HL Deb 18 November 1997 vol 583 cc466-81

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 (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 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 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 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 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 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 "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 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. 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 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 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.

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, 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) 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.

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 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.

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.

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