HL Deb 18 November 1997 vol 583 cc490-527

5.3 p.m.

House again in Committee on Clause 1.

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 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 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 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 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 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 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.

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 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 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.

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 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 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 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 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. 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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. 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.

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 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 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 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


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.