoyed by our public authorities without being hampered unnecessarily by a doctrine of stare decisis which is not required by the European Convention on Human Rights.
Lord Campbell of Alloway: I believe that the intention is, so far as possible, to avoid journeys to the court at Strasbourg and to the Commission. If that be the case, it is not perfectly clear that this should be a mandatory provision and not "taking into account". It is

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a mandatory provision that they shall be bound. I have listened to the criticism of the noble Lord, Lord Lester of Herne Hill, and I do not find it at all convincing.
Lord Meston: The answer is that it is mandatory in the terms of the Bill. The judgment must be taken into account.
Lord Browne-Wilkinson: Perhaps I may be heard briefly on this point because soon it will concern me intimately. I am not a great supporter of the amendment. The doctrine of stare decisis, the doctrine of precedent, whereby we manage to tie ourselves up in knots for ever bound by an earlier decision of an English court, does not find much favour north of the Border, finds no favour across the Channel and is an indigenous growth of dubious merit. It would be unhappy if in dealing with the convention law we enacted that an English court, unlike any other court subject to the convention, was bound to follow an earlier decision of the European Court at Strasbourg.
It is an unhappy fact, inherent in all legal systems, that they develop. Decisions move some of the earlier things one wishes one had never said and greater light comes to be cast. It is undesirable when old cases are carved in stone and are incapable of being moved along.
I make my second point with all respect. I have found the jurisprudence of the European Court of Human Rights excellent, but a major change is taking place. We are now seeing a wider range of judges adjudicating such matters, a number of them drawn from jurisdictions 10 years ago not famous for their observance of human rights. It might be dangerous to tie ourselves to that, and I hope that your Lordships will not favour the amendment.
Lord Simon of Glaisdale: I found the phrase "take into account" far too vague for a legal concept. I tabled an amendment to replace it with the word "follow", which is on the lines of the thinking of the noble Lord, Lord Kingsland. It seemed to me to be the proper word in respect of paragraph (a), but I was much less certain about the other paragraphs. The noble Lord, Lord Kingsland, is a great expert on that matter and no doubt in reply he will clear it up.
At present, if an English court does not follow a decision of the European Court of Human Rights, the unsuccessful litigant can go to that Court and obtain a reaffirmation of the views of the Court. Under those circumstances, I cannot see the difficulty in enjoining that English courts should follow the decision. Indeed, it seems to me in every way advantageous in saving an unnecessarily expensive and extremely dilatory visit to Strasbourg.
The Lord Chancellor: In common with the noble Lord, Lord Lester, I was intrigued to hear the noble Lord, Lord Kingsland, move the amendment and be more European than the Europeans. I shall not embarrass him by asking him—as he sits on the Front Bench and comes to tell us what he proposes to invite the Committee to do about the amendment—whether he and his party support in principle the Bill and its
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objectives. I shall not embarrass him, but if he feels free to inform us, I dare say that the information will be of great interest to the Committee.
The noble and learned Lord, Lord Browne-Wilkinson, said that he was not a great supporter of the amendment. I am an opponent of the amendment and I was relieved when the noble and learned Lord moved into the substance, as distinct from the courtesies of his speech, and it emerged that he was really an opponent after all. Clause 2(1) requires a court or tribunal determining a question in connection with a convention right to take account of relevant judgments, decisions, declarations and opinions made or given by the European Commission and the European Court of Human Rights and the Committee of Ministers of the Council of Europe. Amendment No. 9 would provide that such judgments, etc., were binding if made or given by the European Court of Human Rights, while leaving their status under the Bill unaffected; that is to say, they would have to be taken into account but would not be binding if made or given by the European Commission of Human Rights or the Committee of Ministers.
We believe that Clause 2 gets it right in requiring domestic courts to take into account judgments of the European Court, but not making them binding. To make the courts bound by Strasbourg decisions could, for example, result in the Bill being confusing if not internally inconsistent when the courts are faced with incompatible legislation. In addition, the word "binding" is the language of precedent but the convention is the ultimate source of the relevant law. It is also unclear to me how "binding" would fit within the doctrine of margin of appreciation under the convention. I think that "binding" certainly goes further—and I understood that was what the noble Lord, Lord Lester, had in mind—than the convention itself requires. It was in that sense that I said I thought that the noble Lord, Lord Kingsland, was being more European than the Europeans.
We must remember that Clause 2 requires the courts to take account of all the judgments of the European Court of Human Rights, regardless of whether they have been given in a case involving the United Kingdom. That was the point made by the noble Lord, Lord Lester: the United Kingdom is not bound in international law to follow that Court's judgments in cases to which the United Kingdom had not been a party, and it would be strange to require courts in the United Kingdom to be bound by such cases. It would also be quite inappropriate to do so since such cases deal with laws and practices which are not those of the United Kingdom. They are a source of jurisprudence indeed, but not binding precedents which we necessarily should follow or even necessarily desire to follow.
The Bill would of course permit United Kingdom courts to depart from existing Strasbourg decisions and upon occasion it might well be appropriate to do so, and it is possible they might give a successful lead to Strasbourg. For example, it would permit the United Kingdom courts to depart from Strasbourg decisions where there has been no precise ruling on the matter and a commission opinion which does so has not taken into account subsequent Strasbourg court case law.

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These cases aside, it is not considered necessary to set out to provide that United Kingdom courts and tribunals are bound by Strasbourg jurisprudence, since where it is relevant we would of course expect our courts to apply convention jurisprudence and its principles to the cases before them. More fundamentally, this amendment, to my mind, suggests putting the courts in some kind of straitjacket where flexibility is what is required. That is what Clause 2 achieves, and, in my submission, our courts must be free to try to give a lead to Europe as well as to be led. The correct principle is to require our courts to take into account relevant European jurisprudence. That is what Clause 2 and indeed also Clause 8(4) in the special context of damages require our courts to do.
We will of course reflect on the arguments of those who have spoken for these amendments in the time between Committee and Report stages, but at present I have to confess that I am not persuaded to favour this amendment.
6.45 p.m.
Lord Kingsland: In thanking the noble and learned Lord for his response, I should like to say that the Opposition is against this Bill, although of course we are bound by the Salisbury Convention not to vote against it; but we are against it and our amendments are intended to convey that. If the noble and learned Lord accepts all our amendments we may change our position on that, but at the moment we are against the Bill.
Essentially, what the noble and learned Lord has said in his reply is that he is incorporating the substance of the convention but not its jurisprudence. It is therefore, in my submission, superficially the incorporation of an international treaty but in effect the presentation to this Chamber of a domestic Bill of Rights. It is our position in principle that a domestic Bill of Rights giving the kind of power that is given to the judges sits unhappily with our constitutional traditions, and it is for that reason and not for any European reason that this amendment has been tabled. If we were going to propose a domestic Bill of Rights, we would certainly want to look very closely at the substance of the convention to see how we could improve it, because I think that there are many things in the convention—which was after all drafted not long after the Second World War—which are now in need of refurbishment. So if it really is a domestic Bill of Rights, why does not the noble and learned Lord take this opportunity to look at it in the light of 1997 and to think again about the text? In short, as the jurisprudence of the convention is not binding, judges can really range over the substance of the Bill in any way that they want.
I am most grateful to the noble and learned Lord for saying that he will reflect on the contents of this amendment, and in those circumstances I beg leave to withdraw it.
The Lord Chancellor: Before the noble Lord sits down, if he is opposed and his party is opposed—and I take it from his answer that he and his party are
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opposed—to the principles of the Bill, how can he tell the Committee that he would change his position if we accepted all his amendments? Would that not, as a minimum, entail that all his amendments would have to add up to wrecking amendments which would wreck the principles of the Bill? Would he explain how that would be consistent with the acceptance of the Salisbury Convention?
Lord Kingsland: To the extent that I understand what the noble and learned Lord is saying, I do not accept that the amendments that we have tabled are wrecking amendments. I would need, at the end of the process, if he had acceded to the amendments, to reflect on the ultimate shape of the Bill and to see what position the Opposition would take at a subsequent stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale Lord Simon of Glaisdale had given Notice of his intention to move Amendment No. 10:
Page 2, line 2, leave out ("take into account") and insert ("follow").
The noble and learned Lord said: I have spoken to this already in connection with the previous amendment.
[Amendment No. 10 not moved.]
[Amendment No. 11 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 12:
Page 2, line 18, leave out second ("the").
The noble Lord said: This is an economic amendment which leaves out the word "the", which is redundant. I beg to move.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 13:
Page 2, line 21, at end insert—
("( ) Any rule made under this section shall be contained in a statutory instrument which shall be laid before Parliament and shall be subject to approval by resolution of each House of Parliament.").
The noble Lord said: Again, this is a relatively simple amendment which seeks that any rule made under subsection (3) should be subject to the affirmative resolution procedure before both Houses. That was addressed by the Delegated Powers and Deregulation Committee in its report printed on 5th November and referred to at paragraph 31.
I believe that that is the first reference that we have had this afternoon to that report. I hope that we shall have an assurance from the Minister or the noble and learned Lord the Lord Chancellor that they will take note, as we always did, of the report of that committee. It has made a number of suggestions, all of which should be followed.
Following that report, we tabled Amendment No. 13 and I see that that has been grouped with government Amendments Nos. 105 to 108 which I assume achieve more or less what I set out to achieve in my amendment, but no doubt those government amendments achieve it in a more efficient manner. I should like an assurance

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from the Minister that that is the case and that the affirmative rather than the negative resolution procedure will be followed. If I have that assurance, I shall obviously withdraw my Amendment No. 13 and we can deal with the government amendments when we reach them in due course.
Lord Williams of Mostyn: I am most grateful for the noble Lord's approach. I shall deal first with Amendment No. 13 and it may be convenient if I speak also to government Amendments Nos. 105 to 108.
I deal first with Amendment No. 105. That amends Clause 20 in order to provide a procedure for making rules, other than rules of court, under Clauses 2(3) or 7(8). By virtue of Amendment No. 108 to Clause 20, those rules are to be subject to the negative resolution procedure. That is the normal procedure for rules of court as, for example, in relation to rules made under the Magistrates' Courts Act 1980 and the Supreme Court Act 1981. Our amendments—and I believe that this is the assurance which the noble Lord seeks—are exactly in line with the comments made in paragraphs 31 to 33, to which the noble Lord, Lord Henley, referred, of the recent report on the Bill by the Delegated Powers and Deregulation Committee which noted the omission of the procedure from the Bill.
Amendment No. 13, which I understand will not be pressed, would make rules of court in Clause 2 and other rules made under Clause 2 subject to the affirmative resolution procedure. It goes much further if it is intended as a response to the Delegated Powers and Deregulation Committee because it requires the rules to be subject to the affirmative resolution procedure, which we think is unnecessary. Those are technical rules whose only purpose is to ensure that the Strasbourg jurisprudence is considered in an appropriate form by the courts and tribunals which will be interpreting the convention rights.
Amendment No. 106 is a technical amendment and is consequential on Amendment No. 105. "Any such instrument" in Clause 20(2), which refers back to "statutory instrument" in Clause 20(1), needs to become "any statutory instrument" because the insertion of a new subsection before Clause 20(2) by the first amendment prevents a reference back in the existing terms. Therefore, that is a tidying amendment.
Amendment No. 107 corrects a contradiction in Clause 20(2) and (3). Subsection (2) requires a statutory instrument under Clause 16—whether under subsection (2) or (7)—to be laid before Parliament, but not to be subject to any particular procedure. Subsection (3) makes an order under Clause 16(2) subject to the draft affirmative resolution procedure. This amendment provides that the reference in subsection (2) is to Clause 16(7) only rather than to Clause 16 as a whole.
Finally, Amendment No. 108 corrects a mistaken reference in Clause 20(4) to Clause 18(5). It should refer to Clause 18(6). It provides also, as I indicated earlier, that the order referred to in the new subsection inserted by Amendment No. 105 is, like an order under Clause 18(6), to be subject to the negative resolution procedure. I hope that with that short explanation, I have set any
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doubts which might still be lingering happily to bed, a good deal earlier than we shall all he going there, but there we are.
Lord Meston: Before the Minister sits down, will he indicate, in answer to the concern which has been raised by the Bar Council among others, that there will be wide consultation on the draft rules and that there will be a proper opportunity for the professional bodies to comment on draft rules?
Lord Williams of Mostyn: Of course, and I am happy to give that assurance. We take the stance that the more informed consultation there can be, particularly on intricate, technical matters, the better the final form is likely to be. I am happy to give that assurance to the noble Lord, Lord Meston.
Lord Henley: I thank the noble Lord for that explanation of his amendments and as to why he believes the negative rather than the affirmative resolution procedure is more appropriate. I note, as the noble Lord made clear, that that is the normal procedure for various other rules of court which must come before the House.
I have considerable sympathy for the noble Lord because I spent a number of years arguing on many occasions that the negative procedure was more appropriate. I can remember a number of noble Lords who have continually pressed for the affirmative resolution procedure when the negative procedure was appropriate.
At this stage, I should prefer to look again extremely carefully at what the noble Lord said and reserve the right to return to this matter either later in Committee, in that we shall not reach the government amendments until some time next week, or on Report. However, at this stage I shall withdraw my amendment and I suspect that I shall find myself agreeing with the noble Lord that the negative procedure is adequate on this occasion. However, I believe that it is right to at least reserve my position to return the matter. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 14:
Page 2, line 21, at end insert—
("(4) Nothing in this Act affects the rule of law that if a provision of an earlier statute is inconsistent with that of a later statute the former is impliedly (if not expressly) abrogated.").
The noble and learned Lord said: This was a matter that was raised earlier by my noble and learned friend the Lord Chancellor and to which I replied. But it requires something more to be said. It relates to the doctrine to which I referred earlier that a later statute abrogates the earlier one with which it is inconsistent. That of course is entirely in accordance with the sovereignty of Parliament and nobody has ever argued otherwise.
In framing this Bill, the Government were faced with a jurisprudential difficulty: namely, how to reconcile the importation of a supervening code of human rights with

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the doctrine of parliamentary sovereignty. While I am on the subject of parliamentary sovereignty, perhaps I may say that it tends to be exaggerated because our Parliament is not really sovereign in a global sense since it is amenable on appeal to the decrees of the European Court of Human Rights and, indeed, the European Court.
One must not exaggerate parliamentary sovereignty when Parliament is so much under the thumb of the Executive. That is nothing new. It has been going on for more than a decade, but it is perhaps more marked now when we have a Government of a distinctly dictatorial temper and aspect.
However, the Government were faced with trying to reconcile the patriation of the convention with domestic parliamentary sovereignty. So far as future legislation is concerned, I think their ingenious scheme, even if somewhat circuitous and cumbrous, must be accepted. It relies on the court making a declaration of incompatibility, whereupon the machinery to galvanise Parliament into bringing our domestic law into line with the convention rights is set in motion. But that is entirely unnecessary so far as pre-existing legislation is concerned because parliamentary sovereignty is, as I have suggested, completely vindicated by the doctrine of implied abrogation of an earlier provision by a later one with which it is inconsistent.
Therefore it is quite absurd for the Government, wedded as they are to their own drafting, to insist that a quite unnecessarily cumbrous and circuitous process should be set in motion as regards preceding legislation when the existing doctrine of implied repeal is available. My noble and learned friend has now taken off his wig and therefore he can, if he wishes, scratch his right ear with his left hand. But that is not a sensible way to set about it, nor is the extremely burdensome, circuitous and drawn out process of reconciling parliamentary sovereignty with the convention rights so far as pre-existing legislation is concerned. That is quite unnecessary. The amendment states,
"Nothing in this Act affects the rule of law that if a provision of an earlier statute is inconsistent with that of a later statute the former is impliedly (if not expressly) abrogated".
I ask my noble and learned friend to say whether that is not a correct statement of the existing law and why, if it is, it should not be applied to statutes that have been passed before the court finds that the convention rights override the earlier decision or the earlier decision is inconsistent with the convention rights which are made part of English law by this Bill. I beg to move.
7 p.m.
Lord Lester of Herne Hill: I respectfully agree with a great deal of what has been said by the noble and learned Lord, Lord Simon of Glaisdale. However, I part company from him when he suggests that the Bill is circuitous, complex and, as it were, contrary to principle. I think that the opposite is the case and I should like to try to explain why. I think that this is a satisfactory, if subtle, reconciliation of the principles of
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parliamentary sovereignty with the need for the judiciary to be able to provide effective domestic remedies.
The problem that the Committee is being asked to consider is what are the principles to be applied by our courts in interpreting legislation so as to be compatible, where possible, with the convention. The policy of the Bill is that where primary legislation cannot possibly be read in accordance with the convention, the courts must give deference to parliamentary sovereignty, grant a declaration of incompatibility and then leave it to government and Parliament to remove the mismatch and provide the remedy. That is similar to what is known as the New Zealand model based on the New Zealand Bill of Rights. However, the Government have, in my view wisely, omitted from this Bill what I believe is Section 13 of the New Zealand Bill of Rights which expressly ousted the doctrine of implied repeal to which the noble and learned Lord, Lord Simon of Glaisdale, has referred.
Every time the courts give a declaration of incompatibility there will in a sense have been a systemic failure because it will mean that the statute book does not properly give effect in the judges' opinion to our international treaty obligations, and there will then have to be inconvenient speedy legislation to put the matter right. The way in which the Bill therefore seeks to reduce that systemic failure to the minimum is by commanding the judges in Clause 3(1) to construe legislation so far as is possible to give effect to convention rights. It leaves entirely to the judges the task of developing the principles of interpretation to give effect to that command; namely, as far as possible to construe legislation compatible with the convention.
I am delighted that the noble and learned Lord, Lord Wilberforce, is in his place because at least 17 years ago he gave a decision of the Judicial Committee of the Privy Council in an appeal from Bermuda, The Minister of Home Affairs v. Fisher in 1980, in which he said that in order to give effect to the object and purpose of legislation to incorporate the European convention into the domestic law of Bermuda, one should give a generous interpretation to the rights and should avoid what has been called the austerity of tabulated legalism. He explained how the courts need to fashion their own principles of interpretation to accomplish that objective. That approach of the noble and learned Lord, Lord Wilberforce, was followed by Lord Diplock in another Privy Council case, entitled, I believe, Jobe v. The Attorney-General of the Gambia. I believe that our judges, in complying with Clause 3(1), will fashion, where possible, principles of interpretation to enable legislation to be read in accordance with the convention.
I find nothing in the Bill to prevent the courts, where appropriate, from using the doctrine of implied repeal to achieve that objective. There are difficulties about the doctrine of implied repeal—it is not wholly uncontroversial—but there is nothing that I can see in the Bill, as I say, to prevent that tool or instrument of interpretation from being used in appropriate cases for existing legislation. As regards future legislation, the Government—again, wisely, in my view—have taken another leaf from the New Zealand book and imposed an obligation on themselves, through Parliament, to

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inform Parliament whether they consider a future statutory provision to be incompatible with the convention. Again, that will enable our courts, in looking at future legislation, to give primacy to convention rights in the absence of a clear and unequivocal expression to the contrary, normally in a ministerial statement to both Chambers.
I regard the Bill as an ingenious and successful reconciliation of principles of parliamentary sovereignty and the need for effective domestic remedies. I feel a little like Sky Masterson in "Guys and Dolls", as a sinner who has converted, because in my first Private Member's Bill I sought to give the courts the power to strike down inconsistent legislation. I believe on reflection that, in the second Bill, after a good deal of arm twisting by some Members of this place rather more noble and learned than myself, I was persuaded that that was too strong, and that something along the lines of this Bill was more appropriate.
I now believe that the Bill produces a better solution than the aggressive strike-down power for which I originally contended, for all kinds of reasons with which I need not detain the Committee. For those reasons, I do not consider the amendment to be necessary and would rather leave it to the judges to fashion their own principles of interpretation in accordance with the command in Clause 3(1).
The Lord Chancellor: I am grateful to the noble Lord, Lord Lester of Herne Hill, for his kind and considered observations about the quality of the Bill, but I doubt that those will persuade the noble and learned Lord, Lord Simon. In my view the amendments would destroy the intended purpose of Clause 3. In speaking to Amendment No. 14 I take the opportunity to speak to Amendments Nos. 17, 18 and 22.
To accept the amendments would destroy the intended purpose of Clause 3 and the scheme of the Bill. That clause sets out the relationship between the convention rights and both primary and subordinate legislation. The central point is that the Bill provides for an interpretative approach. As Clause 3(1) states:
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights".
The noble Lord, Lord Lester, has consistently said that when in future statements of compatibility are made by Ministers, that will encourage the judiciary in its interpretative endeavours.
Having decided to adopt that interpretative approach it is of course helpful to the courts (and other public authorities) for the Bill to signal what the position is intended to be where a compatible construction is impossible. That information is supplied by subsection (1) itself and also, in conjunction with subsection (2)(a), by paragraphs (b) and (c); that is, the two paragraphs which the noble and learned Lord is seeking to remove. Those two paragraphs make it clear that the requirement to interpret legislation in accordance with the convention rights does not mean that incompatible primary legislation, or inevitably incompatible subordinate legislation, since deriving from parent legislation which itself is incompatible, is to be
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invalidated or otherwise made inoperable because of that incompatibility. They ensure that the courts cannot disapply, refuse to give effect to, or ignore Acts of Parliament on the grounds of their incompatibility with the convention rights. That is what we intend. We submit that this scheme is consistent with the sovereignty of Parliament as traditionally understood.
The effect of removing Clause 3(2)(b) and (c), and the inclusion of a new subsection (4) in Clause 2, stating that the Bill does not affect the doctrine of implied repeal would be contrary to the principles underlying the Bill. Under the method adopted by the Bill to give effect to the convention rights, it is just not relevant to cite the doctrine of implied repeal. The convention rights will not, as I have already said when responding to a previous amendment in the name of the noble and learned Lord, become part of our domestic law, and will therefore not supersede existing legislation or be superseded by future legislation. In both cases the convention rights will be used to interpret and give effect to that legislation.
The two amendments to Clause 4 are consequential to Amendments Nos. 14 and 17. Clause 4 is the mechanism provided by the Bill for handling situations where the court finds legislation, whenever enacted, to be incompatible with the convention rights. It avoids the pitfalls of this set of amendments by ensuring that the courts are not brought into conflict with Parliament when a discrepancy is identified. It is also in harmony with the UK's existing constitutional arrangements. When we reach that clause, we will be able to discuss this matter in more detail.
I do not accept that the Bill adopts a scheme which is cumbrous and circuitous. On the contrary, I believe that the scheme is right. It rests happily with our traditions. It is intellectually coherent and, with respect to the parliamentary draftsman, it is also elegant. The scheme of this Bill is that if statutes are held incompatible on convention grounds, then it is for Parliament to remedy that. We do not wish to incorporate the convention rights, and then, in reliance on the doctrine of implied repeal, allow the courts to strike down Acts of Parliament.
The intended scheme of this Bill rests more comfortably with our tradition of parliamentary sovereignty. I believe also that this is a scheme of incorporation which is welcome to the higher judiciary. The doctrine of implied repeal is not without its own difficulties, but I have no quarrel with the noble and learned Lord's short statement of that doctrine. We are, by Clause 3, inviting Parliament to accept a wholly different scheme of incorporation. It is one which rejects the route of the doctrine of implied repeal, which, together with express incorporation of the convention rights, the noble and learned Lord would prefer us to follow, but it is one which we do not intend to follow.
7.15 p.m.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down I wonder whether, without imposing upon him too much, I could clarify just one matter. I fully support everything that he has said.

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I wonder whether he could help in this way: does it follow from what he said that where there is existing legislation, before the Human Rights Bill becomes law that has to be interpreted so far as possible to comply with convention rights in accordance with Clause 3(1), that the courts' obligation will be to strive, wherever possible, to read the existing legislation in accordance with the convention, using whatever interpretative tools they think fit, and, if they fail, to grant a declaration of incompatibility, if that is their conclusion? That is how I understand the position. One does not need the doctrine of implied repeal, which would involve saying that the existing statute is, as it were, void, has been overtaken by a subsequent Act, but instead, by a process of judicial interpretation, the existing legislation is to be read in accordance with the convention rights wherever possible, which is what Clause 3(1) says. If that is the position, I am entirely content.
The Lord Chancellor: In my view that is what the Bill means. The interpretative provision of Clause 3 applies to legislation in being prior to the passage of this Act and legislation that comes into being after the passage of this Act. I see no need for any reliance on the doctrine of implied repeal.
Lord Simon of Glaisdale: I am afraid that, once again, I found that a most disappointing reply. The main thrust was that the doctrine of implied repeal, which is part of existing law, is inconsistent with the scheme of Clause 3. So it is, because every amendment tends to be inconsistent with the provision of the Bill. If every amendment is to be dismissed because the Government have drafted their Bill otherwise, we might as well tear up the Marshalled List and go home.
I asked my noble and learned friend whether he accepted that the doctrine of implied repeal was an existing part of English law. I believe he accepted that it was, although he said that there might be difficulties in it.
The noble Lord, Lord Lester of Herne Hill, thinks that this provision in the amendment may be unnecessary, because the courts will endeavour to construe previous legislation consistently with the convention rights. I said that that should, and will, be so. But nevertheless, there are cases of inconsistency. The Government have faced them so far as legislation passed after the Bill has been enacted. They accepted that the inconsistency should be dealt with by a way which is consistent, however cumbrous—I know that my noble and learned friend does not like that word—but at any rate it can bring the two into line consistently with the doctrine of parliamentary sovereignty.
However, that is quite unnecessary so far as legislation passed before this Bill becomes law is concerned, because the doctrine of implied repeal deals with it immediately and consistently with parliamentary sovereignty. All the appearances are, I am afraid, that my noble and learned friend is devoted to his Bill—every line, every word, every note of punctuation. However, I really must ask him to consider again the argument that has been put.
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Members of the Committee may remember the story of a mediaeval English king campaigning in France. He and his men came to the walls of a small town and demanded that the citizens should surrender the keys. The city fathers came out, clad only in their shirts and with halters round their necks, and presented a petition giving 100 reasons why they should not surrender the keys. The first reason was that they had lost the keys—whereupon the king very graciously dispensed with the other 99. If my noble and learned friend would even give one good reason for rejecting this amendment, I would willingly withdraw any requirement of anything further to be said. However, having undertaken not to press my amendments to a Division, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Viscount Colville of Culross: Have I time to ask the noble and learned Lord the Lord Chancellor a brief question at this stage?
The Deputy Chairman of Committees (Lord Lyell): Had I beaten the noble Viscount to the punch on the previous amendment? I thought that the noble and learned Lord had withdrawn it. The Question is that Clause 2, as amended, shall stand part of the Bill. Of course there is time for the noble Viscount's question.
Viscount Colville of Culross: I simply did not want to run over the allotted time for this part of the discussion on the Bill, which I do not think I shall.
The debate on Clause 2 has been at a very high level of jurisprudence. Nevertheless, as I understand it, the Bill is expected to have quite considerable effects on the criminal law. I wish to ask the noble and learned Lord the Lord Chancellor two questions about the practicalities of this provision. If I am talking about matters that are banal and humble, I apologise. But that, unfortunately, is where the criminal law starts.
To take an example, there is on the statute book an Act entitled the Criminal Procedure and Investigations Act, which was passed last year. It lays down timetables and procedures for preparing trials in the Crown Court. There is also a provision in Clause 3 which states that the courts shall interpret that legislation and subordinate legislation made under it—and there is some laying down of timetables—in such a way as to be compatible with convention rights. Included in Article 6 of the convention are the due process rights. I note particularly that a defendant is to have adequate time and facilities for the preparation of his defence and to obtain the attendance and examination of witnesses on his behalf.
The first problem is that that sort of point—that is to say, the timetable of the trial, the preparation of the defence, the ability of defence witnesses to come—is raised at the very early stage of a trial, and at a comparatively humble level of the judiciary, exemplified by myself. I do not think that I am the only circuit judge who is not at all familiar with what the European Court has said about due process. I happen to

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know a good deal more about what has been said under the international convention, but certainly not under the European convention.
We shall need to know what sort of latitude is available in the exercise of a judicial discretion when we are looking at what is adequate time and facilities for the preparation of the defence, and what it is reasonable to allow by way of holding up the case for a very long time in order that a particular defence witness can be called. I am sure that the European Court has been entirely reasonable in its interpretation of these provisions; however, I do not think that on the whole the judges will know. Nor do I believe that the magistrates will know, if such a case comes before them.
I simply ask the noble and learned Lord this: are we to have training in relation to the application of the Bill in the comparatively humble courts? The Government must have worked out which parts of the convention are likely to be appropriate for the type of matter about which I have spoken and the level to which I referred. It would not be a major imposition to ask the Judicial Studies Board to give us information about the likely impact of the Bill on our day-to-day work.
Another point is that there is certainly not in my library, nor on offer from the south-eastern circuit library service, copies of the European human rights reports. That is where, under Clause 2(1)(a) we are to find out what was the judgment, decision or declaration of the European Court of Human Rights. Without ready access to those when the point turns up at the interlocutory stages which I have mentioned, I do not think that we shall make much progress.
It is not an idle matter because if the courts get it wrong at that stage, the trial will go ahead and the Court of Appeal will pronounce. I do not think there would be any universal guidelines arising out of one particular case. The danger is that the case will have to be sent back for re-trial and we shall spend a great deal of time and money on it. These practicalities, though probably intensely boring to the Committee, will nevertheless be one of the cases where the Bill strikes. I should like some assurance from the noble and learned Lord on the point.
Lord Avebury: Before the noble and learned Lord replies to that question, perhaps I may ask him about a matter of fact. It is whether the judgments, decisions, declarations and advisory opinions of the European Court of Human Rights, which it is essential for the judiciary to study, are available on the worldwide web. If they are, then obviously the lower echelons of the judiciary would have ready access to them, provided they are properly trained in the use of the web. I hope that that is already the case.
Viscount Colville of Cuiross: In reply to the noble Lord. Lord Avebury, I must say that that would be so if we had the equipment with which we could access the worldwide web. We do not have such equipment and there is nothing on the horizon to provide it.
The Lord Chancellor: First, let me assure Members of the Committee that plans for judicial training are well
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in hand under the auspices of the Judicial Studies Board, under the chairmanship of Lord Justice Henry. The board is working on plans for judicial training at every level. Sums have been set aside for that purpose within existing budgets.
I do not know the answer to whether the judgments and decisions of the kind referred to in Clause 2(1)(a) are on the worldwide web but I shall write to Members of the Committee who asked about it.
However, I wish to make a more fundamental point. The noble Viscount's second question seemed to entail an assumption that counsel should be spoon-fed. Counsel should not be spoon-fed. It is the duty of counsel to research their case and, if they have a convention point which they desire to raise, they must equip themselves to do so and gain copies of any relevant reports that they desire to draw to the attention of the court. It is not the function of the state to do counsel's research for him.
Lord Mackay of Drumadoon: Before the noble and learned Lord Chancellor sits down, will he confirm the following? In a case where the accused person or the defendant represents himself and raises some general point based on convention rights, as the Bill is drafted it is not intended that there should be any duty whatever on the court to research the jurisprudence set out in the various judgments, decisions, opinions and the rest of the matters referred to in Clause 2(1)(a), (b), (c) and (d). If the jurisprudence is not cited, the judge is perfectly entitled to go ahead and decide the matter on the arguments advanced by the party defendant himself.
Lord Lester of Herne Hill: Before the noble and learned Lord replies, will he confirm that textbooks already exist which are inexpensive and comprehensive? They summarise the case law. In addition there are periodicals that keep practitioners up to date, even though the convention is not incorporated. Is it right that the Government propose to spend up to £4.5 million, as is made clear in the Explanatory Memorandum, on ensuring that judges and members of tribunals are properly trained in that new area of jurisprudence for them?
The Lord Chancellor: Certainly I can confirm that there are textbooks which are comparatively inexpensive and that there are comprehensive periodicals. They are readily accessible. I repeat what I said, that counsel are not to be spoon-fed but must educate themselves as part of a continuing process of self-education in developing areas of the law. It is intended that convention rights and values shall permeate the work of the courts at all levels. It is up to counsel to get themselves up to speed in that endeavour.
As regards the unrepresented defendant, in this country it is usually a matter of choice because in the criminal courts legal aid will be available. But where a defendant insists upon defending himself, there is a well

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recognised and honourable tradition in the courts of the judge giving the defendant the maximum assistance that he can.
Lord Meston: Will the noble and learned Lord also agree that there is a tradition that prosecuting counsel should assist the court in those circumstances?
The Lord Chancellor: Yes.
Clause 2, as amended, agreed to.
Baroness Gould of Potternewton: I beg to move that the House be now resumed. In moving the Motion, may I suggest that the Committee stage begin again not before 8.35 p.m.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

General Lighthouse Authorities (Beacons: Maritime Differential Correction Systems) Order 1997
7.35 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft order laid before the House on 28th October be approved [11th Report from the Joint Committee].
The noble Baroness said: My Lords, the General Lighthouse Authorities (Beacons and Maritime Differential Correction System) Order 1997 was laid in draft on 28th October. This order defines a differential signal as an aid to marine navigation and permits the General Lighthouse Authorities to operate a system and the General Lighthouse Fund to meet the operating costs.
The General Lighthouse Authorities (GLAs) are the statutory providers of marine aids to navigation in the waters surrounding the United Kingdom and the Republic of Ireland. They are: the Trinity House Lighthouse Service, responsible for England, Wales and the Channel Islands; the Northern Lighthouse Board, responsible for Scotland and the Isle of Man, and the Commissioners of Irish Lights, which is an all-Ireland body and responsible for both the Republic of Ireland and Northern Ireland.
They provide traditional aids to navigation—lighthouses, buoys and beacons—together with radionavigation aids—the Decca Navigator, radiobeacons and radar beacons (more commonly known as Racons). The GLAs are not publicly funded. They are funded from the General Lighthouse Fund, which draws most of its income from the levy of light dues on commercial and fishing vessels calling at UK and Republic ports. The GLAs spend around £65 million per annum. They have an excellent record of efficient operation and joint working over recent
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years which has resulted in light dues being held at 1993 levels until 1997, when they were reduced by 4.6 per cent.
The statutory position of the GLAs as providers of aids to navigation and of the Department of Environment, Transport and the Regions as managers or trustees of the General Lighthouse Fund are set out in Part VIII of the Merchant Shipping Act 1995.
Turning to the order, in 1995 the GLAs carried out a joint consultation exercise to determine the provision of marine aids to navigation over the next 25 years or so. The resulting proposals received qualified acceptance from Ministers on 18th March 1997 (Hansard, col. 505). The future provision will include: maintaining traditional aids—lighthouses, buoys and beacons; discontinuation of the Decca Navigator System around the year 2000; an interest in adopting the North West Europe Loran C System when acceptable UK coverage is available; termination of the current radiobeacon system, which is now little used, and the provision of a differential global positioning system. This order deals with the latter system.
The Global Positioning system is well known. It is generally used to refer to the US Department of Defense-operated satellite system though there is also a Russian system. GPS can be used free of charge by the end user but the system can be subject to variations and perhaps failure without the end user realising that there is a problem. That can be corrected by the addition of differential signal. That is transmitted from a known location where GPS is monitored, the known position compared with that indicated by GPS, and corrections are transmitted to suitably equipped receivers.
Section 223(3) of the MSA 1995 provides powers for the Secretary of State to propose (by affirmative order) that a different type of aid to navigation shall be construed as an aid to navigation. As such, it can be operated by the GLAs and the costs can be met from the GLF. That power has been used three times; twice in 1987 to permit the GLAs to adopt the Decca Navigator (two orders were required, one to cope with the general UK provision, with a second dealing with the particular requirements of operating a transmitter from Jersey) and again in 1991, when provision was made for the GLAs to operate the Loran C system. In the event the latter power has not been used but has been retained in the event of the UK adopting the scheme.
The Republic of Ireland proposes to make similar provisions within the Merchant Shipping Act (Commissioners of Irish Lights) Bill 1997, which is currently under consideration in the Republic's Parliament.
Apart from a clear contribution to safety, the provision of DGPS is part of a package which is expected to save about £30 million over 25 years. The system is expected to cost £1.7 million in capital with running costs of about £35,000 per annum. That compares with the £3.5 million annual running costs of the Decca Navigator. Provision for the capital costs has already been made within the expenditure proposals of the GLAs and the detailed financial planning arrangements of the GLF. There would be no

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requirement for an increase in light dues in the short term. In the longer term, the expectation of closing the Decca Navigator around 2000 will greatly assist the department in maintaining light dues at low levels. I beg to move.
Moved, That the draft order laid before the House on 28th October he approved [11th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
Lord Brabazon of Tara: My Lord, I thank the noble Baroness for introducing this order and giving the House such a comprehensive view of what it does. I am sure that everyone will agree that it is a different kettle of fish to what has been debated so far this afternoon. Nevertheless, it is important to many people, including yachtsmen, among whom I count myself.
I congratulate the General Lighthouse Authorities on what they have been able to do over the past two years, culminating this year in a reduction in light dues. I welcome the order as it stands. As the noble Baroness said, it foreshadows—I do not know whether that requires any further parliamentary time—the end of the Decca system around the end of the year 2000. That was an issue with which I had some involvement some six years ago. I should have liked to see it done then, but it was not possible. The Decca system was a good one but, unfortunately, it is expensive to run. The fact is that Decca can no longer obtain money from selling the system, which means that it receives no income. That is why it has become a cost on the General Lighthouse Fund. In the old days it obtained a little money from every hit it sold.
The noble Baroness referred to the fact that the GPS is operated by the United States Department of Defense and is now what most people use. Sets can be bought for as little as £200 each. The problem with it is, as the noble Baroness said, that the United States Government can alter its accuracy and therefore we need to have this mechanism in place which can compensate for that.
I should like to ask the noble Baroness one or two questions. I have not given notice, and I apologise for that. If she cannot answer them, perhaps she will write to me in due course. At one time there was a proposal that it might be possible to make a contribution towards the cost of GPS in order to obtain a better guarantee from the United States Government. I do not know whether anything happened in that regard or whether it has been pursued. I appreciate the difficulties that it may cause and that we may not obtain the necessary guarantees as to the validity of the system.
The noble Baroness mentioned also the Commissioners of Irish Lights. In my day there was considerable argument about the cost of the Irish lighthouse authorities and how much was coming from UK light dues. I do not know what the present situation is and whether we are still subsidising Irish lights to the extent that we were. I realise that it is an all-Ireland body and therefore we must take care of the Ulster part of it, but we are subsidising the Republic part of it by a considerable amount. Perhaps the noble Baroness can tell me what progress has been made over the years on that.
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Generally, I welcome the order and I am encouraged to hear of the possible savings of £30 million over the next 25 years. I am sure that we shall end up with a better system than what we have now, and the GPS is the system that most people use at the moment.
Lord Inglewood: My Lords, I am sure the whole House is grateful to the noble Baroness for so comprehensively explaining the order and its background. I should like to thank also my noble friend Lord Brabazon. I am someone who prefers to keep his feet firmly on terra firma and it was extremely helpful to hear his remarks. This order seems to combine saving lives with saving money, which is an excellent proposition, and we support it.
Baroness Farrington of Ribbleton: My Lords, I thank the noble Lord, Lord Brabazon, for raising his two questions and for his support for the order. Perhaps I may write to him in detail in relation to the financial proposals with regard to possible support of the United States' system and the benefits.
With regard to the Irish subsidy, the current arrangements pre-date the establishment of the Irish Republic, as I am sure the noble Lord is well aware. Officials will be proposing to Ministers that negotiations commence later to look at the current and future funding arrangements. I commend the order to the House.
On Question, Motion agreed to.

Transport and Works (Description of Works Interfering with Navigation) (Amendment) Order 1997
7.48 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft order laid before the House on 28th October be approved [11th Report from the Joint Committee].
The noble Baroness said: My Lords, I am pleased to have the opportunity of inviting this House to approve an affirmative order under the Transport and Works Act 1992 (TWA for short). This order involves minor, but useful, amendments to the original 1992 order and should not, I believe, be controversial.
It would doubtless be helpful if I first explain to the House the background and purpose of the proposed order.
Although the TWA is mainly concerned with new railway and tramway schemes, it also enables other types of projects in England and Wales which would previously have been authorised by private Acts to be approved by ministerial orders. Those include inland waterways and projects which interfere with rights of navigation, such as, for example, river barrages.
The order-making system is set out in Part I of the Act. Section 3 enables the Secretary of State to make an order for the carrying out of works which would interfere with rights of navigation and are of a

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description prescribed by order made under Section 4. The legislation was framed in this way to ensure that the powers were sufficiently flexible to enable the order-making procedure to extend to novel or unforeseen projects without further primary legislation. In hindsight, the Act might have been framed so as to permit any types of works to be approved under Section 3 without the need for specific descriptions. But there was concern at the time that the scope of the order-making powers should be carefully circumscribed.
The first Section 4 order—the Transport and Works (Descriptions of Works Interfering with Navigation) Order 1992—prescribed 10 categories of works. The effect of the order is to enable promoters of the prescribed works to make an application under Section 3 of the TWA. It does not mean that works of such description will necessarily be approved. The case for approving particular projects is considered only in relation to specific applications made to the Secretary of State under Section 3.
The first order sought to cover the full range of projects which might interfere with rights of navigation, but works projects have been developed more recently which were not foreseen at the time. We have in mind in particular proposals for certain millennium works in Portsmouth Harbour which require a Section 3(1)(b) order and are not prescribed in the existing Section 4 order. These projects include a retail development to be constructed on a piled platform, an observation tower and an illuminated water fountain sending out jets of water periodically across the harbour. The amending Section 4 order prescribes these types of works.
We have undertaken a public consultation exercise on the proposed changes. Those consultees who responded have generally been supportive or have offered no comments. Two organisations questioned the need for the order but their concerns appear to be based on misunderstandings about the overall purpose and nature of the TWA order-making process. One of those two respondents thought that the order would enable works to be authorised by Section 3 order which would more appropriately be approved under other statutory powers. The proposed order was therefore an unnecessary duplication. The second objector argued that by not prescribing the proposed categories of works in the first Section 4 order, Parliament had indicated that such works should continue to be authorised by Private Bill and there was no compelling case for enabling them to be subject to approval by TWA order rather than by an Act of Parliament.
On the first point, the TWA procedure is permissive. It is for promoters to decide whether they need the statutory powers and protection from actions in nuisance afforded by a Section 3 order. They are unlikely to apply for such an order if there is another more convenient and appropriate means of approving a project. Moreover, the Secretary of State can refuse to make an order where he considers that the necessary powers could be obtained by other means—Section 13(2) of the Act. In the case of the proposed works in Portsmouth Harbour, we are satisfied that a Section 3 order under the TWA is the appropriate mechanism for obtaining statutory
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authorisation. Having regard to Section 3(2) of the TWA, which prevents the Secretary of State from making a Section 3 order if the primary object could be achieved by means of an order under the Harbours Act 1964, we are satisfied that a harbour order is not suitable because the proposed works are not for a harbour purpose and the promoters do not have a substantial interest in the harbour as required under the 1964 Act.
Turning to the second point, Parliament decided in enacting the TWA that it was no longer appropriate for infrastructure projects, involving as they do consideration of detailed and local planning issues, to be the subject of Private Bills. Sections 2 and 4 of the Act were therefore inserted to enable the range of projects coming within Sections 1 and 3 to be prescribed and extended by order with the aim of ensuring that all works schemes are normally determined by the TWA procedure where the only alternative would be a Private Bill. Parliament clearly envisaged that there might need to be more than one order made under Sections 2 and 4 by referring in these sections to "orders" in the plural.
It is worth repeating that, by bringing forward the order, the Government are not necessarily signalling their support for any of the proposed projects covered by the extended descriptions of works. Each application under Section 3 of the TWA will be considered on its merits, after taking into account any objections to the proposals. What we are saying is that, in line with the whole thrust and purpose of the 1992 Act, the proposed works in Portsmouth Harbour and other similar projects should be subject to the TWA statutory approvals process where the only alternative would be a Private Bill. That is what this order, if made, will ensure. I commend the order to the House.
Moved, That the draft order laid before the House on 28th October be approved [1Ith Report from the Joint Committee]—(Baroness Farrington of Ribbleton.)
Lord Brabazon of Tara: My Lords, very briefly and rather frivolously, the noble Baroness said that she hoped that the order would be non-controversial. The explanatory note on the back of the order says that it amends the meaning of "pier". Provided she keeps to that spelling of "pier", it will be non-controversial.
Lord Inglewood: My Lords, I am most grateful to the noble Baroness for her comprehensive overview of the circumstances bringing about the tabling of the order. Speaking purely personally, I have always been in favour of fountains. If the order makes it easier to bring about the creation of new fountains where it is everyone's wish that there should be such things, I am sure everyone will be in favour of it.
On Question, Motion agreed to.
Lord Haskel: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.56 to 8.35 p.m.]

Human Rights Bill [H.L.]
House again in Committee.
Clause 3[Legislation]:
Lord Kingsland Lord Kingsland moved Amendment No. 15:
Page 2, line 23, leave out ("possible") and insert ("reasonable").
The noble Lord said: I can put the point that lies behind this amendment simply. It relates to the debate on the previous amendment. The noble and learned Lord may well take the view, having heard me, that he has already responded adequately. The point is simply this: is Clause 3(1) intended to be a reflection or an extension of the common law rules of statutory interpretation? I believe that 1 need add nothing further to my question. I beg to move.
Lord Cooke of Thorndon: The noble Lord, Lord Lester of Herne Hill, earlier in Committee, mentioned the New Zealand Act. As Clause 3 is the corresponding provision of the United Kingdom Bill, it seems appropriate to say just a word or two comparing the two.
One appreciates that, as the noble Lord, Lord Kingsland, has perhaps suggested, Clause 3(1) of the Bill definitely goes further than the existing common law rules of statutory interpretation, because it enjoins a search for possible meanings as distinct from the true meaning—which has been the traditional approach in the matter of statutory interpretation in the courts.
The difference is not as huge as might be thought at first sight. Even under the New Zealand corresponding provision, the courts have said that the kind of interpretation now enjoined is not a strained interpretation; it is one that is fairly possible. I suspect that the very strength of the clause, as it is now worded, may have been of material assistance to the noble and learned Lord the Lord Chancellor in forming the view which he expressed at Second Reading that declarations of incompatibility would be rare.
The corresponding New Zealand provision is in different language and in some respects the United Kingdom proposed provision may be slightly wider. I shall read the two provisions. It seems to me that in substance in the important matters there is no difference. The New Zealand provision is Section 6 of the New Zealand Bill of Rights Act 1990. It provides:
"Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall he preferred to any other meaning".
The United Kingdom Bill provides that:
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights".
The words,
"must he read and given effect",
may arguably be slightly wider than the New Zealand words, although I doubt that. What is much more important is that both provisions contain strong mandatory words. In the New Zealand provision those words are "can" and "shall"; in the United Kingdom provision, as proposed, the words are "possible" and "must". It is manifest that any dilution—I avoid the word "wrecking"—any watering down of the strength
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of the United Kingdom provision, as contained in the Bill, will strike at its very heart. I suggest that Clause 3(1) is a key provision in the proposed legislation, possibly even the most important provision.
In this country the New Zealand Bill of Rights is sometimes stigmatised as weak. That is not necessarily so when its interpretation is in judicial hands; but it would be a sad state of affairs if, when the New Zealand provision is criticised in that way and it is widely urged that the United Kingdom Bill is not strong enough, the United Kingdom Parliament were to enact a measure more timid than, or a weaker version of, the New Zealand Bill. That would be an extraordinary result of the long consideration and the long gestation which the United Kingdom Bill has undergone. I respectfully urge the Committee and the Government not to be persuaded to do anything to weaken Clause 3(1).
Lord Lester of Herne Hill: The speech made by the noble Lord, Lord Kingsland, seemed in inverse proportion to his enthusiasm for the amendment. He spoke with extraordinary brevity on an amendment of great importance.
It gives me great pleasure to follow the noble and learned Lord, Lord Cooke of Thorndon, and I should like to add a few words of agreement. If one looks across the Commonwealth, including the dependent territories, to the constitutional Bills of Rights which incorporate the European Convention into domestic law in Africa and the Caribbean, in Bermuda and in Hong Kong before and after the resumption of sovereignty of the People's Republic of China, one finds in all those jurisdictions (except New Zealand) that the courts are given aggressive power to strike down inconsistent legislation. However, the Government have chosen not to adopt that course for reasons that I understand and support as long as all that we are engaged in is giving domestic effect to the European convention rather than creating a full constitutional Bill of Rights of our own, which I hope will occur one day in my lifetime.
If one looks across the Commonwealth, one finds that the weakest form of a Bill of Rights is, as the noble and learned Lord indicated, the so-called New Zealand model. As far as I am concerned, the command to the judges as far as possible to construe legislation in conformity with convention rights is an elegant way of reconciling sovereignty with effective judicial remedies.
If one were to adopt the amendment and seek instead only a "reasonable" interpretation, we would be close to the current principles of interpretation which are already applied in an unincorporated convention since the courts already construe existing legislation on the basis that Parliament intends to conform to the convention in exercising legislative power and therefore ambiguities or manifest absurdities are to be dealt with by having recourse to the convention where reasonably possible.
My view is that the Government are right in seeking to adopt a stronger command to the judges in order to reduce the mismatch and the need for declarations of incompatibilities, for the reasons raised in the previous debate. At first sight, nothing could seem more reasonable than to say to the judges, "Adopt an

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interpretation if you reasonably can" rather than, "if you possibly can". One can imagine a jurisprudence seminar lasting several hours examining the merits of both views in terms of the three branches of our government. However, if one of the main aims of the Bill is to secure speedy and effective domestic remedies for violations of the convention and to put our courts as far as possible in the same position as the European Court of Human Rights so that recourse to the European judges is kept to the minimum, it seems to me that Clause 3(1) as it stands is the right approach. Speaking for myself, if there were to be any dilution of Clause 3(1), I would cease to be a friend of the Bill.
8.45 p.m.
The Lord Chancellor: I do not desire to be unkind to the noble Lord, Lord Kingsland, the difficulty of whose position I well understand, but it is incumbent on him to explain to the Committee what his amendment would mean rather than ask me a question about whether the Bill is a departure from ordinary principles of construction. However. I leave that and assist the Committee as best I can.
We want the courts to strive to find an interpretation of legislation which is consistent with convention rights so far as the language of the legislation allows and only in the last resort to conclude that the legislation is simply incompatible with them. I have to speculate about the purpose of the amendment, but it would appear to reflect a desire to have the courts stop some way short of that point as far as interpretation is concerned, which means that they would arrive at more, rather than fewer, conclusions that the legislation is incompatible with the convention. Speaking for myself, I cannot see what is gained by that objective. Our position is that the courts should apply the law and not make it and that they should not be dragged into the area of opinion or into judgment of a political character perhaps to a greater or lesser extent.
The word "possible" is the plainest means that we can devise for simply asking the courts to find the construction consistent with the intentions of Parliament and the wording of legislation which is nearest to the convention rights. On the other hand, "reasonable" is an evaluative criterion and the proponents of the amendment do not offer us any guidance as to what the criteria might be.
All I need say in resisting this amendment is that we want the courts to construe statutes so that they bear a meaning that is consistent with the convention whenever that is possible according to the language of the statutes but not when it is impossible to achieve that. More generally, we proceed on the basis that Parliament, at least post-ratification of the convention, must be deemed to have intended its statutes to be compatible with the convention to which the United Kingdom is bound, and that courts should hold that that deemed general intention has not been carried successfully into effect only where it is impossible to construe a statute as having that effect. This seems to me to be a sensible principle and is consistent both with Parliament's presumed intention post-ratification and with ministerial
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statements of compatibility, when they come to be made, under Clause 19 of the Bill. If this amendment were agreed to, the only intention that I could divine behind it would be to maximise rather than minimise declarations of incompatibility which would tend to bring the statute book into unnecessary disrepute. For those reasons, I am not persuaded by the amendment.
Lord Simon of Glaisdale: This clause departs from ordinary rules of construction, and to my mind does so rightly. However, I do not agree with my noble and learned friend in his objection to the very use of the word "reasonable". That word is used every day in the courts and is a perfectly well understood standard. It is the standard of the ordinary man in the street. I believe that the reason that the noble Lord, Lord Kingsland, prefers "reasonable" to "possible" is that the latter may be taken to include what is fanciful, but I do not believe that it is necessary for that purpose. Judges do not take account of fanciful considerations. I prefer "reasonably possible". I do not suppose that my noble and learned friend will for a moment consider that because it interferes with the language that is written down in tablets of stone.
As I understand it, the ordinary rule is that the courts endeavour to get at the meaning of the words that Parliament has used, not the words that Parliament meant to use. That was the Nazi rule of construction in the name of the Reich. In a statute like this, which is meant for ordinary people, first they try to find the ordinary sense of the word. That is known as the golden rule of interpretation. They do that by considering the ordinary meaning of the words in their context. Their context includes the objective of the statute. But sometimes the ordinary meaning even in context leads to something unjust, anomalous, contradictory or ambiguous. The courts then say that Parliament cannot have meant such a thing.
They look then at secondary meanings and have various rules to help them. One rule which is relevant to this clause is that they endeavour to find a secondary meaning which accords with international law. But this provision goes further. It says that they must look not only for a secondary meaning but for a possible meaning. I apprehend that the noble Lord, Lord Kingsland, fears that that may lead to a fanciful meaning. I do not believe that it would. I believe that the words will be construed by the courts as meaning "reasonably possible". Even though any change in the wording rises in the gorge of my noble and learned friend, I believe that that is how judges will interpret those words. It means that the provision goes further than the existing rules of interpretation, but so be it. My noble and learned friend has given reasons why that should be so, and I presume to agree with them.
Lord Campbell of Alloway: If this is to be interpreted by the Bench as "reasonably possible", as will obviously be the case, what are we worrying about?
Lord Kingsland: I am sorry that the noble and learned Lord fails to understand the aim of this amendment. I thought that my opening explanation had

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made it crystal clear. The intention was to find out whether or not the Bill proposed a form of interpretation by the judges which went beyond the common law rules. It is quite clear both from the reply of the noble and learned Lord and the subsequent debate that that is what is proposed. I am perfectly happy to learn that and will reflect upon it. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 17:
Page 2. leave out lines 29 to 34.
The noble and learned Lord said: I believe that my noble and learned friend dealt with this matter in answer to an earlier debate. In those circumstances, I do not intend to move the amendment.
[Amendment No.17 not moved.]
On Question, Whether Clause 3 shall stand part of the Bill?
Lord Mackay of Drumadoon: We have given notice of our intention to oppose this Question for the sole purpose of seeking from the Government an undertaking that, before the Bill reaches Report stage, the devolution Bills for Scotland and Wales are published. That will enable your Lordships to scrutinise the provisions of this Bill against the provisions of those two major constitutional Bills that we await with interest.
This evening I have listened with a measure of fascination to the noble and learned Lord the Lord Chancellor explaining the scheme of the Bill and the interpretative approach. I shall read again tomorrow with interest what he said. He observed at one stage that that may be the reason that the Bill has been welcomed by the higher judiciary. I am sorry to disappoint the noble and learned Lord the Lord Chancellor. It may be that the higher judiciary north of the Border are not quite so fulsome in their welcome of this legislation, as may be evidenced by the speech made at Second Reading by the noble and learned Lord, Lord McCluskey. One possible explanation for that is that when the Scottish judges scrutinise Acts of the Scottish parliament against the provisions of the Bill they will require to follow a different approach from that in relation to Acts of this Parliament.
For those reasons, I believe that it is essential that we have this undertaking. I anticipate no difficulty in it being given. Having heard it, I shall be happy to withdraw opposition to the Motion.
9 p.m.
The Lord Chancellor: I am not in a position to give any undertaking about the timing of the publication of the devolution Bill.
Baroness Carnegy of Lour: In view of the comment in the White Paper that the approach will be different in Scotland, it seems impossible that we should pass this legislation through this House without knowing what
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that difference is. As I understand it, there is no mention of those differences in the Bill at present. Some assurance would surely be essential to us.
Lord Campbell of Alloway: Although I am not qualified in Scots law, I am a Scot and have interests in Scotland. I wholly support the objections made by my noble friends. I beg that they be met, answered and taken seriously.
Lord Lester of Herne Hill: I do not understand the problem. It is true that the Scottish courts have so far been somewhat behind the English courts in giving domestic effect to the European Convention on Human Rights. One looks in vain in Scottish jurisprudence for as strong an interpretation of the convention as has been given by the English courts. But that is not the point of the Question, although it is fair to say that one effect of the Bill will be to ensure an even application of the convention domestically throughout the whole kingdom. I welcome that since these international obligations apply throughout the territory of the United Kingdom.
However, what I do not understand is this. When we have a devolved Scottish parliament, as was made clear during the Second Reading debate, that parliament, any Welsh senate, English regional assembly, Northern Irish parliament or other public authority exercising legislative or executive powers as a subordinate body will be bound as a public authority by the convention, both under international law and this Bill when it becomes a statute. Our courts, north and south of the Border will have the duty of ensuring full compliance by all subordinate legislative and executive bodies with the requirements of the convention. That is wholly unaffected by the devolution legislation since whatever form it takes we can be completely sure that any Scottish parliament will have to obey the international legal obligations that are binding already in international law and will become binding in domestic law under the Bill. Therefore I fail to perceive any further problem which should give rise to difficulty under Clause 3 or any other provision of the Bill.
The Lord Chancellor: Perhaps I may—
Baroness Carnegy of Lour: I am grateful to the noble and learned Lord the Lord Chancellor. As a humble layman I probably should not intervene. However, I refer the noble and learned Lord to paragraphs 2.20 and 2.21 of the White Paper. They do not describe the situation such as was described by the noble Lord, Lord Lester of Herne Hill. The Scottish parliament will be a legislative body. If the White Paper is to be followed, it will produce legislation which will become law by ensuring that it is ultra vires. Therefore it has a different status to the Westminster Parliament.
I did not dare speak at Second Reading. I had thought that this issue would be amplified by everyone, but it was not. I was anxious about it. I wish to know—I am sure many distinguished lawyers in Scotland want to know—exactly how this will be achieved in the devolution Bill.
The Lord Chancellor: I was about to come to paragraphs 2.20 and 2.21 of the White Paper when I

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gave way to the noble Baroness who, as a layman, should never be inhibited in the presence of lawyers and who, in my long experience of her, never is.
The position is this. I am relying of course on the White Paper. I am not anticipating the provisions of the Bill which is not yet published. Nor am I suggesting or implying that there will be any departure in principle by the Bill from the White Paper. As regards the issues that we are addressing in Committee this evening, in relation to the European convention the powers of the courts in Scotland will be exactly the same as the powers of the English courts. That is what one would expect. All courts, whether Scottish or English, will be required to interpret the legislation in a way which, so far as possible, is compatible with the convention. If a provision is found to be incompatible with the convention, just as the courts in England at the relevant high level will be enabled to make a declaration of incompatibility, so also will the Scots courts, except that they will call it a declarator of incompatibility—and good luck to them! In Scotland it is a declarator. Exactly the same applies in Scotland as in England so far as concerns this Bill.
We now move to an entirely separate question: whether or not the Scottish parliament, if it acts incompatibly with the European convention, will act ultra vires. One of two views would have been possible. One could equate it with the English, or Westminster, Parliament and take the view that to provide a remedy for a court-made declaration of incompatibility should be for the Scottish parliament. That is the view that has been taken for the Westminster Parliament.
However, the Scottish parliament will exercise devolved powers. It is therefore well within the entitlement of the United Kingdom Parliament, when devolving powers to Scotland, to hold that any Act of the Scottish parliament which is incompatible with the convention is ultra vires. The Scottish parliament is not sovereign in the sense that the Westminster Parliament is. As the noble Baroness knows, having read paragraph 2.21 of the White Paper, compatibility with the convention is heralded by that paragraph as a vires issue and therefore that is what she should anticipate the Bill will provide when it is published. I cannot undertake that it will be published before the Report stage of this Bill and I do not do so. There is every expectation that it will be published before the year end, on time.
Lord Meston: Does it follow from what the noble and learned Lord has been saying, without committing the Government in any way, that it is likely that the Scottish parliament, the Welsh assembly and whatever may arise in Northern Ireland will be given a procedure similar to that given by Clause 12 to effect a fast-track remedy of any incompatibility?
The Lord Chancellor: I do not desire to go further than I have in fairly responding to questions which go more to the content of the devolution Bills than they go to the issue of whether this clause shall stand part.
Lord Mackay of Drumadoon: I regret that the noble and learned Lord has not been able to give the
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undertaking that I sought. It was not an undertaking as to when the devolution Bills will be published; it was an undertaking that your Lordships' House will not be passed to the Report stage of this Bill until those major constitutional Bills have been seen.
I fully understand the legal logic of the position, as explained by the noble and learned Lord tonight, as I fully understood the logic of what was said by the noble Lord, Lord Williams of Mostyn, on Second Reading. At paragraph 2.13 of the White Paper the Government indicate that one of the reasons they have chosen such a route in relation to Acts of this Parliament is that to do otherwise would be likely on occasions to draw the judiciary into serious conflict with Parliament. As a result, there is a concern in Scotland, which is shared by lawyers and non-lawyers alike, that the man on the street will not fully understand why Scottish judges have the right to strike down Acts of the Scottish parliament but not Acts of this Parliament.
The situation will be accentuated when Scottish courts come to consider statutory provisions which have originated in this House as a section of an Act of this Parliament and have been amended by an Act of the Scottish parliament so that the statutory provision under scrutiny will be partly passed by this Parliament and partly passed by the Scottish parliament. As I understand the legal logic, the Scottish courts will have the right to strike down part of the section but no such right in relation to the other part—
Lord Lester of Herne Hill: I am grateful to the noble and learned Lord for giving way. From the way in which he is developing his argument, I am not clear whether the position of his party is that the Scottish parliament should exercise sovereignty in the same way as the Westminster Parliament so that its legislative Acts will be beyond judicial scrutiny where they breach the international obligations imposed on the United Kingdom as a whole. If that is not his position I do not follow the conclusion which he is arguing towards.
Lord Mackay of Drumadoon: The noble Lord will forgive me if, like the noble and learned Lord the Lord Chancellor, I do not anticipate what is in the devolution Bill. I wish to see the devolution Bill before this Bill moves towards the next stage of consideration in this Chamber. On any view, this Bill is a major piece of constitutional legislation. Indeed, at a dinner I attended last week I heard the noble and learned Lord, Lord Rodger of Earlsferry, saying that in his opinion this Bill was likely to have a greater impact on the Scottish courts, at least in the first few years, than the devolution Bill. If he is correct in that assessment, it is incumbent upon your Lordships to consider the matter.
The noble Lord, Lord Lester, referred to the Scottish courts as being somewhat behind their English counterparts in these matters. I venture to suggest that some people in Scotland might take the view that there was a measure of value in being slightly behind and that it would be wrong to criticise different attitudes in Scotland, particularly when Scotland is about to be faced with major constitutional legislation. On further reflection, it may be that the means by which it is

541
decided when Report stage is to take place is through the usual channels rather than seeking to test the opinion of the Committee on a matter of this importance. On that understanding, I should like to make it extremely clear that I am disappointed that the noble and learned Lord the Lord Chancellor has not been able to give the undertaking that I seek, and I beg leave to withdraw my opposition to the Question.
Lord Campbell of Alloway: In view of the recent intervention of the noble Lord, Lord Lester of Herne Hill, whatever may be the policy of the party to which I adhere, it is wholly irrelevant to the question we are discussing. It goes far beyond that. It is a matter of substance that warrants sympathetic consideration.
Clause 3 agreed to.
Clause 4 [Declaration of incompatibility]:
[Amendment No. 18 not moved.]
9.15 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 19:
Page 2, line 36, leave out ("primary").
The noble Lord said: I beg to move Amendment No. 19 and to speak to Amendment No. 21 which is grouped with it, and which I shall move formally in due course.
I shall also refer to Amendment No. 73 to Clause 10(1)(a), which will not be debated today but which is triggered by these amendments to Clause 4. At Second Reading the noble Lord, Lord Williams of Mostyn, asked my noble friend Lord Henley a fairly reasonable question as to where we stood on policy. He did not receive an entirely categoric reply and assuredly I, on the third row of these Back Benches, am not in the position to give one. However, I think that the noble Lord, Lord Williams, is entitled to know, as indeed is the noble and learned Lord the Lord Chancellor, where I personally stand before I address your Lordships on what to me is a matter of considerable consequence.
I stand behind the principle of incorporation, as referred to at page 35 of the manifesto and as expressed by the noble and learned Lord the Lord Chancellor today. That is where I stand. But the means proposed of remedial action under Clauses 10 to 12, triggered by Clause 4, are utterly rejected as a novel, unnecessary and unconstitutional fast-track procedure which any authoritarian government might wish to resolve.
It is not the intention to pre-empt discussion on these amendments to Clauses 10 to 12 or as to whether those clauses stand part. However, Amendment No. 73 to Clauses 10 to 12 lies at the heart of the discussion of these amendments which I move today. It is very short; it is in plain English and therefore obviously defective; and has been drafted by me. If your Lordships would allow me, it should read as follows:
"Page 6, line 16, leave out subsections (2) to (5) and insert—
('( )If a Minister of the Crown considers that, in order to remove incompatibility it is appropriate that legislation should be amended, he may—

(a) as regards primary legislation, introduce an amendment bill in either House of Parliament; and

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(b) as regards subordinate legislation, make a draft order containing the proposed amendments, which order shall he laid before Parliament and subject to approval by resolution of each liouse.')"

Assimilation of a convention into English law is no simple, straightforward process to be achieved by judicial declaration without resort to the parliamentary process, a process as it applies respectively to primary and secondary legislation.
I turn to the amendments. Amendment No. 19, which, again, is produced in fairly simple English, and again is probably equally effective, states "leave out ('primary')". The effect of that is quite simply, if one looks at Clause 4, to say:
"Subsection (2) applies in any proceedings in which a court determines whether a provision of legislation is compatible with one or more of the Convention rights.
That means primary or secondary legislation.
Amendment No. 21 says,
"leave out subsections (3) and (4)".
Thus, I read on:
"If the court is satisfied that the provision is incompatible with one or more of the Convention rights, it may make a declaration of that incompatibility".
Could anything be simpler? It reflects the extant position by which we deal with such matters, by convention for I do not know how long but by tradition for about 300 years; and it has not served us too badly.
I ask your Lordships to accept that those amendments to Clause 4, to which I have spoken, do not foreclose in any way on the remedial action as proposed under Clauses 10 to 12, with which I most heartily disagree. But they afford a measure of flexibility to enable amendments to Clauses 10 to 12, including the amendment in my name to which I have referred—Amendment No. 73—to be debated on their merits.
As to that, the Committee has the advice of the Select Committee at paragraphs 22 to 25 of the 6th report in context with the Henry VIII taint to the proposed procedure. The Committee may wish to consider in context with these amendments to which I speak whether it really is acceptable that, on the basis of mere judicial declaration, it is appropriate that on the say-so of a Minister of the Crown, primary legislation should be amended by order in council—because, if I am not mistaken, that is what is proposed—and that subsidiary legislation should be amended without the affirmation of both Houses of Parliament. I always keep the Labour manifesto with me; I have it on the seat here. I always read it for every debate in which I speak because it is the basis of policy. Policy is a matter for the Government and not for the Opposition. I always start with the Labour policy in the manifesto and then—I do not want to be unkind about it—see where we get to.
There was no reference in the manifesto, at page 35, as to these proposed means of implementation of the principle under Clauses 4, 10 and 12. It is a novel regime which is totally in violation of the doctrine of the separation of powers as between Parliament and the judiciary. There seems to be a sort of impression that a manifesto confers a blank cheque. However, it does not. It confers no blank cheque on our elected representatives

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to change the constitution unless such means of change, and means of implementation of the principle, have been put before the electorate, which they have not. Therefore, as regards this provision or my Amendment No. 73—which I shall have considerably more to say about when we reach it than I have today, unless we are discussing it at about this time of night—the Salisbury Convention cannot apply.
In conclusion, it is of crucial consequence to understand that these amendments to Clause 4, which affect remedial action under Clauses 10 to 12, are in a sense inconsistent with Clauses 10 to 12. The point is that whatever the position of inconsistency may be, that should not be prayed in aid by retaining Clause 4 as it stands, which inhibits or could pre-empt the discussion on subsequent amendments. Such is the spirit in which I move the amendment. I beg to move.
Lord Henley: I intervene briefly to say that like my noble friend I expect we shall have much more to say about his Amendment No. 73 and our Amendment No. 85 when we reach them at some later occasion, at, I hope, a better time of night than is the case at the moment. My noble friend makes a good point. These are important issues and they are issues that have been referred to by the Delegated Powers Scrutiny Committee. All I require from the Government when they respond is an assurance from them that, when they look at the recommendations of the Delegated Powers Scrutiny Committee, they will abide by the recommendations that the Delegated Powers Scrutiny Committee has made, just as we always abided by them when we were in government, as we were always recommended to do by noble Lords opposite when they were in opposition.
Lord Lester of Herne Hill: The Committee of course is not dealing in these amendments with the remedial powers of Parliament and the recommendations of the Delegated Powers Scrutiny Committee, with which I, respectfully, do not wholly agree. However, that is for another occasion. With these amendments the Committee is concerned solely with what the judicial branch of government has to do in relation to declarations of incompatibility, not what Parliament has to do, and how it is to do it.
I do not understand what the fuss is about. Clause 4, as it stands, empowers the courts to grant declarations of incompatibility in relation to primary legislation, which the amendment would seek to turn into any legislation, not just primary legislation. It then provides, in relation to subordinate legislation, that if the parent statute cannot be construed compatibly with the convention rights, the courts may so declare. What then happens as a consequence comes later in the Bill when Parliament seeks to put right the mismatch.
I wholly fail to understand what is wrong in the eyes of the noble Lord, Lord Campbell of Alloway, with the power of the courts to grant declarations of incompatibility where the parent statute requires subordinate legislation, and cannot be read any other way, and would breach the convention. It therefore
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seems to me that this is—if I may be forgiven the phrase—truly an emasculating amendment which would destroy one of the main purposes of the Bill. I am therefore strongly opposed to it.
9.30 p.m.
Lord Campbell of Alloway: Let us suppose that the noble Lord is right. With respect to him, I think that he has failed to understand—perhaps it is a bit late—what I was saying. Perhaps the late hour made it difficult for me to explain it. He has misconceived and totally misconstrued what I said. Let us assume that he is right. Either Clause 4 as it stands does not preclude the type of amendment and discussion to which I have referred, or it does. If it does not preclude such a discussion—I am satisfied that subsections (3) and (4) do—so be it. But at least I wish it to be understood that if, as my noble friend Lord Henley said a moment ago, we can reach a suitable accommodation at this hour in the form of an assurance, I do not have to waste the Committee's time in seeking to convince the noble Lord, Lord Lester of Herne Hill.
The Lord Chancellor: The noble Lord, Lord Campbell of Alloway, said that the position in principle of his party might not be relevant to our discussions this evening. I am, in principle, minded to agree with that, as with many other discussions in which we might engage this evening or any other evening. At one point he appeared to be protesting at the simple English of the provisions. That appears to me to be their principal virtue. I was pleased to hear of the respect in which he holds the Labour Party manifesto. I am delighted to hear that it is his vade mecum. It is, after all, an exemplar of how to win elections, and on our compliance with it we shall be judged, and are happy to be judged, at the next general election.
The position simply is that at present subordinate legislation may be struck down by the courts on the same grounds as in the case of other forms of administrative action. That is most commonly on vires grounds, but also on procedural grounds where a mandatory provision for making the subordinate legislation has not been complied with or, less commonly, on the ground that a discretion has been exercised unreasonably or irrationally.
Clause 6(1) of the Bill, by making it unlawful for a public authority to act in a manner inconsistent with the convention rights, will make it unlawful for a Minister to exercise a power to make subordinate legislation so as to make provision which is incompatible with the convention. However, subordinate legislation which is incompatible with the convention rights will thus become susceptible to challenge on vires grounds in the ordinary way. These provisions deal essentially with a situation where subordinate legislation is incompatible with the convention because that incompatibility has been dictated by the terms of parent legislation which is in itself incompatible.
The problem with Amendments Nos. 19 and 21 tabled by the noble Lord is that they would apply subsections (1) and (2) to both primary and subordinate legislation and would delete subsections (3) and (4). The effect of

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the amendments might well therefore be to allow the courts to make declarations of incompatibility in relation to subordinate legislation which is not inevitably incompatible. That power, however, is simply not required in these cases because the courts have available to them their ordinary powers to quash or set aside subordinate legislation. The power to make a declaration of incompatibility should be, and is, reserved for those cases where it is needed because the courts have no power to do anything else. The subordinate legislation is necessarily incompatible because the parent legislation causes it to be so. The rational outcome, therefore, is that both the parent and the subordinate legislation are subject to a declaration of incompatibility.
My noble friend Lord Campbell of Alloway is concerned about the fate of his Amendment No. 73. We shall have our debate on that amendment on another day. The noble Lord, Lord Henley, invites me to say that I agree here and now to abide by the recommendations of the Delegated Powers and Deregulation Committee. That is a matter that we shall address in its due time, which is not now. We are not now dealing with the remedial powers conferred upon Parliament where courts have made declarations of incompatibility. We shall have all these debates, but in their due time.
Lord Campbell of Alloway: I am grateful to the noble and learned Lord for the courteous way in which he dealt with this amendment, and for the great consideration given to it in the brief from which he was reading. He will forgive me if I could not quite take and understand everything that was said. However, I appreciate that it was prepared with great care and I am grateful for that consideration. I am also grateful to the noble and learned Lord for giving way to my noble friend Lady Carnegy so that she could make her point in the debate a moment ago.
Nobody, if they have any sense, ever thinks that they are right until they have heard all the arguments. I shall read seriously what has been said. However, I respectfully reserve the right to return to Amendment No. 73, which is near to my heart. I am worried about the fast-track procedure. I do not believe that it will work; I do not believe that it will make for good legislation: I do not believe it is the way to make legislation. I shall return to that matter at the next stage of the Bill. Meanwhile, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 20:
Page 2, line 39, leave out ("may") and insert ("shall").
The noble Lord said: Amendments Nos. 20 and 24 are simple little probing amendments. I should be grateful for a response from the Government to them. In Clause 4(2) we are told that:
"If the court is satisfied that the provision is incompatible with one or more of the Convention rights, it may make a declaration of that incompatibility".
We suggest that the "may" should be "shall" and I have used the word "shall" instead of "may" to test the Government's intentions. I ask why the court is being
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given a discretion and what are the occasions on which the court would exercise that discretion? When would it not exercise the discretion? What remedies would be available if it did not exercise the discretion, if one or other party wished to contest it? I should be grateful to hear from the noble Lord, Lord Williams, or the noble and learned Lord the Lord Chancellor the answer to my queries. I beg to move.
The Lord Chancellor: Clause 4(2) and (4) give a court, if satisfied that a provision of primary or subordinate legislation is incompatible with the convention rights, a discretion to make a declaration of incompatibility. The noble Lord, Lord Henley, says that his amendments are probing, to remove the discretion and require the courts to make a declaration in those circumstances. Why that is a subject on which those who are opposed to the principle of the Bill desire to probe is not entirely plain to me, but none the less I shall endeavour to assist in their probing.
The reason Clause 4 only confers a discretion is in part that in our domestic law a declaration is generally a discretionary remedy. A Clause 4 declaration has no operative or coercive effect and in particular does not prevent either party relying on, or the courts enforcing, the law in question unless and until changed by Parliament.
The courts may, therefore, not wish to make a declaration of incompatibility in all cases. It is possible that the facts of particular cases may suggest that legislation as it is applied in that case is incompatible with the convention, but there may be reasons peculiar to the particular case why the legislation should not be declared incompatible on the occasion when the court would be free to do that.
To assist the noble Lord, whose interest in this Bill to which he is opposed in principle is so great, I suggest that I certainly would expect courts generally to make declarations of incompatibility when they find an Act to be incompatible with the convention. However, we do not wish to deny them a discretion not to do so because of the particular circumstances of any case.
If the noble Lord asks me for examples of that, I suggest that there might be an alternative statutory appeal route which the court might think it preferable to follow, or there might be any other procedure which the court in its discretion thought the applicant should exhaust before seeking a declaration which would then put Parliament under pressure to follow a remedial route.
I cannot envisage many more particular circumstances, but it appears to me to be sensible to leave the courts a discretion, while I well recognise that in the great majority of cases courts would want to make declarations of incompatibility, where that was appropriate.
Lord Campbell of Alloway: I should like to ask, if the court were minded to make the declaration and then somebody sought leave to appeal, what would happen? A court might say: "In those circumstances I shall stay the making of a declaration. I shall not make a

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declaration. I shall further this matter in the Court of Appeal. What happens in practice if there is no application for leave to appeal to a High Court judge and subsequently an application is made followed by an appeal to the Court of Appeal? What happens then to the position of making out the declaration? How will it work out?
9.45 p.m.
The Lord Chancellor: A court strives, so far as possible, to construe a statute to be compatible. It fails. Therefore it may—not must—make a declaration of incompatibility. If it makes a declaration of incompatibility, nothing at all flows. The statute remains in full force and effect and that is so whether or not there is another route of appeal. However, the declaration of incompatibility puts some pressure on Parliament to make a remedial order.
Lord Henley: The first part of the noble and learned Lord's response was quite extraordinary. He asked why, when we were opposed to the Bill in principle, I was tabling probing amendments. I am sure that the noble and learned Lord will understand that one of our duties as the Opposition, which I dare say even the noble Lord, Lord Lester of Herne Hill, understands, is that we must table probing amendments. We must seek to find out what the Government intend with their Bill.
That becomes more important when, for example, the party of the noble Lord, Lord Lester of Herne Hill, and the Government are at one over the Bill and seek total agreement. The greater the agreement, the more need there is to probe the arguments and ensure that they are tested properly in Committee, at Report stage and at Third Reading. That is why I tabled the amendment and that is why we tabled many more amendments, some of which the noble and learned Lord will be the first to point out contradict each other. I have no qualms about that. The vital job of opposition—one in which I invite the noble Lord, Lord Lester, to join—is to table amendments to probe the intentions behind the Bill.
Lord Lester of Herne Hill: I am grateful to the noble Lord for giving way. He does not need to give lessons to me in the art of constructive opposition. I entirely agree that it is the function of the Opposition to test legislation and probe. However, does not the noble Lord agree that when one does that, one must do it based upon some notion of principle of one's own, some notion of policy of one's own, and some argument as to the mischief that one is seeking to probe?
In this instance we have the noble and learned Lord the Lord Chancellor explaining what is obvious as to the discretionary nature of declaratory relief and the need to give the courts a discretionary power. Having heard that reply to the question, which is plain and obvious, I do not understand why the constructive Opposition do not then express gratitude for the explanation and immediately withdraw the amendment.
Lord Henley: I was dealing with the first point made by the noble and learned Lord the Lord Chancellor when
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he asked why I tabled the amendment. I appreciate the noble Lord, Lord Lester, has a great deal more experience of opposition than I do; we are only just beginning to learn the art and I hope we shall not have to learn for too long.
I felt that it was important to address that point. I resent being told that there is no point in my tabling the amendment. It is thoroughly honourable to table an amendment of this sort and to ask what the Government are about. We heard an explanation from the noble and learned Lord and that explanation bears some scrutiny. The noble Lord, Lord Lester, will be pleased to hear that I shall look at the explanation with considerable—
The Lord Chancellor: Scepticism!
Lord Henley: The noble and learned Lord says "scepticism". I hope that I can look at it with considerable scepticism; one of the jobs of the Opposition is to look at amendments with scepticism. The noble and learned Lord would be worried if I did not look at it with considerable scepticism. I shall look at it in some detail and, because he advises me, with a degree of scepticism, and I shall look at the examples he gave. Those examples were the first things I wrote down. I wanted to know what examples he could give me. He gave me some examples. I give a guarantee to the noble and learned Lord that I shall look at those examples. I shall possibly come back to this at a later stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 to 24 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 25:
Page 3, leave out lines 10 to 14.
The noble Lord said: Amendment No. 25 is tabled in the spirit of a probing amendment. However, the Committee may or may not be interested to know that my thinking on this matter has now matured somewhat and it is reflected currently in Amendment No. 66, which is somewhat in advance of our proceedings tonight because it relates to Clause 10. I believe it will help if I explain the thinking behind the two amendments to enable the Lord Chancellor to respond appropriately.
We have identified a problem. It may be an imaginary one because the noble and learned Lord may either have dealt with it in another part of the Bill or have some other means of dealing with it. Let us suppose that a judge of the High Court makes a declaration of incompatibility and as a consequence of that declaration Parliament initiates the fast track procedure. Meanwhile, the losing litigant in the High Court appeals to the Court of Appeal. Just as the responsible Minister has tabled the relevant Order in Council, the Court of Appeal reverses the decision of the High Court—in other words, it decides that there is no incompatibility whatever.
That is a difficult situation for Parliament to deal with. How does it deal with it? Does it cease the order procedure; does it wait on the prospect of a further appeal to the House of Lords; or, if it has passed the

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order, does it then immediately proceed to reverse it as a result of the decision of the appeal court? That is the problem. I have sought to deal with it in Amendment No. 66 by suggesting that until the legal process is exhausted the process in Parliament should not begin.
I shall quite understand if the noble and learned Lord the Lord Chancellor says that the problem is resolved elsewhere in the Bill or in some other way. But we thought it worth tabling a probing amendment. I beg to move.
The Lord Chancellor: The noble Lord, Lord Kingsland, tells me that this is a probing amendment. I, of course, accept that. It is also a very positive amendment because what it proposes is to reserve to the House of Lords and the Judicial Committee of the Privy Council the power to make a declaration of incompatibility. It would not allow a declaration to be made by the High Court or Court of Appeal or the equivalent bodies specified in Clause 4(3). The noble Lord envisaged a state of affairs where a declaration of incompatibility is made—let us say, in the High Court—hut then the case is moving on appeal to the higher courts. In all probability, from a practical point of view, government and parliament would not do anything in a highly contentious case if it was going through the appellate process; that is, they would not move to make a remedial order. That would be the practicality of it. But Parliament at any time can pre-empt litigation and pass amending legislation whether or not declarations of incompatibility have been sought.
Treating the amendment seriously, it would have one of two possible results, both undesirable. One would be to reduce significantly the number of occasions on which a declaration of incompatibility could be made because only a small proportion of cases are heard by the High Court and the Court of Appeal and then go on to the House of Lords or the Judicial Committee of the Privy Council. For example, a declaration would not be available in the course of proceedings in the High Court for judicial review or in the course of an appeal to the Court of Appeal (Criminal Division) against a Crown Court conviction. That would seriously reduce the usefulness of the provision in Clause 4.
The other possible result would be an inevitable increase in the number of applications for leave to appeal to the House of Lords simply because that would be the only place where a declaration of incompatibility could be made. That would overload the list of the House of Lords and obviously we want to avoid that. In some cases it may well be obvious, once the High Court has given a reasoned judgment, that a provision in legislation is incompatible with the convention rights. No one in their right mind would want to go to appeal, but the amendment would require individuals to have to go all the way to the House of Lords to obtain a declaration. So these amendments seem to me to promote unnecessary litigation.
In any event, we do not have any desire to restrict the power to make a declaration in the way that this amendment suggests. The High Court, the Court of Appeal and equivalent courts, are served by senior judges who are well equipped to resolve difficult points of law.
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Very often the resolution of such matters begins and ends with them. For example, in England the judges who deal with judicial review are all permanent High Court judges drawn from the Crown Office list. We have no doubt whatsoever that they are more than competent to consider and to make declarations about the incompatibility of domestic legislation with the convention rights.
I appreciate that it is the function of opposition to make probing amendments, but it is a good Bill unless one is opposed to it in principle. One must really avoid giving the impression of looking for things to complain about.
Lord Kingsland: Perhaps I may say to the noble and learned Lord the Lord Chancellor that on this occasion he has been uncharacteristically unfair, because I coupled my remark about the probing amendment with the observation that Amendment No. 66 provided a constructive solution to the problem he posed, preserving the right of the High Court and the Court of Appeal to make a declaration of incompatibility but allowing a period to elapse so that any rights of appeal were exhausted before Parliament leapt into action.
It seems to me that if the incompatibility between the European Convention on Human Rights and any domestic statute or common law is a matter of law, then Parliament owes it to the courts to make up its mind filially whether the incompatibility exists. The courts cannot make up their mind finally to decide whether or not the incompatibility exists until the appeal procedures have been exhausted. The problem could become a particular embarrassment if halfway through Parliament's fast-track procedure the courts changed their mind about whether incompatibility existed.
With great respect, I put it to the noble and learned Lord that if he sees my opening statement in the context of Amendment No. 66, he will see that it is—"for once" he might say—a genuine attempt to provide a constructive solution to what I think is quite a serious problem. I invite the noble and learned Lord to have a further public reflection on the matter.
The Lord Chancellor: I undertake to have a further private reflection on that point.
Lord Kingsland: That is good enough for me and in those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10 p.m.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 26:
Page 3, line II, leave out ("sitting as a court of criminal appeal").
The noble and learned Lord said: As the noble and learned Lord the Lord Chancellor will be aware, this is one of a number of amendments that have been suggested by the Law Society in Scotland and have been circulated, together with appropriate briefings, to a number of noble Lords who are taking an interest in the passage of the Bill.
Amendment No. 26 seeks to explore, in the context of Clause 4(5)(d)) the reason why "declarators of incompatibility", as I understand them to be called in

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Scotland, can be made by a High Court judge sitting in his civil jurisdiction as a judge in a Court of Session, but not by the same High Court judge sitting in his criminal capacity as a judge in the High Court of Justiciary. In criminal matters, it is only when a case has reached the Court of Criminal Appeal that the option of a declarator will be open.
One can anticipate that in criminal cases issues will arise as to whether the statutory provision upon which a charge is based is compatible with Convention rights. One can envisage also arising situations when evidence is recovered in terms of a search warrant granted in terms of statutory provisions alleged to be incompatible with Convention rights. If those issues are to be raised, it will be the duty of counsel to address the High Court judge on the legal argument. He will undoubtedly form a view as to whether there is that alleged incompatibility with Convention rights.
The purpose of the amendment is to see why the judge is not to be given that option in criminal matters when, if similar issues arise in civil cases, he will have such an option. I beg to move.
The Lord Chancellor: I wonder whether what lies behind the noble and learned Lord's amendment is concern that somehow or other the statutory provision may be operating as some kind of slight on the High Court of Justiciary in Scotland. Not so. The Bill does not call in question the standing of the High Court of Justiciary in Scotland and well understands that it is of equivalent rank to the High Court in England. The intention is not to confer on judges presiding over criminal trials, whatever their rank, the power to grant declarations of incompatibility. In fact, High Court judges in England who sit in crime at, say, the Old Bailey in London or anywhere in the country, sit in the Crown Court albeit that they are High Court Judges; whereas it is well understood that when Scottish judges sit as criminal judges and in the High Court of Justiciary, they do so in a rank which, for the purposes of criminal cases, is equivalent to the rank that they occupy in the Court of Session. That is well understood.
The point is different. Put simply, the policy that the Bill reflects is that judges who preside over criminal trials should not have the power to make declarations of incompatibility. However, judges sitting in the High Court in England, not as judges sitting in the Court of Session in Scotland, in a judicial review matter would be empowered to make declarations or declarators of incompatibility. But the policy that lies behind the existing statutory provision is that we do not believe that trials should be upset, or potentially upset, by declarations of incompatibility that may go to the very foundations of the prosecution.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord for his explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 27:
Page 3, line 12, at end insert ("or the Court of the Lord Lyon or any Court of the Church of Scotland.").
The noble and learned Lord said: Amendment No. 27 touches on another Scottish peculiarity of this Bill; namely, the possible application of the provisions of the Bill first to the Court of the Lord Lyon and, secondly, to the courts of the Church of Scotland. The noble and learned Lord will be aware that the Lyon Court in Scotland deals with all matters relating to heraldry and makes rulings on genealogy, some of which are accepted by the Committee for Privileges of your Lordships' House in claims regarding Scottish peerage cases. There is a right of appeal from the Lyon Court to the Inner House of the Court of Session but, subject to that right of appeal, matters are left to Lord Lyon and his court. The issue arises as to why that court does not fall to be included in Clause 4(5).
How the provisions of this Bill will affect the courts of the Church of Scotland is a much more fundamental question. A number of questions arise which I know are of interest not only to the Law Society who have promoted this amendment but to the Church itself. Since the amendment was framed I have spoken to the Procurator to the General Assembly of the Church of Scotland. I know that he will be considering the matter very anxiously and will welcome any explanation that can be given as to the effect of these provisions on those courts and their legislative powers. I understand from Clause 21(1) that "primary legislation" which is defined in paragraph (d) as including a "Measure of the Church Assembly" is not intended to refer to the General Assembly of the Church of Scotland.
On that basis I ask the noble and learned Lord: what is the intention of the Government as to the effect of this Bill on the Church? Is it intended that the courts of the Church shall fall within the phrase "A court or tribunal" in Clause 2(2)? Is it intended that the provisions of Clause 3(1) apply to the courts of the Church who, during the course of their work, have to construe and apply primary legislation of this Parliament and any subordinate legislation that may flow from it? Is it intended that the General Assembly of the Church of Scotland as a body that passes church legislation should fall within the definition of "public authority", which is relevant to the provisions of Clause 6? More importantly perhaps, is it intended that the courts of the Church and those who have the duty to refer and present disciplinary cases to those courts should fall within the definition of public authority as set out in Clause 6(3)(c)?
These are important issues in Scotland and important issues for the Church of Scotland. Since the passing of the Church of Scotland Act 1921, it has vigorously defended before the courts in Scotland its right to have sole jurisdiction to determine all questions concerning membership and office in the Church, the constitution and membership of the courts of the Church, the mode of election of its office bearers and the defining of the boundaries of the spheres of labour of its ministers and

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other office spheres. It has resisted any right of any civil authority, including the civil courts in Scotland, to interfere with the proceedings or judgments of the Church within the sphere of its spiritual government and jurisdiction.
These are complex and important matters. It may well be that tonight is not the night to expect the noble and learned Lord to give a full response to them. But they are matters to which I anticipate that I shall wish to return at Report stage. At this time, in the absence of any Scottish lawyer on the Front Bench, an undertaking to respond in writing to the points I have raised to allow me and others to reflect on them before Report stage may make it possible to pass from the amendment without unnecessary delay. I beg to move.
Lord Lester of Herne Hill: We are in deep waters. I have no wish to plumb the depths of them tonight. However, it seems to me that so far as concerns the Lord Lyon King of Arms, it is difficult to think of a situation in which any decision he might make, whether with or without Garter King of Arms—for example, as to whether my noble friend Lord Jenkins of Hillhead is entitled to call himself "of Hillhead" as well as "in the County of Swansea" in his title, to take a working example—could possibly trigger a claim of breach of the European Convention on Human Rights.
So far as concerns Church courts, it seems to me in the first place that it is fairly clear from English public law principles—1 imagine that they would apply mutatis mutandis north of the Border—that the courts would not regard the decisions taken by the Chief Rabbi, for example, in an actual case, or the senate, or the bishops of the Catholic Church, any more than they regard visitors of universities in their visitorial jurisdiction as falling within the scope normally of judicial review as bodies that are public authorities exercising public powers. They are careful to draw the line between those kinds of decisions and decisions they habitually review. I should have thought that one would expect a similar approach to be taken to Scots public law—it is a matter of Scots law in the end—especially under the Act of Union and its guarantee of the position of the Church in Scotland and of the court system.
In any event, I find it difficult to imagine a situation in which any of those bodies would be likely to trigger breaches of the convention. I wonder whether any examples have been given by the Law Society of Scotland to show that it is a real issue rather than an abstract, theoretical one. On the face of it, it seems hard to imagine a situation arising in which this would be a problem.
The Lord Chancellor: I shall undertake to write to the noble and learned Lord, Lord Mackay of Drumadoon, as he indicated, on the detail of his questions. However, I shall try to assist him so far as I can. I am certainly familiar with the nature of the office of Lord Lyon King of Arms. I well recall in 1987, when I had the privilege of becoming a Member of your Lordships' House, that there were discussions between two "creatures" called Garter and the Lyon as to the territorial title which I might be entitled to take.
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I certainly had a vision of those two elderly gentlemen, as they then were, discussing the odd one which had come in front of them for decision.
I understand that the Court of the Lord Lyon adjudicates on grants of heraldic arms and it also carries out other functions in relation to peerages. honours and ceremonial matters. Appeals on matters of matriculation of arms go directly to the inner house of the Court of Session, and not to the outer house, and then to the House of Lords. In a sense, that signals the seniority of the position in the hierarchy of the Court of the Lord Lyon.
However, it appears to me in this way at this stage that, although appeals lie to the inner house of the Court of Session—that is, the equivalent of the Court of Appeal in England —the Lyon Court is not a court which sets precedent in any mainstream legal sense. We would not expect it to be hearing any significant number, perhaps none, of cases raising convention issues.
By contrast, the Court of Session in Scotland and the High Court in England develop mainstream law and over time they are likely to hear a significant number of cases raising convention issues. I would require a vast amount of persuasion that any case was made out for including the Court of the Lord Lyon among those empowered to make a declaration of incompatibility.
As regards the courts of the Church of Scotland, I understand that they deal primarily with internal matters such as discipline in relation to ministers. Without in any way underestimating their importance in the Church hierarchy, clearly they are not the equivalent of the courts which are expressly empowered to make a declaration under Clause 4. Even if the amendment were restricted, as it is not, to the General Assembly of the Church of Scotland—that is, the supreme court and governing body of the Church of Scotland—I would have reservations about empowering it to make declarations of incompatibility. At present, my view is that that must be for the higher secular courts, not for domestic courts and even the highest domestic court of the Church of Scotland.
10.15 p.m.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord and to the noble Lord, Lord Lester. I fully accept that, in selecting places in the remoter parts of Scotland, such as Lairg and Drumadoon, Lyon has an informal role to play in discussing matters with Garter. However, he adjudicates on more significant and important issues, including the succession to Scottish peerages. The noble Lord, Lord Selkirk of Douglas, who was recently introduced to your Lordships' House, took a case to the Lyon Court two or three years ago in order to establish that, having disclaimed the peerage himself, his son and not his cousin had the right to succeed to the peerage and to inherit certain assets which went with it. Therefore, Lyon has by no means an academic or advisory jurisdiction.
As regards Church law, I doubt whether the approach of applying English public law principles mutatis mutandis would be correct. The fundamental issue

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which this amendment seeks to raise is not so much the role of the Church courts in making such declarations, but the extent to which the provisions of this Bill, the need to respect and comply with convention rights, is a duty which will be placed on the courts of the Church and on the General Assembly of the Church in passing legislation. That is certainly the issue which I would be grateful if the noble and learned Lord would address when he comes to reply. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Right of Crown to intervene]:
[Amendment No. 28 not moved]
Lord Henley Lord Henley moved Amendment No. 29:
Page 3, line 23, leave out from ("Crown") to end of line 24.
The noble Lord said: If I may speak very briefly to Amendment No. 29, again this is a probing amendment and I hope that the noble and learned Lord the Lord Chancellor will accept that I am entitled to make probing amendments on certain occasions. On this occasion it is a very simple question that I am asking. The subsection suggests that it may be a Minister of the Crown or a person nominated by a Minister of the Crown. The question I wish to put to the noble and learned Lord is simply why one needs to have the phrase, "a person nominated". What is wrong with a Minister of the Crown? Surely the phrase "by a Minister of the Crown" includes any person to whom he might delegate such matters. I look forward with interest to hearing the response of the noble and learned Lord the Lord Chancellor.
The Lord Chancellor: It may give pleasure to the noble Lord, Lord Henley, to be reassured by me that I regard this as an entirely genuine probing amendment. Clause 5(2) entitles a Minister of the Crown or a person nominated by a Minister of the Crown to be joined as a party to the proceedings where a court is considering making a declaration of incompatibility. The effect of this amendment would be to restrict this entitlement to a Minister of the Crown. It appears to us that it will, or may in some cases, be more appropriate for a person nominated by a Minister of the Crown rather than a Minister to be joined as a party to the proceedings.
That is true, for example, in relation to private Acts or to measures of the Church Assembly or to measures of the General Synod or to regulators of public utilities or to the Director General of Fair Trading, to name but a few. In these cases the court may be considering making a declaration of incompatibility and the appropriate person to intervene may well not be the relevant government minister, but the relevant government minister may recognise that there is another more appropriate person to represent the court in this particular legislative area, and then will so nominate. So
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the object of the provision is to enable the responsible Minister to nominate a more appropriate person to assist the court in relation to particular legislation.
Lord Henley: I thank the noble and learned Lord for that response. I am not entirely sure that I fully understood what he has said and I will look very carefully at his reply. I would have thought that the words "a Minister of the Crown" would to some extent in fact embrace someone that the Minister nominated. I appreciate that this is a purely a drafting point, and the noble and learned Lord will know far more about the drafting of legislation than I do; but surely the words "a Minister of the Crown" would embrace a person acting as his agent in these matters.
The Lord Chancellor: I will write to the noble Lord. I have to confess that I had thought that the purpose of the amendment was to suggest that the true position should be that there should never be a nomination and that a Minister of the Crown should not be entitled to nominate any person other than himself. However, the noble Lord, Lord Henley, has now intimated that he sees the purpose of his amendment not so much as to preclude nomination but rather to suggest that the entitlement in the Minister of the Crown to nominate some other person is superfluous. That is a different basis from the one on which he put the matter in the first instance. However, I shall certainly write to him.
Lord Simon of Glaisdale: Will not the nominated person frequently be a Law Officer or Treasury devil? As I understand it, apart from this Bill, they can intervene and are entitled to intervene when the prerogatives of the Crown are in question. This is a wider power, is it not?
The Lord Chancellor: Yes, it is, and it is intended to be. The explanation which I first gave to the noble Lord, Lord Henley, is the explanation as I understand it. I am not sure whether the noble and learned Lord, Lord Simon of Glaisdale, suggests that what is intended by the provision in its existing form is merely to authorise representation in court of the Minister by a Law Officer or Treasury junior. In my understanding, that is not what is intended, although no doubt it would include that. It is intended that a person other than a Minister of the Crown or lawyer acting for a Minister of the Crown could be joined as a party to the proceedings if thought by the Minister of the Crown to be more appropriate because that would offer greater assistance to the court in relation to the legislation under consideration.
Lord Henley: I suspect that I am becoming even more confused than I was at the beginning. The noble and learned Lord the Lord Chancellor seemed to imply that I moved the amendment and then started to go down a different track. I hope that I was not doing that. I was merely trying to suggest the removal of a number of words on the basis that the noble and learned Lord, Lord Simon of Glaisdale, frequently suggests: the more superfluous words we can remove from legislation, the better it is.

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At this stage, I shall look extremely carefully at what the noble and learned Lord the Lord Chancellor said and at what the noble and learned Lord, Lord Simon of Glaisdale, said. I look forward also to receiving a letter from the noble and learned Lord the Lord Chancellor explaining, as he promised me, precisely his reasoning behind those matters. With that, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 30:
Page 3. line 28, at end insert—
("( ) The legal expenses incurred by a Minister of the Crown in making an application under subsection (2) and in taking part in any proceedings to which he is made a party shall be borne by the Crown.").
The noble Lord said: Again, this is another relatively simple probing amendment whereby in Clause 5 we seek an assurance from the Government that in those cases where a Minister of the Crown wishes to intervene, should there be extra costs as a result of that, the other parties in the case will not be subject to the extra costs caused by that intervention and that those costs will be met by the Crown. That is a relatively simple point. I hope that the noble and learned Lord the Lord Chancellor understands it and can give me an assurance that that will be the case.
Lord Lester of Herne Hill: I have some sympathy with this amendment. I am entirely in favour of the right of the Crown to intervene where a declaration of incompatibility is being considered. That is obviously extremely important.
I welcome also the wide range of persons who will be entitled to intervene under Clause 5(2). However, given the deterrent effect of costs orders, which was mentioned on Second Reading, it seems to me extremely important that the litigant should not be deterred by the risk that he will have to pay the costs of the intervention of the Crown in such a case.
Obviously it would normally be dealt with as a matter of discretion by the courts, but it seems to me that it would be right to put the matter beyond doubt in the way that this amendment suggests so there is no sword of Damocles hanging over the head of the litigant that if there is a Crown intervention, then there may be liability for his costs, the respondent's costs and the Crown's costs as well.
10.30 p.m.
Lord Williams of Mostyn: This is plainly a genuine probing amendment—
Noble Lords: Oh!
Lord Williams of Mostyn: As indeed all the earlier ones undoubtedly were. This is of course an important question, but we believe it is best dealt with in a different way. I shall take a moment or two to explain why. As the Committee will be aware, the courts, in particular the higher courts to which this clause is relevant, already have considerable discretion to make
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orders for costs affecting both parties and non-parties to litigation. Although there are few Members of the Committee present, quite a number of those have had fairly frequent experience of reaching a conclusion about orders for costs.
In relation to civil cases in the High Court and the Court of Appeal, Section 51(3) of the Supreme Court Act 1981 states that,
"the Court shall have full power to determine by whom and to what extent the costs are to be paid."
Various well known provisions on the award of costs in criminal cases are contained in the Prosecution of Offences Act 1985.
I suggest, with great respect, that there are good reasons why the allocation of costs should be left to the judges' discretion. The important point, among others, is that the court in question has heard the case fully; it knows all the relevant facts and it has had the benefit of submission from counsel for all parties. There are many factors which judges would properly want to take into account when assessing how costs should be allocated. This is not intended to be an exhaustive list, but these would include whether the case put forward by the party seeking the declaration had any substantive merit. Some cases are more meritorious than others and some which get to court have little merit at all except the opportunity of outdoor relief for members of the Bar. Perhaps it ought to be indoor relief for members of the Bar! We all know of litigants who insist on taking up court time when it is not reasonable or legitimate to do so. This is a matter for the judge's decision, having heard—I stress—all the facts of the case and considered all the interlocking legislative provisions.
Another question could be: was there any wider public interest in the case? That ought to be a matter affecting the judge when he decides on the costs order. He would probably want legitimately in this area to consider the financial position of the applicant. That is not, of course, a strong aspect of judicial discretion in costs orders in the generality of cases, but it might—if a particular judge thought it appropriate—be relevant in this class of case. What is the outcome of the case? Is a declaration of incompatibility or a declarator ultimately awarded? How many other members of the public might be affected? What is the ambit of the legislative component which is the subject of a declaration of incompatibility? All those are subtle questions that judges ought to balance rather than being disqualified from carrying out that balance simply by the brutality of this present amendment. It is only right and proper that I should try to protect the judiciary from brutality from any quarter, even probing brutality.
We do not think it would be reasonable or sensible to put a specific provision in the Bill that in every case the Crown should bear the cost of a Minister applying for or being joined as a party. I do not regard this response as in any sense a party political point. It seems to us much better to leave questions of discretion with the judge in question. Judges do this every day of the week and by and large, if I may say so, they do it extremely well. They are well accustomed to deciding those issues, not least, for instance, in the general analogy of which one might think: in cases of judicial review.

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My noble and learned friend the Lord Chancellor has already plainly indicated—this was reaffirmed on Second Reading—that he regards those cases as particular, because he spoke of—he repeated it earlier today in Committee—a dedicated fund that there may well be for litigation within this general area. Bearing in mind that this will be peculiar litigation, and the clear indication which my noble and learned friend has given, I should have thought that this was an occasion when one should come to the conclusion: trust the judges. They know the full facts. This place, however infinitely wise, is not necessarily possessed of a crystal ball which would be suitably accommodating for every conceivable occasion in the future.
There might well be cases many years from now when this Government are no longer in power. Behind me I hear "shame" and "oh", but I am such a naÏve country boy that I can contemplate that further in the future perhaps than Members opposite. It might well be the case that a Minister of any governmental party would want to have a matter tested, but not within the constrained straitjacket that costs would always be dictated by Act of Parliament rather than by the discretion of the judge.
We do not believe that it is reasonable or sensible to insert a specific provision in the Bill that in every case the Crown should bear the costs of the Minister. There are likely to be cases—one recognises this—where the Crown would be required to meet its own costs. For instance, a tribunal might feel that the point behind the declaration of incompatibility was so plain that the Minister in question had behaved irrationally or unreasonably in contesting the matter. It might be thought that the interest of the Crown was so marginal that the relevant Minister might perhaps never have applied to be joined, on the powers given him in the Bill.
There is a wide spectrum of possibilities which reinforces our stance. In some cases of course the Crown may be required to meet its own costs, as I said a moment or two ago. It may even be that there would be circumstances where the Crown would have to meet the costs of other parties. There might be some cases where neither would be appropriate.
We do not see any grounds for moving away from the general well-known position that the allocation of costs in individual cases is a matter for the courts to determine in the light of individual and particular circumstances. I have taken a moment or two, because, although it is late, and although it does not go to the heart of the Bill, it is an important aspect. I hope that the noble Lord will think that I have done his amendment justice in replying as fully as I can.
Lord Lester of Herne Hill: Before the Minister sits down, he has rightly indicated that this is important. because it is about access to justice and the deterrent effect of costs. I wonder whether he could deal with my point, which goes more to Crown policy than to fettering the judges' discretion. I shall give just two examples. In the past year I have known public authorities—in one
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case the Official Solicitor and in the other the Human Embryo and Fertilisation Authority—to seek costs orders against a meritorious applicant—in one case as a condition for leave to appeal to the Court of Appeal, and in the other where an amicus curiae had been appointed.
In both cases it happened that the same judge—a compassionate and commonsense judge—refused the application for costs, but the deterrent effect of the possibility of a costs order being made against those litigants was extremely severe. Had they not had confident counsel who encouraged them to take the substantial risk, they might never have been able to get their cases finally determined.
My question is: granted that the courts need to have wide discretion in deciding costs matters, will the Minister assure the Committee that, so far as concerns this Administration, the Crown would not normally seek a costs order against a litigant where there was a strongly arguable case, properly brought, on a genuine issue of public importance, because, with that assurance, the deterrent effect to which I referred would be much less? I realise that one cannot fetter the Crown and that one cannot give an absolute, unequivocal undertaking; but what I am seeking from the Minister is some indication of how the Crown sees the matter generally in terms of the deterrent effect.
Lord Williams of Mostyn: Fundamentally, all litigation is about questions of access to justice. Therefore this particular area of litigation, though extremely important, is not different in principle to any litigant wanting his or her rights upheld in the courts.
It would be quite improper for me to give any indication of Crown policy generally which would attempt to bind my colleagues for the future. After all, any government is the steward of public funds and ought not legitimately to say, "This is going to be our policy in these matters".
However, I reiterate—and I should have thought it would be a source of comfort—what the noble and learned Lord the Lord Chancellor said in his Cardiff speech and has reiterated today, and what was said by me on his authority in winding up at Second Reading; namely, of course we regard these cases as important. One signpost of that is his fund, about which he is consulting, which would be devoted entirely to this class of case. Beyond that I do not believe that any Minister ought properly and prudently to go.
Again I reiterate the remarks of my noble and learned friend the Lord Chancellor. The judges who will try this class of case will be High Court judges, well accustomed, well attuned, particularly over the past 10 years—far more attuned than many political figures—to these important questions. They will be alert and astute to the points put forward by the noble Lord, Lord Lester of Herne Hill. I believe it is better to trust the judges on these matters. They know the facts of the case and the importance of the issues. I believe that they will know

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where their duty, judicially, lies in coming to a proper, fair balance in everyone's interest in relation to applications for costs.
Lord Henley: I am grateful to the noble Lord for giving such a long and full answer. If I dare say so in the presence of quite so many members of the Bar scattered round the Chamber, and particularly in the presence of the noble Viscount, Lord Colville of Culross, at whose feet I sat as a pupil some 20 years ago, I, too, am not a great believer in outdoor relief at the Bar. However, that is a matter that others will no doubt address in due course.
I am glad that the noble Lord recognised that the amendment was purely probing. I am grateful on this occasion to receive some support from the noble Lord, Lord Lester of Herne Hill. I give an assurance to the noble Lord, Lord Carter, the Chief Whip, that I shall certainly not press this amendment to a Division at this time of night. As I indicated in my opening words,
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I think that the noble Lord, Lord Williams of Mostyn, did full justice to this amendment. Obviously, I shall want to consider that in due course and take some advice on it.
For the moment, all I can say is that I note what the noble Lord has to say. I will take that away and look at it. It is possible that I myself and the noble Lord, Lord Lester, will return to the matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Lord Carter: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at sixteen minutes before eleven o'clock.