Human Rights Bill [H.L.] (Hansard, 29 January 1998)

HL Deb 29 January 1998 vol 585 cc379-422 379

§ 6.50 p.m.

§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)

§ Lord Simon of Glaisdale
My Lords, I am very sorry to interrupt my noble and learned friend while he is on his feet. However, I wish to draw attention to the time at which we are starting to debate again this important measure. It is ten minutes to seven o'clock in the evening. We had a full day of deliberations on the first day of the Report stage and the proceedings went on until midnight. At that time we covered 31 amendments. Even allowing for those amendments which are marked on the groupings list as having been previously debated, which is not entirely accurate, there are certainly 33 more amendments to consider this evening.
It is quite inappropriate for us to start on such deliberations at this hour. No more important measure is likely to be before your Lordships' House this Session. At the beginning of the last Parliament we repeatedly sat very late hours. However, after repeated protests, the Rippon Committee. which studied the sitting hours of the House, reported on the matter. After that, the then government loyally abided by those recommendations. But we are now right back to pre-Rippon days in the conduct of this Bill; indeed, that committee might just as well not have reported. I endeavour to protest at our being asked to consider the Bill in this way.

§ The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)
My Lords, one day was originally set down for consideration of the 380 Bill on Report. It was anticipated that that would be quite sufficient. As it happens, a number of us present in the Chamber today remember that our discussions and deliberations on Report took rather a long time and, therefore, a second day was provided by agreement between the usual channels. We do not believe it to be unreasonable to get on with the Bill. Indeed, many of the issues, if not flogged to death, have at least been carefully examined on a number of previous occasions. As I said, we do not believe it to be unreasonable to get on with the proceedings at ten minutes to seven on a bright evening.

§ Lord Mackay of Drumadoon
My Lords, I support the sentiments behind the noble and learned Lord's submission. Undoubtedly constitutional Bills of this nature bring forward unexpected problems of considerable difficulty; indeed, we encountered that situation on the first day of the Report stage. Therefore, while I truly appreciate the Minister's wish to get on with the Bill, I hope that he will take to heart the observations that have been made.
I anticipate that many unexpected problems may arise, which will take much longer to debate than originally envisaged, during the course of our consideration of other Bills which come before your Lordships' House this Session. I am sure we all agree that it is thoroughly undesirable to be discussing at midnight constitutional reform of such importance, as was the case on the previous day of the Report stage.

§ Lord Ackner
My Lords, I believe that the Third Reading of the Bill is scheduled for 5th February. Moreover, on the same day, the Third Reading of the Greater London Authority (Referendum) Bill will also take place. On that occasion, could we not come before the latter Bill on the Order Paper so that we can get a clear start?

§ Lord Henley
My Lords, perhaps I may also intervene from these Benches. In response to the noble and learned Lord, Lord Ackner, my understanding—and this is subject to discussions between the usual channels—is that it is the intention next week that this Bill will be dealt with before the Greater London Authority (Referendum) Bill, which preceded us today.

§ Lord Lester of Herne Hill
My Lords, obviously we could spend a great deal of time discussing how much time we should spend on the legislation and complaining about the lateness of the hour. However, that would not be profitable. I understand the Government's problems in handling their business and, indeed, I have sympathy with them in that respect.
It is because the Report stage took so long last time that we are here again this evening. It was because the House was so thinly attended on the last occasion—as, indeed, is the case this evening—that I did not move an important amendment on proceedings, but indicated that I would do so on Third Reading. It is for the same reason that I have given advance notice that I shall not 381 be moving an important amendment tonight about the human rights commissioner but, again, will do so on Third Reading.
I realise that Third Reading is not normally the occasion to do so, but it seemed to me to be the best way of reconciling the need to get business through with the need for a full debate on important issues. I believe that to be a satisfactory outcome, even though I realise that the noble and learned Lord, Lord Simon of Glaisdale, will continue to be unhappy about the situation for quite understandable reasons.

§ Lord Williams of Mostyn
My Lords, I shall respond as briefly as I can. I take the point made by the noble Lord, Lord Lester; namely, that the longer we spend discussing the timetable the longer the time taken will in fact be. I take the point made by the noble Lord, Lord Henley, and also that made by the noble and learned Lord, Lord Ackner. Such matters will be discussed by the usual channels. If we were by some happy chance to go before the London matter next Thursday 5th February—my birthday—then I would be able to bear it with some fortitude.
On Question, Motion agreed to.
Clause 7 [Proceedings]:
[Amendment No. 32 not moved.]
Clause 8 [Judicial remedies]:

§ Lord Ackner moved Amendment No. 33: Page 5, line 11. at end insert ("to give full and effective protection to Convention rights").

§ The noble and learned Lord said: My Lords, in the immortal words of my old friend the noble Lord, Lord Campbell of Alloway, who I am sorry to see is not in his place in the Chamber, I can deal with my amendment very shortly. I do not do so because of the way that it has been referred to in the groupings list today, because it is quite wrongly described as already having been debated. I had a discussion with the usual channels about the matter well before lunch and persuaded them that it was wrong. I have confirmed with the noble Lord, Lord Williams, that my noble and learned friend the Lord Chancellor has been informed that this amendment will be moved; indeed, it had not been moved previously.

§ Your Lordships will recall earlier attempts to amend Clause 1 so as to make specific reference to Article 13 of the convention which reads: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity".

§ Your Lordships will also recall that, when the matter was raised originally in Committee on 18th November, my noble and learned friend the Lord Chancellor said that the provision gives effect, to Article 13 by establishing a scheme under which convention rights can he raised before our domestic courts. To that end, remedies are provided in Clause 8. If the concern is to ensure that the Bill provides an exhaustive code of remedies for those whose convention rights have been violated, we believe that Clause 8 already achieves that and that nothing further is needed".—[Official Report. 18/11/97; col. 475.]

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§ The noble and learned Lord the Lord Chancellor then added, also at col. 475, that if Article 13 were mentioned, The courts would be hound to ask themselves what was intended beyond the existing scheme of remedies set out in the Bill".

§ When the matter came before your Lordships on 19th January at Report stage my noble and learned friend the Lord Chancellor said, Our objection is that the amendments add nothing to the scheme in the Bill. On the contrary, the only effect they could have is to disturb the carefully crafted structure of the Bill in some unforeseen way. I do not know what the courts would make of amendments which, on the face of it, contain nothing new. I therefore suggest that the amendments would either cause confusion or uncertainty".— [Official Report, 19/1/98; col. 1266.]

§ One thing which my amendment will not do is to cause confusion or uncertainty because in order to make assurance doubly sure it adds the words of the amendment to Clause 8 of the Bill. It therefore does no violence of any kind to the Bill as it stands. It makes it perfectly clear that all one is seeking to do is to ensure that the words, to give full and effective protection to Convention rights get rid of any doubt as to the overall cover of the Bill.

§ I appreciate that my noble and learned friend the Lord Chancellor takes the view that this is unnecessary and that it is surplusage. I refer him to what the noble and learned Lord, Lord Simon, said when the matter was before your Lordships on Report on 19th January, in particular at cols. 1267 and 1268 of the Official Report; namely, that there are occasions when additions put in for the abundance of caution pay off. He referred to the Judicature Act of 1875 which was concerned with divergences between rules of equity and rules of common law, and how a clause in that measure managed to cope with an unexpected problem which arose. The noble and learned Lord on that occasion also quoted Cromwell: I beseech you, in the bowels of Christ, [to consider that] you may be mistaken".

§ That is all this comes to. I seek my noble and learned friend's generosity in making sure, out of the abundance of caution, that the anxieties which have been expressed at the omission of any reference to Article 13 can be put happily to rest. That cannot cause any ambiguity or give rise to any difficulty or confusion. It is as short and as simple as that. I beg to move.

§ 7 p.m.

§ Lord Lester of Herne Hill
My Lords, it may be for your Lordships' convenience if I try to summarise the story so far, supplementing the account explained so clearly by the noble and learned Lord, Lord Ackner. The starting point is that the White Paper indicated, in the Prime Minister's preface and in the body of the White Paper, that the purpose of the Bill was to incorporate the convention into domestic law and to create effective remedies for breaches of convention rights. The problem was that when the Bill was drafted neither the Long Title nor any provision of the Bill stated that purpose, so there was a mismatch from the start between the White Paper and the text of the Bill.
383 A further problem was, and is, that, on the face of it, Clause 1(1)(a) gives the impression that Parliament is innumerate and illiterate in terms of the law of the convention by inviting us to count from two to 12 and 12 to 14, omitting Article 13 altogether, even though we know that Article 13 creates a substantive right which has to be complied with by all the public authorities of the United Kingdom, including the courts. The problem is then aggravated by the fact that although. Clause 8—with which this amendment is concerned—gives ample powers to the court to grant just and appropriate remedies there is still no link with Article 13 of the convention. Various attempts have been made to create that link. Notwithstanding the assurances that the noble and learned Lord the Lord Chancellor has given in previous debates which are, as it were, Pepper v. Hart assurances, it is essential that our courts should be able to continue to do what they have already been doing in developing the common law and in interpreting statutory discretion.
As I explained earlier, in libel cases the Court of Appeal has at least twice referred to Article 13, and the Appellate Committee of your Lordships' House has done the same in ex parte Khan. It would be most unfortunate if the deliberate exclusion of Article 13 in Clause 1(1)(a) were to be construed as intended to cut down the power of our courts to have regard to Article 13 as well as to the other substantive provisions of the convention. That is why it seems to me that the noble and learned Lord, Lord Ackner, with his skill and elegance has, as always, produced a formula which, without mentioning Article 13, creates a necessary link between the domestic obligation to give a remedy and the convention obligation that there should be an effective remedy. I cannot see that that can do any harm at all, and nor did the noble and learned Lord the Lord Chancellor indicate that it would on the previous occasion that this was discussed. It would clear up once and for all the problem I have attempted to summarise. For that reason I support the amendment.

§ Lord Simon of Glaisdale
My Lords, I, too, support the amendment. I still hanker after the inclusion of Article 13 because I think its omission might well have a disproportionate effect on a court of interpretation. They might well say, "Why is Article 13 exceptionally not specified in the schedule?" It is rather like when a child loses its milk teeth. Until the tooth is replaced, every eye is drawn to the gap. That might well be the effect of the lacuna.
However, my noble and learned friend Lord Ackner has skilfully gone a long way to mitigating any adverse effect by his amendment. I wish to add only this. Between the two days of Report, there has been an important occurrence. A leading constitutional lawyer—none is more eminent than Mr. Geoffrey Marshall—has written to The Times and drawn attention to two matters in which the Bill is defective. One is the absence of Article 13; and the other is the refusal to reinforce and to nominate in the Bill the doctrine of implied repeal, both of which matters were canvassed on the last occasion. Mr. Marshall seemed to think that those 384 matters can now be put right only when the Bill goes to another place. He may be right on that. He is probably right as regards implied repeal because I do not think that I shall be entitled to put that down for discussion again at Third Reading.
However, if my noble and learned friend's amendment is accepted, the matter may be reconsidered at Third Reading. What he proposes can only do good: it cannot possibly do any harm. But it may be thought preferable to go back expressly to Article 13 in view of what I have just said.
In view of what Mr. Marshall wrote and what has been said by the two noble Lords who preceded me, I hope that the amendment may be accepted.

§ The Lord Chancellor
My Lords, we have already had a full argument on this proposed amendment. Clause 8(1) provides that, In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its jurisdiction as it considers just and appropriate". In my respectful view, that gives the courts the amplest discretion. I am not persuaded by an argument which proposes an amendment on the basis that it may well be unnecessary but where no specific argument is advanced as to how it may do some positive good. In my view that is likely to be productive only of uncertainty. I therefore oppose the amendment.

§ 7.15 p.m.

§ Lord Ackner
My Lords, I do not know from where my noble and learned friend the Lord Chancellor gets the proposition that we have already had full argument on this issue. We have had no such thing. At Committee stage, when the Lord Chancellor criticised the suggestion that Article 13 should be referred to, I intervened before he sat down and said that perhaps the whole problem may be solved by adding at the end of Clause 8(1) the very words that are the subject matter of the amendment. Your Lordships said that if one wishes to do that one raises it on Report. That is exactly what I have done. I have raised it on Report. The matter was not referred to by way of any argument when we were on Report a few days ago. I reserved the matter specifically saying that it was a matter which I would move at a later stage.
It rather looks as though my submissions have fallen on totally deaf ears because your Lordships thought that it had already been dealt with. It had not. If I am wrong, I shall be happily interrupted to be corrected. The matter has not been argued before.

§ The Lord Chancellor
My Lords, I entirely accept what the noble and learned Lord says. The amendment was originally grouped with Amendments Nos. 3, 5 and 70, the purpose of which was to include Article 13 in the convention rights. Your Lordships debated that set of amendments on 19th January when I explained the Government's position: that the Bill provides a coherent and effective scheme for providing remedies and that nothing was to be gained by adding Article 13 to the list of convention rights.
385 All I was saying was that in principle we have effectively debated these points. But there is nothing inappropriate, and the noble and learned Lord is well within his entitlement, in putting down the amendment for consideration now. I entirely appreciate that the amendment is to insert into Clause 8(1) a statement that the remedies granted by the courts are to be such as to give full and effective protection to convention rights.
The key point is this. Given the wealth of remedies available to a court under Clause 8(1), nothing further is needed, in the Government's judgment. We are confident that Clause 8 will allow the courts to do full justice in the cases that come before them. I repeat that it is noteworthy that on the several occasions that we have now debated this general issue, no one has been able to point to any particular deficiency within Clause 8(1).

§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor. Will he deal with the point I raised: that our courts have already expressly had regard to Article 13 of the convention?

§ Lord Haskel
My Lords, perhaps I may remind noble Lords of the convention that once the mover of the Motion has spoken at Report any further interruptions are purely on matters of detail.

§ Lord Ackner
My Lords, I am just finishing my reply because I had invited the noble and learned Lord to interrupt me if I had got the position wrong.
I clearly have not. I said in terms on the last occasion that I should be moving the matter at a later stage notwithstanding the groupings. The groupings were not accepted by me. In fact I had asked, but it was overlooked, that the amendment be grouped separately. The matter has not been argued.
The Lord Chancellor has not answered the point I seek to make. It is that whereas the amendments to Clause I were, so he said, amendments which could cause confusion or uncertainty, what I propose now would do no such thing. It would make clarity doubly clear. Therefore the objection to the amendments to Clause 1 has absolutely no relevance to the amendments I put forward. That is why I had hoped that that particular point would be addressed; it cannot be in the same category as the amendments to Clause 1. That is why I did not move this amendment with those amendments.
I do not know whether my noble and learned friend the Lord Chancellor would like to deal with that point. But if he does not, then it merely means that my argument has not been properly addressed. I cannot accuse the noble and learned Lord the Lord Chancellor of a lack of generosity of spirit. When it comes to later amendments concerning judicial pensions, he has been very generous. All I can say is that I am sorry that that admirable feature of his character has not shone forth at an early stage in this particular debate. I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

386

§ Lord Mackay of Drumadoon moved Amendment No. 34: Page 5, line 26, after ("account") insert (", but need not he limited by,").

§ The noble and learned Lord said: My Lords, this amendment raises an issue in relation to Clause 8(4) of the Bill. It arises out of a matter suggested to me by the Law Society of Scotland. The Society also gave notice of the matter to the Government. The amendment seeks to probe the issue as to whether or not, in exercising the power to award damages under Clause 8(4), a court in the United Kingdom would in any sense be limited to the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

§ Those of us who have from time to time considered and been involved in cases involving the European Court of Human Rights sometimes take the view that, in instances where compensation is awarded, the awards are of a fairly modest nature, and had the applicant been able to prosecute a right in the British courts under the common law for some breach of statute for a similar wrong or injury, the damages that he or she would have received, if successful, would in all probability have been somewhat larger—in some instances significantly larger—than the levels of compensation assessed by the European Court of Human Rights.

§ I fully accept that the words in subsection (4), "must take into account", could be construed as being such that the courts need not be limited by the principles applied. It is to probe and seek the Government's assurance that no such limitation is intended that I move this amendment. I beg to move.

§ Lord Lester of Herne Hill
My Lords, if I thought that the Government's intention was that the words, "must take into account", in Clause 8(4) were to be given a different meaning from the words, "must take into account", in Clause 2(1) in relation to the Strasbourg jurisprudence, I would certainly support this amendment. It would be quite wrong to fetter or clog the discretion of the English, Scottish and Northern Ireland courts in deciding upon the appropriate principles for the award of compensation for what is really to be a new form of public law tort; that is to say, a breach by a public authority of a convention right. It would be absurd, if, for example, domestic law concepts such as that of exemplary damages in an appropriate case, which is not a concept that has been developed by the European court, were to be excluded. It would be absurd if our courts were not able, in developing the common law, to stick to our own principles.
On the other hand, I support the way in which the clause as it stands is put. I look forward eagerly to the Minister's explanations. As I understand it, what is envisaged is that guidance should be given as to the case law of the European Court of Human Rights in relation to what is now called Article 41 of the convention, previously Article 50, in giving just satisfaction.
What I like about that case law is that it is fairly mean. In a routine case, the Strasbourg court does not award massive damages. It is quite right that the courts 387 should be guided by that mean spirit. This Bill could be destroyed in practice if there were excessive damages awards. Therefore, it seems to me to be well calibrated. The courts "must take into account" that austere case law, but they are not restricted in a gross case where, for example, a person under colour of law deliberately and wickedly tortures somebody or inflicts upon him or her some other barbaric practice in breach of Convention rights and in a context where the Strasbourg court may not even have dealt with such a case. In that case, it is quite right that our courts should be free to use their well-known principles for the award of damages in common law cases. If my understanding is correct, then I should be opposed to this amendment.

Lord Renton
My Lords, it is very important to note in discussing this amendment, and indeed any matter to do with Clause 8, that we are not dealing with any conflict of law between European Convention law and our own substantive law, whether primary or secondary. That matter was dealt with under Clause 4, under the rubric, "Declaration of incompatibility". Here, we are dealing simply with the power of the court to award damages. In that connection we should bear in mind not only the remarks of my noble and learned friend Lord Mackay of Drumadoon, but also the comments of the noble Lord, Lord Lester of Herne Hill, in amplifying the argument.
A factor which neither of them mentioned, although they may have had it in mind, is this. There is such a thing as inflation, or at least changes in the value of money. In awarding damages, our courts would be neglecting their duty if they failed to bear that point in mind when fixing an amount of damages. I therefore see this amendment as doing no harm; indeed, it is essential.

§ The Lord Chancellor
My Lords, I find this amendment somewhat surprising. In connection with Clause 2, the noble Lord, Lord Kingsland, put down an amendment which stated that in determining a question which has arisen under this Bill, a court, shall he hound by any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. The words he sought to replace—"must take into account"—were apparently not strong enough for the noble Lord's liking.
But in Clause 8, the wording of subsection (4) is consistent with that used in Clause 2; namely, that in determining whether to award damages, or the amount of an award, a court "must take into account" the principles applied by the European Court of Human Rights in relation to the award of compensation. On this occasion, the noble and learned Lord, Lord Mackay of Drumadoon, would appear to find that phrase too restrictive, and that the courts are to be enjoined not to be limited by the principles of the European Court.
I have no hesitation in advising your Lordships that the similar expressions in two parts of the Bill will bear the same meaning. The intention of Clause 8 is that people should, so far as is possible, receive the same remedies from our domestic courts—albeit with much less delay—as they would receive if the case went to 388 Strasbourg. For that to happen, it is necessary that our courts should take into account the principles adopted by the European Court of Human Rights. I see no need for the added gloss that they "need not be limited by" such principles. As I explained when talking to the noble Lord, Lord Kingsland's proposed amendment to Clause 2, the phrase, "take into account", allows the courts to use their discretion where appropriate in applying Strasbourg jurisprudence generally to cases before them. It would be unnecessary and confusing to have a different phrase in Clause 8 from that in Clause 2. It would suggest that the courts were to apply a different test in questions of damages, which is contrary to our intentions. In view of what I have said, I ask the noble and learned Lord to consider withdrawing the amendment.

§ Lord Mackay of Drumadoon
My Lords, I am grateful to the noble and learned Lord for his explanation. In tabling as in moving my amendment, I was indeed conscious of the terms of Clause 2 and the extensive debate we had about that matter at an earlier stage of the Bill. Nevertheless, it had struck others, as well as myself, that the matter was worth clarifying. The answer given certainly does that.
Quite how that squares with the point made by the noble Lord, Lord Lester, about exemplary damages I am less certain, particularly in view of the absence of such damages within the powers of the Scottish courts. They will be required to apply the provisions of Clause 8(4). So yet again we have an instance of how the Bill, which seeks to bring rights home to the United Kingdom, will end up having different results in different jurisdictions within the United Kingdom. However, I am grateful for the answer I have received and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ 7.30 p.m.

§ Clause 9 [Acts of courts and tribunals]:

§ The Lord Chancellor moved Amendment No. 35: Page 5. line 33, leave out from first ("of") to end of line 35 and insert ("a judicial act may he brought only—

(a) by exercising a right of appeal;
(b) on an application (in Scotland a petition) for judicial review; or
(c) in such other forum as may he prescribed by rules.").

§ The noble and learned Lord said: My Lords, in speaking to government Amendments Nos. 35 and 36, it may be helpful if I also speak to Amendment No. 37 by the noble Lord, Lord Meston.

§ I am sorry that the noble Lord has been put to the trouble of tabling again on Report the amendment that he moved in Committee. We reached his amendment rather late on the second day of Committee and therefore had less time for discussion than I had hoped.

§ The noble Lord will now be aware that the Government have themselves tabled an amendment to this clause to provide an enforceable right to compensation for breaches of Article 5 by judicial acts. The noble Lord will see that this is a rather more 389 detailed amendment than his own, but I hope that he will accept that it makes the same provision as that which he is concerned to ensure.

§ May I explain the overall purpose and the detailed provisions of this amendment, because they are of some importance. It has two purposes. The first is to provide an enforceable right to compensation for breaches of Article 5 by judicial acts. The second is to preserve judicial immunity generally for judicial acts undertaken by judges, magistrates, tribunal members and court staff performing judicial functions or acting on behalf of the judge or on the instructions of the judge.

§ Noble Lords will remember that at Committee stage the noble Lord, Lord Meston, moved an amendment, identical to that which he has now put down on Report, to make explicit provision for the requirement of Article 5(5) that everyone who has been the victim of arrest or detention in contravention of the provisions of Article 5 shall have an enforceable right to compensation.

§ I indicated at Committee stage that the Government were alive to the need to make appropriate provision for the Article 5(5) requirement and that we were considering how best to give effect to this obligation in relation to judicial acts of courts and tribunals. The effect of Clauses 6, 7 and 8 of the Bill is that there is an enforceable right to compensation in relation to public authorities generally. But special provisions are needed in relation to judicial acts of courts and tribunals.

§ Where a complaint is made that Article 5 has been breached as a result of a judicial act or omission it will be necessary first to establish whether the judicial act complained of was unlawful, then to rule on whether the aggrieved person is entitled to compensation under Article 5(5) and then to determine the amount of compensation. In determining those questions the court will take into account the Strasbourg jurisprudence on unlawful detention and on the award of damages, as required by Clauses 2 and 8 of the Bill.

§ Subsections (1) and (2) of the clause require that proceedings under Section 7(1)(a) in respect of a judicial act may be brought in three ways: by exercising a right of appeal; on an application for judicial review (or in Scotland a petition for judicial review) or in such other forum as may be prescribed by rules.

§ A finding that an inferior court has acted unlawfully will most commonly be reached in England and Wales by way of appeal to the Court of Appeal or the Divisional Court, or by an application by way of judicial review to the High Court. The higher court will then be able to reach a decision of unlawfulness and make an award of damages. Clause 8(2) will enable the courts, which already have power to award damages, to do so in proceedings under this Bill. However, in criminal proceedings in Scotland, if the High Court on appeal finds that some act of an inferior court has contravened the complainant's rights under Article 5(5) it would have no power to award damages. It would therefore be necessary for the amount of damages to be determined by the civil courts. The clause therefore enables proceedings to be brought in such other forum as may be prescribed by rules. The Court of Appeal in England, as a single entity, has the power to award damages. 390 Rules will provide as to whether the Criminal or Civil Division should hear compensation claims. Again, Clauses 9(1) and 7(2) provide the necessary powers to make rules.

§ Subsection (2) underlines that no new right to judicial review is being created. For example, a challenge to a decision of the Crown Court in a matter relating to a trial on indictment will be made on appeal since there cannot be judicial review in respect of trials on indictment.

§ Subsection (3) has two purposes. It restates the current position under common law and statutory rules that the Crown is not liable in respect of judicial acts and that judges and magistrates acting within their jurisdiction, or outside their jurisdiction if doing so in good faith, are immune from proceedings for damages. But it also makes provision that damages may be awarded to compensate a person to the extent required by Article 5(5) of the Convention in respect of a judicial act of a court.

§ The noble Lord, Lord Meston, has written me a most helpful letter in which he has indicated that he himself had thought of making clear in Clause 9 that existing personal immunity of judges and magistrates was preserved, but he had decided that it was probably unnecessary to do so. It is helpful to know that he had in mind the second purpose of the government amendment—that is, preserving judicial immunity—as well as the first of providing an enforceable right to compensation under Article 5(5).

§ I believe that now he has seen the draft of the Government's amendment to this clause, he will agree that it is helpful to spell out that judicial immunity is preserved, given the way the clause is now drafted.

§ Subsection (4) provides that an award of damages permitted by subsection (3) should be made against the Crown rather than against the judge personally. It also ensures that whichever Minister is responsible for the court or tribunal concerned is joined to the proceedings if not already a party. This is similar in effect to the provision of Clause 5 which provides that where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice and, on an application to the court, to be joined as the party to the proceedings. In practice, the Lord Chancellor will be the appropriate person in many cases concerning judges and magistrates, in England and Wales. In Scotland, the relevant Minister will usually be the Secretary of State. But there may be cases where the breach of the Article 5 provisions arises from a wholly proper judicial decision required by inconsistent legislation, primary or secondary legislation. In this case it would be helpful for the Minister responsible for the legislation to be joined. "Appropriate person" therefore allows me, or the Secretary of State for Scotland to nominate a person or government department.

§ The definitions in subsection (6) make it clear that judicial acts include acts undertaken by court officers performing judicial functions or acting on behalf of the judge or on the instructions of the judge.

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§ At present, this clause refers both to a "judicial act", in subsection (1) and to a "judicial act of a court" in subsection (3). This may give rise to confusion and the Government will therefore be moving a minor amendment at Third Reading to clarify this small point.

§ I said in Committee that the amendment proposed by the noble Lord, Lord Meston, might be the best way of providing compensation for breaches of Article 5 by judicial acts. I warned the Committee then that the complex and delicate issues of judicial immunity and Crown liability for judicial decisions required consideration before an amendment was made to this clause. The government amendments before the House seek to deal with that situation. They go rather further than the noble Lord's amendment. I hope that he will therefore consider withdrawing his amendment and that the House will agree that the government amendments achieve what is required. I beg to move.

§ Lord Meston
My Lords, I am grateful to the noble and learned Lord for swiftly and fully meeting the point raised in the amendment moved at Committee stage. I shall not move Amendment No. 37. I am also grateful to the noble and learned Lord for explaining, in answer to the only question that I would have asked on Amendment No. 35, what is meant by the phrase. such other forum as may be prescribed by rules". The amendments are most welcome.

§ Lord Mackay of Drumadoon
My Lords, from these Benches I offer no objection to Amendments Nos. 35 and 36, which address fully the point raised previously by the noble Lord, Lord Meston. With an element of diffidence perhaps I can ask one question. Is it proposed that these amendments will apply to the courts of the Church, about which we have had certain discussions during the passage of the Bill? If so, looking at the terms of subsection (5), set out in Amendment No. 36, I doubt that one could say, the Minister responsible for the court concerned".

§ Lord Lester of Herne Hill
My Lords, first, I congratulate my noble friend Lord Meston on introducing this matter at Committee stage and the noble and learned Lord the Lord Chancellor and his colleagues on what I regard as an appropriate and necessary amendment.
The amendments represent a significant change in existing law. As I understand it, until the Courts and Legal Services Act 1990 came into force it was possible for someone who had been unlawfully detained by order of a magistrates' court to take civil proceedings against the relevant Bench of magistrates. In cases in which imprisonment was unlawful, compensation could be paid.
Sections 44 and 45 of the 1990 Act introduced a requirement for the plaintiff to allege and prove malice before compensation could be ordered. That in effect rendered such litigation impossible and ended the right to compensation for unlawful detention by a magistrates' court. The Strasbourg case law is that 392 a requirement to prove malice as a precondition to compensation does not conform to Article 5(5) of the Convention. The amendment deals with that problem extremely well. It extends to a judicial act of a court done in good faith so that damages can be awarded to compensate a person to the extent required by Article 5(5). It impliedly repeals Sections 44 and 45 of the Courts and Legal Services Act. Perhaps the noble and learned Lord could think a little further about whether one needs to have something dealing expressly with that. It deals skilfully with the problems of judicial immunity and Crown liability, as the Lord Chancellor indicated.

§ Lord Simon of Glaisdale
My Lords, perhaps I can raise a small drafting point on subsection (4) of the amendment. It says, An award of damages permitted by subsection (3) is to be made against the Crown", and so forth. Does not that mean "may" be made against the Crown? Is not that the normal manner of drafting? Matters of drafting are not positively debated across the Floor of your Lordships' Chamber, but perhaps my noble and learned friend will consider that point with the draftsmen, if he thinks it worth considering.

Viscount Colville of Culross
My Lords, I am relieved to have it put clearly in the Bill that the judiciary is immune. In relation to what the noble Lord, Lord Lester, said, one can make a mistake in the Crown Court as well as in the magistrates' court and this is an admirable arrangement for some of us.
The only question I would ask the noble and learned Lord is this. Now that the explanatory memorandum has disappeared, I cannot check whether there is to be a financial provision introduced by another place in order to pay for all this. It will come out of the public pocket, out of the Treasury, and I imagine that it will be necessary to bring forward an amendment which we cannot introduce in this House, but which may be introduced in another place.

§ 7.45 p.m.

§ The Lord Chancellor
My Lords, I am disinclined to be drawn into argument about the Church courts. The short answer is that if the noble and learned Lord, Lord Mackay of Drumadoon, had in mind the Church of Scotland or indeed the Church of England, I am not aware that they make any decisions that could breach Article 5. I have difficulty therefore in understanding how the question of compensation in relation to Article 5(5) could arise.
I note what was said by the noble Lord. Lord Lester, in relation to the interaction of these provisions by way of an amendment with pre-existing civil and statute law. However, having regard to the position of the hands of the clock, it would not be wise for me to embark extempore upon that. However, I undertake to write to the noble Lord.
The noble and learned Lord, Lord Simon of Glaisdale, invites us to consider subsection (4) from a specific standpoint. I am happy to do so. I understand the 393 significance of the provision to be no more than to emphasise that the liability is in the Crown and not the judge as an individual. I shall look at that. I do not believe that any specific financial provision needs to be made for liabilities that may arise at law against government departments.
On Question, amendment agreed to.

§ The Lord Chancellor moved Amendment No. 36: Page 5, line 38, leave out subsections (3) to (5) and insert— ("(3) In proceedings under this Act in respect of a judicial act of a court done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention. (4) An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined. (5) In this section— appropriate person" means the Minister responsible for the court concerned, or a person or government department nominated by him; court" includes a tribunal; judge" includes a member of a tribunal, a justice of the peace and a clerk or other officer entitled to exercise the jurisdiction of a court; judicial act" includes an act done on the instructions, or on behalf, of a judge; rules" has the same meaning as in section 7(8).").

§ On Question, amendment agreed to.

§ [Amendments Nos. 37 and 38 not moved.]

§ Clause 10 [Power to take remedial action]:

§ Lord Williams of Mostyn moved Amendment No. 39: Page 6, line 8, leave out ("one or more of the Convention rights") and insert ("a Convention right").

§ The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

§ On Question, amendment agreed to.

§ Lord Williams of Mostyn moved Amendment No. 40: Page 6, line 8, after ("rights") insert ("and, if an appeal lies—

(i) all persons who may appeal have stated that they do not intend to do so;
(ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or
(iii) an appeal brought within that time has been determined or abandoned").

§ The noble Lord said: My Lords, in moving Amendment No. 40, it may be convenient for me to speak also to Amendments Nos. 41 to 43. Amendments Nos. 40 and 42 place limits on the power of a Minister to make a remedial order under Clause 10 following a declaration of Convention incompatibility by a court. Both are specific responses to concerns expressed by your Lordships in Committee.

§ Amendment No. 40 prevents a remedial order being made following a declaration of incompatibility if there is any prospect of an appeal against the relevant court decision. That is a specific and I hope helpful response to the question raised by the noble Lord, Lord Kingsland. I summarised it shortly, but I believe rightly. The noble 394 Lord asked what would happen if the remedial order procedure were initiated before all avenues of appeal had been exhausted. We believe, as we believed then, that that situation would be unlikely to arise in practice. Having said that, we see no harm in making the position clear on the face of the Bill. That is the purpose of Amendment No. 40.

§ The noble Lord, Lord Coleraine, helpfully raised the question in Committee as to whether or not the power conferred by Clause 10 may be used retrospectively in respect of findings in proceedings against other states or parties to the Convention. Again, we believe those outcomes to be unlikely but, having reflected on the helpful comments made by the noble Lord, Lord Coleraine, we are content to make the position clear on the face of the Bill.

§ Both noble Lords have re-tabled their amendments. I can assure them that the government amendments achieve what their amendments tried to do. The drafting is slightly different. But we believe, modestly, that perhaps the parliamentary draftsman has done a good job here as regards Amendments Nos. 40 and 42. In the light of my brief explanation, I hope that both noble Lords will seek leave to withdraw their amendments. I beg to move.

§ Lord Kingsland
My Lords, as the noble Lord, Lord Williams of Mostyn said, in effect, the terms of Amendment No. 40 match the terms of my own Amendment No. 41. I am grateful that the Government have taken this step. I have a certain attachment to my own wording, but I accept that he has covered the point. In those circumstances I shall not move Amendment No. 41.

§ Lord Coleraine
My Lords, I too would like to thank the noble Lord for accepting the arguments which I put forward in Committee about this small matter. I am very happy that his amendment should pre-empt mine.

§ Lord Lester of Herne Hill
My Lords, I, too, support this amendment and those associated with it, to which I shall speak briefly. I wish to draw attention to one matter. I realise that it is right in principle that remedial action should be confined to proceedings against the United Kingdom, made after the coming into force of the relevant section. However, there is the problem of what happens in relation to proceedings before that occurs.
That is best illustrated by the position in the case of Goodwin v. the United Kingdom. In that case there was a finding by the European Court of a breach as a result of an interpretation given by the Appellate Committee of this House. Then the problem was translating that into our own legal system without legislation, given the doctrine of binding precedent.
The problem has been exemplified more recently by a decision of the Court of Appeal in a case called Camelot. There is now an awkwardness in that there is no equivalent of the remedial procedure by subordinate legislation to give effect to a judgment of the European Court of Human Rights where it is necessary to over-rule domestic law. This problem is going to continue as regards pre-Human Rights Act cases.
395 I realise that it would be wrong to seek to widen this power, but I draw the attention of the House to the problem. I am not quite sure how we resolve it if, for example, a journalist in the same position as Mr. Goodwin found that the judgment is given binding effect against him in breach of his rights under Article 10 of the European Convention on Human Rights. I draw attention to that not in order to speak against the amendment or to suggest that it should be widened. It is quite a serious practical problem that will continue to exist and will not be solved by this Bill.

§ Lord Williams of Mostyn
My Lords, that may be so, but the structure that we have carefully crafted is to tie in, with the assistance, which I re-acknowledge, of the propositions put forward by the noble Lords, Lord Kingsland and Lord Coleraine. We have constructed the system of remedial action specifically in the context of this Bill. We believe that we have achieved the right solution. There may be anomalies which will have to be addressed in a different way, but not—and I respectfully agree with the noble Lord, Lord Lester of Herne Hill—through remedial action. I am grateful that he has raised this question.
On Question, amendment agreed to.
[Amendment No. 41 not moved.]

§ Lord Williams of Mostyn moved Amendment No. 42: Page 6, line 10, after ("Rights") insert ("made after the coming into force of this section in proceedings against the United Kingdom").

§ The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

§ On Question, amendment agreed to.

§ [Amendment No. 43 not moved.]

§ Lord Williams of Mostyn moved Amendment No. 44: Page 6, line 11, leave out ("one or more of the obligations") and insert ("an obligation").

§ The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

§ On Question, amendment agreed to.

§ Lord Williams of Mostyn moved Amendment No. 45: Page 6, line 28, leave out ("one or more of the Convention rights") and insert ("a Convention right").

§ The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

§ On Question, amendment agreed to.

§ Lord Williams of Mostyn moved Amendment No. 46: Page 6, line 34, at end insert ("and (b)"legislation" does not include a Measure of the Church Assembly or of the General Synod of the Church of England").

§ The noble Lord said: My Lords, this amendment responds to concern expressed in Committee by the right reverend Prelate the Bishop of Exeter. Subsequently it was the subject of quite extensive discussions between representatives of the Synod of the Church of England and officials at the Home Office. I am most grateful for 396 the opportunity that we had at those discussions. They were very helpful indeed. We proceeded on the basis that the Lord Chancellor indicated right at the outset at Second Reading that anything that would improve the Bill, consonant with its philosophic structure and basis, would be given careful attention. I am grateful for the personal discussions I had with the right reverend Prelate the Bishop of Ripon when we were able to discuss other matters of general concern to the Church of England.

§ As it was indicated in Committee, Clause 10 would enable a Minister of the Crown to make a remedial order amending a measure of the General Synod or of its predecessor, the Church Assembly, following a declaration of incompatibility. The Minister of the Crown could do that without any reference to the General Synod.

§ The Church of England, perfectly properly, pointed out that that would sit uneasily with our present arrangements whereby a Church measure can only be approved or disapproved by Parliament in its entirety—in other words, with no opportunity for amendment. To provide for amendment of a Church measure by a Minister, even in response to the serious situation of a declaration of incompatibility, would obviously have significant implications for the Church. Neither do we feel that it would be appropriate for a Minister of the Crown to be in that situation. It would not tie appropriately with our present relations between Church and state.

§ Therefore, we thought about it carefully, particularly benefiting by the conversations to which I have referred. We came to the conclusion that if an amendment to Church measures were required to remove a convention incompatibility, it is better done by the Church itself rather than by the exercise of the order-making power by a Minister of the Crown. I express the Government's confident hope that if there were a court declaration of convention incompatibility, then the General Synod would speedily consider whether the measure should be amended. We do not believe that the Church of England would be found inactive if its legislation were found to be in breach of human rights. We are content to leave it at that. I beg to move the amendment on that basis.

§ The Lord Bishop of Ripon
My Lords, from these Benches I would like to express my thanks to the noble Lord, Lord Williams of Mostyn, for tabling this amendment. For over 70 years the Church Assembly—and more recently, the General Synod—have had delegated powers from Parliament to pass measures, subject to final parliamentary approval, relating to matters concerning the Church of England. These measures are part of the primary legislation to the law of the land. As the noble Lord, Lord Williams, has said, by removing measures from Clause 10, the understanding between Church and state is preserved.
The position of the Church of England as an Established Church puts it into a unique relationship with Parliament. As the noble Lord has said, Clause 10, as it stood before this amendment, would have given Ministers the power to amend Church of England legislation without consulting the Church.
397 The amendment removes those measures from Clause 10. It does not affect the status of such measures as primary legislation and the courts therefore cannot strike them down. However, as the noble Lord said, the courts have the power to declare an incompatibility between the convention and measures, and the power under this amendment to remedy that incompatibility lies not with the Government but with the Church of England.
The Church of England—I am confident that I speak for other Churches also—does not wish to escape its proper obligations under the convention. We have been seeking an assurance that the Bill cannot be used to require the Church to act in ways contrary to its religious principles and beliefs.
This generous and welcome amendment gives a substantial assurance to the Church of England in this regard. I should like to express once again my thanks not only to the noble Lord, Lord Williams of Mostyn, but also to his officials for their careful consideration of this issue and my pleasure at the outcome.
In response to the noble Lord's final hope, I wish on behalf of the Church of England to give an assurance that if ever the courts made a declaration that a Church measure was incompatible with convention rights, the Church would of course give consideration of the utmost seriousness to the introduction of an amending measure into the General Synod for the purpose of rectifying the situation.

§ 8 p.m.

§ Lord Hughes of Woodside
My Lords, I do not want to become involved in a contentious debate about Church versus state. That issue was probably debated at length earlier. However,I am unconvinced that there is any need to exclude the Church from any of the Bill's provisions.
I should like clarification on one or two points. As I understand the amendment from the way in which it was moved, and from the response from the right reverend Prelate, it basically restores the position to what it was before this Human Rights Bill was introduced. There is no real attempt to put the Church of England in an especially privileged position other than the especially privileged position that it was in before.
The whole purpose and thrust of the Bill is to repatriate the human rights Convention. No human rights have been taken away from anyone. We all understand the certain derogations in the Bill, but they in no way affect Article 9 of the Convention, which deals with religious freedoms.
Perhaps I may ask a question. Is it possible for someone who feels aggrieved by the procedures of the Church still to go to Strasbourg if he or she wishes? In other words, I seek confirmation that there is no cut-off point and that nothing in the amendment prevents that happening. If that is so, there would be no problem, but if it were the case that the purpose of the amendment inadvertently—if perhaps not advertently—was to reduce the possibilities of anyone going to Strasbourg to exercise their rights, in my view that would represent unfair discrimination in favour of the Church. I hope that an explanation of that point can be given.
398 If there are difficulties such as I have suggested, I hope that the Government will look again at this amendment to ensure that nothing is done which takes away the rights of any individual who may have a grievance against the Church.

§ Lord Goodhart
My Lords, on the first day of Report stage, I spoke against the much wider amendment (which was defeated on a Division) to exempt the Church of England and, indeed, other religious bodies from much of the effect of this Human Rights Bill.
On this occasion, I speak in support of the amendment which has been moved by the noble Lord, Lord Williams, because it seems to me to do no more than what is perfectly proper, which is to secure that the existing arrangements for the constitutional settlement between Parliament and the Church of England are maintained as now. We on these Benches are entirely happy with that.

§ Lord Williams of Mostyn
We are grateful for the generous response of the Church of England as articulated by the right reverend Prelate the Bishop of Ripon and for his positive assertion, which we welcome and accept, that the Church of England would not be found wanting or dilatory were a declaration of Convention incompatibility to be made in respect of any court order.
To answer the specific question asked by the noble Lord, Lord Hughes of Woodside, nothing in this Bill takes away from any citizen of this country the opportunity of the journey to Strasbourg if that were eventually required. The whole point of the Bill is, to coin a phrase, to bring rights home. The Church of England is not being exempted from the provisions of this Bill. We are dealing with the relationship between Church measures and legislation. It is because Church measures can be only approved or disapproved—not amended—following parliamentary discussion and scrutiny that we think that the remedial fast-track procedure is not appropriate for the reasons outlined briefly by the noble Lord, Lord Goodhart, upon which exposition I cannot improve.
On Question, amendment agreed to.
Clause 11 [Remedial orders]:

§ Lord Williams of Mostyn moved Amendment No. 47: Page 6, line 35, leave out from beginning to ("may") and insert ("A remedial order").

§ The noble Lord said: My Lords, this is a drafting amendment. In Committee the noble Lord, Lord Meston, commented that the phrase "a remedial order" seemed to make its first entry into our world in Clause 11 although the power to make it was conferred by Clause 10. Scrutiny of the Bill will show that the phrase does not appear first in Clause 11, but in Clause 6(6)(b) which is concerned with acts of public authorities. It is not defined in that clause but in Clause 21, which defines a number of expressions used in the Bill. Clause 21 states that "remedial order" means, an order under section 10".

§ I agree with the noble Lord that the drafting of Clause 11 could be improved. Where we detect improvements, as is now notorious in your Lordships' 399 House, we are always willing to act upon them. That is why this drafting amendment has been tabled. I beg to move.

§ On Question, amendment agreed to.

§ Lord Lester of Herne Hill moved Amendment No. 48: Page 7, line 3, at end insert— ("( ) The power to amend or repeal primary legislation under this section may be used only where it is deemed necessary to correct the incompatibility with the Convention rights.").

§ The noble Lord said: My Lords, this amendment draws on the report of the Select Committee on Delegated Powers and Deregulation, paragraph 23 of which states: This [remedial fast-track procedure] is a Henry VIII power of the utmost importance, which the Committee wishes to draw to the House's attention …We have noted the Lord Chancellor's statement to the House at Second Reading that the power can only be used under strictly limited circumstances. Without strict limitations, a secondary power of such potential width would be unacceptable".

§ On 27th November, at col. 1143 of Hansard the noble Lord, Lord Williams of Mostyn, said in reply: It is clear from Clause 10(2) that a Minister will be empowered to make only such changes (apart from any consequential changes) as are appropriate to remove the incompatibility".

§ The Minister was referring to appropriateness as being the test.

§ The purpose of this amendment is to require the fast-track procedure to be invoked where it is not merely appropriate but necessary in order to give effect to the court's declaration of incompatibility.

§ When the Lord Chancellor replied, he indicated that the Government had considered with great care the report of the Select Committee on Delegated Powers and Deregulation and had concluded that Clause 12 was adequate. The noble and learned Lord then said these important words: In the present Bill remedial orders are limited specifically to amendments to legislation which are necessary to remove an incompatibility with the convention".—[Official Report, 27/11/97; col. 1145.]

§ That is not what the Bill says; it is what the amendment says.

§ I regard it as of great importance that the words of the Lord Chancellor should be reflected on the face of the Bill because of the unease on all sides of the House, shared with different levels of disquiet, about Henry VIII clauses. I note that when we come later to Amendment No. 49 we shall look at attempts to impose further safeguards on the fast-track procedure. My attitude to those amendments will be greatly affected by the reply from the Government Benches to this amendment, and whether the Government are willing to create the necessary safeguard. I know it will be said that it goes without saying and that the courts are likely to read into the Bill a test of necessity and not just appropriateness, but the words "appropriate" and "necessary" are not the same. Therefore, it is very important that before delegated powers to amend primary legislation are invoked—powers with which I entirely sympathise for the reasons given by the noble 400 and learned Lord the Lord Chancellor during the previous debate—the test of necessity should be on the face of the Bill. I beg to move.

§ Lord Henley
My Lords, I support the amendment moved by the noble Lord, Lord Lester of Herne Hill. He referred to my amendments which are in the next group. Those amendments take the idea somewhat further and I believe are more in line with the suggestions made in paragraph 24 of the sixth report of the Delegated Powers Scrutiny Committee. Obviously, I would prefer to go down the line of Amendment No. 49 and the associated amendments, but if the House is unwilling to go that far at this stage I should like to support Amendment No. 48. If the House is prepared to accept both I shall be even happier because the two groups of amendments are not incompatible. I believe that my amendments, to which I shall speak at slightly greater length, do more to achieve that which was suggested or recommended by the Delegated Powers Scrutiny Committee.

§ Baroness Williams of Crosby
My Lords, this particular amendment attracted a good deal of support in Committee. We were then told to go away and ponder the matter further. The noble Lord, Lord Williams of Mostyn, said that he would also ponder further upon it. He said at the time that I was pressing for both belt and braces. That is correct. I see no objection to the combination of belt and braces. Indeed, that may be a very useful motto for everyone to bear in mind on some occasions.
I cannot see any objection to this amendment. Either it is the Government's intention to draw as narrowly as possible the powers that Ministers will have under these clauses or it is their intention to try to satisfy Parliament that the powers used are absolutely essential. I believe that on both tests this amendment is not objectionable. I hope that in responding the Government will make it plain either that they accept it or that there are very good reasons why they cannot do so.

§ Lord Simon of Glaisdale
My Lords, I too support the amendment. Your Lordships are now sensitive to the allegation of Henry VIII powers, particularly since the setting up of the committee which investigates them. These provisions allow the Henry VIII provision to go to quite unnecessary lengths. I ask your Lordships to look at Clause 11(1) which provides that a remedial order may make consequential provision. In subsection (2) it is provided that subsection (1) powers include powers to amend or repeal primary legislation—that is the Henry VIII proposal—including primary legislation other than that which contains the incompatible provision; in other words, it goes beyond what is required to remove an incompatibility and what is consequential to that. Put another way, the provision in this amendment is necessary. It picks up the word used by my noble and learned friend in justifying it. It is necessary in order to limit the quite undesirable ambit 401 of the Henry VIII provision; in other words, it includes other primary provisions beyond what is incompatible and consequential on the incompatibility.

§ Lord Coleraine
My Lords, I should also like to express my support for the amendment moved by the noble Lord, which I believe the noble Baroness, Lady Williams, moved in Committee. I have one query on the drafting which centres on the word "it". I believe that the word should be "power". Obviously, the remedial order will not be made except where it is deemed necessary to correct the incompatibility with Convention rights. The Government will not amend the legislation except where necessary to correct an incompatibility, but it is important to make clear that it is the power which is deemed necessary.

§ The Lord Chancellor
My Lords, I confess that I am a little puzzled. Your Lordships will appreciate that the amendment under consideration is an amendment to Clause 11, not Clause 10. Therefore, the subject matter under consideration is correctly addressed by the noble and learned Lord, Lord Simon of Glaisdale. Clause 10 allows a remedial order to be made to amend a piece of primary legislation so as to remove an incompatibility that has been found to exist in one of its provisions. Clause 11(1)(a) provides that a remedial order under Clause 10 may contain such incidental, supplemental, consequential and transitional provisions as the person making it considers appropriate. Clause 11(2)(a) provides that the power to make incidental changes includes power to amend or repeal primary legislation, including primary legislation other than that which contains the incompatible provision.
Thus, Amendment No. 48 bites on the power to make incidental changes to legislation in addition to the main changes necessary to remove the incompatibility. I gained the impression from the language used by the noble Lord, Lord Lester, that he believed his amendment would alter the whole basis for remedial orders. But they are made under Clause 10 and this amendment relates only to the ancillary powers in Clause 11.
I hope that I can reassure your Lordships, as I and my noble friend Lord Williams of Mostyn sought to do both at Second Reading and in Committee, that the Bill contains sufficient safeguards to meet concerns about the powers conferred under Clauses 10 and 11. These powers have been carefully tailored to ensure that a remedial order can perform the job that it is designed to do; namely, to remove incompatible provisions of legislation in an effective and tidy way. A remedial order would not be used, and in our view could not be used, for any other purpose.

§ Lord Simon of Glaisdale
My Lords, would not the word "consequential" be sufficient to tidy up the amendment?

§ The Lord Chancellor
My Lords, I will explain in a moment the effect of Clause 11(1)(a). It provides that a remedial order under Clause 10 may contain such incidental, supplemental, consequential and transitional provisions as the person making it considers appropriate. 402 Clause 11(2)(a) adds that this provision includes a power to amend or repeal primary legislation including primary legislation other than that which contains the incompatible provision.
It is in relation to that power only that the amendment would bite. It would limit the power to make incidental, supplemental and consequential changes to primary legislation which were themselves deemed necessary to correct an incompatibility with the Convention. In doing so it would prevent the amendment or repeal of provisions of other primary legislation that are not in themselves incompatible but whose amendment or repeal would be a natural or sensible corollary to the successful curing of the incompatibility of the legislation found to have been wanting. In other words, the effect of the amendment would negate the purpose of the provision which is made in Clause 11 for changes incidental to this which are needed to correct the incompatibility.
For example, there may be cases where changes to other legislation which is not itself incompatible, are necessary not to remove an incompatibility but for consequential or supplemental purposes. For example, if a section of an Act has been deleted, any references to that section in other Acts would be otiose and should also be removed. Changes under this category would be ruled out by the amendment.
The Government understand the desire to ring-fence the powers in Clauses 10 and 11 so far as possible, consistent with the purposes of the remedial order; but we believe that the existing provisions provide appropriate safeguards. I will list the elements. The order-making procedure is only available where a declaration of incompatibility under Clause 4 or a Strasbourg court judgment has been given or there is an urgent need to replace subordinate legislation quashed on convention grounds. Crucially, for present purposes, the power is to be used to remove incompatibility found by the UK or the Strasbourg court, and plainly it cannot be used in any connection for any other purpose.
The power to make incidental, supplemental, consequential and transitional provision is not novel; it is a well precedented supplementary vires provision. I emphasise "supplementary". It is not a basis on which a Minister could properly tackle some unrelated issues. Supplementary provision can only be added to a Clause 10 order, and the object of the Clause 10 order must be to remove the incompatibility found by the United Kingdom or Strasbourg court. In other words, while the power extends to amending other legislative provisions, it is heavily circumscribed because of the plain purpose of Clause 10.
Our view is that it is necessary to have the extra powers in Clause 11 in addition to the main powers in Clause 10 if the job is to be done properly and remedial orders are to make proper sense. We think that the amendment would make this impossible.
403 The purpose of Clause 10(2) and Clause 11(1)(a) is to ensure that the removal of an incompatibility is complete so far as the statute book goes. As we see it, that is all that there is to it, and on that basis I hope the noble Lord will withdraw the amendment.

§ Lord Lester of Herne Hill
My Lords, that was a most powerful and impressive reply, which I should like to read in Hansard and think about tomorrow. If I have been guilty of a certain confusion of thought, then I plead guilty as between Clause 10 and Clause 11. I understand why the noble and learned Lord the Lord Chancellor had gained that impression of what I said.
I do not share the view of noble Lords who have criticised Clauses 10 and 11 as creating a vast Henry VIII clause with jackboots added on, doing violation either to parliamentary accountability or rule of law. I made clear at an early stage that I approve of this fast track procedure for the reasons given by the Lord Chancellor—that is to say, it is to uphold the rule of law to ensure that a declaration of incompatibility in judgments of the European Court are speedily and effectively translated by Parliament into effective remedies required, among other things, by Article 13 of the convention. Therefore I have no disagreement with the purpose of Clauses 10 and 11.
Much of what the noble and learned Lord said sounded like a judgment of the Appellate Committee in the House of Lords in an argument of vires about whether a particular form of delegated legislation came within or outside Clauses 10 and 11. I believe that the law Lords would be most likely, if not certain, to give a judgment in that way.
We have been given assurances, which I should like to consider further, about the need to ring-fence the safeguards the Lord Chancellor has indicated and the difficulty of seeking to limit the remedial orders in Clause II by a test of necessity when one does not, for obvious reasons, seek to limit the power to take the legal action by a similar test of necessity in Clause 10.
I hope I will not be considered by noble Lords who have been generous enough to support this amendment to have sold the pass; but I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Procedure]:

§ Lord Henley moved Amendment No. 49: Page 7. line 7, at beginning insert ("subject to the provisions of subsections (1 A) to (1 D)").

§ The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 52, 53, 54 and 59. We have briefly discussed the matters in relation to the earlier amendment which, sadly, the noble Lord, Lord Lester of Herne Hill, did not press to a Division. The other amendments in this group, Amendments Nos. 50 and 55 and 51, 56, 57 and 58, are all different approaches to the same issue and I trust that on this occasion we have all found the right clause to put them in. Even if they are not in the right clause I 404 hope that the Government will not address the issue tonight because that matter could be resolved on another occasion.

§ I suspect that the group of amendments in my name and in the name of my noble friend are nearest to the approach put forward by the Delegated Powers Scrutiny Committee.

§ I moved similar amendments at Committee stage and therefore I do not intend to speak at great length on these amendments. I received a degree of support from the noble Baroness, Lady Williams, and then I offered her a degree of support on her amendments, just as I do on these amendments. Having debated the amendments, I have made some modifications to appease the Government by reducing the period of delay from 60 days to 40 days; but I suspect that that was unnecessary because the Government's amendments now seem to accept a 60 day delay period. I made the concession but it was not necessary.

§ At Committee stage I made reference to the report of the Delegated Powers Scrutiny Committee. I will not repeat paragraph 24 of that report except to remind noble Lords of the sentence which stated that the House may wish to consider whether there is a case for developing a new procedure to scrutinise such orders modelled on that for the second stage parliamentary scrutiny of deregulation orders.

§ It is important that Parliament has a means of amending these orders. That is what my amendments do, and what, I regret to say, the other amendments do not do. It would obviously be possible, if one followed the lines pursued by the Minister's amendments, for the Executive to produce amendments following the consultation period. That is not sufficient. This is one of those occasions where it is important that Parliament itself can make amendment to the orders before they go through.

§ Committee stage was some time ago, and since then we have had the final stages, which the Minister will remember, of the Special Immigration Appeals Commission Bill. That Bill came to this House for the last time on 2nd December last year, and, as I understand it, it was designed to rectify a problem following a judgment of the European Court of Human Rights.

§ As the Minister will remember, my noble friend Lady Blatch, who was at the time dealing with Home Office matters, on a number of occasions pressed amendments to that Bill, but they were resisted in this House by the Minister. Following my noble friend failing to move, as it were, the Minister, but no doubt on his advice, his colleagues in another place agreed largely to accept the points put forward by my noble friend. Again, I hope on his advice, his honourable and right honourable friends in another place accepted the spirit of her amendments.

§ Without my amendment, it would not be possible for Parliament to make those amendments. No doubt the Minister will respond that it would be possible for the Government, should they wish, to use primary legislation to rectify those problems. Similarly, it would be possible for the Executive, in moving the orders 405 following that procedure to make amendments, but it would not he possible for this House or another place themselves to put right the wrong. That is why I believe that my amendments are the right way to take forward this matter. I beg to move.

§ 8.30 p.m.

§ Lord Goodhart
My Lords, I have been asked by the noble Baroness, Lady Amos, whose name stands first in the list of those tabling Amendments Nos. 50 and 55, but who is unable to be here tonight, to speak to those amendments on her behalf.
On the issues raised by the amendments, the parties seem to have been moving, to some extent, towards a consensus, but unfortunately they have not quite reached it. We who have tabled the amendments, welcome the amendments to be moved by the Minister. We also have a good deal of sympathy with the amendments tabled by the noble Lord, Lord Henley.
Two principles are involved. One is that there should be an opportunity to scrutinise a draft remedial order before it takes effect; the second is that there should be power to revise or amend a draft order in the light of defects shown up by that scrutiny.
I shall look first at the question of scrutiny. It will of course be for the Government to decide whether to invoke, in any particular instance, the fast-track procedure. If they do so, the purpose of the scrutiny will not be to review that decision, and decide whether or not it was correct, but to look at the draft of the proposed order to see whether it is an appropriate and effective way of correcting the incompatibility which has been discovered by the court, and to ensure that the order does nothing more than correct that incompatibility.
Wide public consultation will not be needed. What will be needed is expert scrutiny by a body familiar with parliamentary draftsmanship. That body should be a human rights committee, either of each of the two Houses or a joint committee of both. I recognise that it is of course for Parliament to decide whether to set up such a committee, and not for legislation. Our amendments are intended to emphasise the importance of ensuring that there is scrutiny by an appropriate committee, without being prescriptive as to the nature of that committee. So far as Amendments Nos. 52 and 53 seek to achieve the same purpose, we of course agree with them.
The Government's White Paper on the Bill made it clear that they would welcome the creation of a parliamentary human rights committee or committees. I assume that that remains their view. I should welcome confirmation of that and also that the Government see scrutiny of draft remedial orders as one of the functions of a parliamentary human rights committee.
I turn now to the question of amendment. It is surely pointless to have scrutiny if the result of the scrutiny cannot be taken into account in deciding the final form of the order. It is not generally open to either House to amend the text of a draft Order in Council. The amendment moved by the noble Lord, Lord Henley, is an ingenious solution to that problem, though in our view it involves some element of overkill and may lead to unnecessary delay, because it will require, before the order can come 406 into effect, two successive 40-day periods—one involving the looking at what may be called a pre-draft and then the actual draft.
I hope that the fast-track procedure will be rarely needed, and that when it is needed it will often be easy to see what amendment is needed to ensure the compatibility of the existing legislation. For that purpose, an 80-day stand delay will not be needed. But it may not always be as simple as that. It is important that the Government should have power to amend an Order in Council by means short of the withdrawal of the existing order and the laying of a new order.
In Committee, the noble and learned Lord the Lord Chancellor took the view that Clause 12 was adequate as it stood. He also at that stage took the view that a 60-day period of consideration was unnecessary. On the latter point, the Government's view has now changed. Amendment No.58 will extend the period for consideration to 60 days. Presumably the point of the Government's amendments, extending the period of consideration to 60 days, is to enable more detailed consideration of the draft Order in Council to take place. But what is the point of having a period for scrutiny and consultation if the draft has already been laid before the House in a form which can be amended only by withdrawal and relaying?
The consultation process may well make it clear that the order is capable of improvement. I would ask the noble and learned Lord the Lord Chancellor to reconsider whether it would be possible to introduce a procedure to enable that order to be revised after it has been laid before the House in draft.

§ Baroness Williams of Crosby
My Lords, this is an important group of amendments. One of the reasons why the noble Baroness, Lady Amos, and I moved the original Amendments Nos. 50 and 55 was to give a substantial parliamentary element to the consideration of remedial orders. I greatly welcome the new amendment tabled by the Minister. I have just one reservation. It is the one made by my noble friend Lord Goodhart; that is, it makes no reference to the scrutiny by Parliament as distinct from consideration by the Executive.
I recognise that the Minster has gone some way towards meeting the point raised in Committee by extending the period of consideration to 60 days, but I should be most grateful if he, or his noble and learned friend the Lord Chancellor, would say a little more. I recognise the difficulties because the noble and learned Lord the Lord Chancellor has said more than once that this must be a matter for Parliament; but if it is a matter for Parliament it is one where the Government's assurances and statements will be taken into account. Perhaps a little more could be said about how the Government consider the possible responsibilities and developments of the committee were it to be set up.

§ The Lord Chancellor
My Lords, I certainly agree with the noble Baroness that this is an important group of amendments. In Committee your Lordships discussed in some detail the procedure for making a Clause 12 remedial order. There was undoubtedly feeling that the procedure should be amended to make it easier for 407 Parliament to exercise its scrutinising role. Amendments were tabled on that occasion to lengthen the period for consideration of remedial orders to provide for the scrutiny by a parliamentary committee and to enable them to be amended by Parliament. Similar amendments have been tabled for Report. They are before your Lordships again. In Committee, we undertook to reflect on the concerns that had been expressed. As your Lordships will see, we have responded and we have concluded that some changes to the procedure should be made, although we have not adopted all the suggestions made in Committee. Nonetheless, we hope that the government amendments will give a measure of satisfaction.
The first change we propose relates to the period for consideration of draft remedial orders. Under Clause 12(1)(a), no remedial order may be made unless a draft has been approved by Parliament. No period of time is prescribed for this procedure, so it would be possible for a draft to be approved, and an order made, very soon after the draft was laid before Parliament. The effect of government Amendments Nos. 51, 57 and 58 is to provide a minimum period of 60 days' consideration before a draft of the order may be approved by Parliament. The noble Baroness, Lady Williams of Crosby, was good enough to call attention to that. This is designed to allow interested parties an adequate period of time in which to comment upon a draft remedial order. It responds to amendments tabled in Committee by the noble Lord, Lord Meston, and to one aspect of the amendments tabled by the Opposition.
I ought to point out that the government amendments depart from those tabled in Committee in not providing a 60-day period for the consideration of urgent remedial orders made under clause 12(1)(b). In these cases the order will expire after 40 days unless approved by Parliament. These orders are to be made without prior parliamentary approval, and we do not want to extend the time in which they may have effect without such approval. A 60-day period for consideration of these orders would simply delay the point at which Parliament could, if it chose, express its disapproval of the order.
The other change that we propose is in the government Amendment No.56. It would require a remedial order, or draft, to be accompanied by an explanatory statement. This would contain particulars of the court case in which the declaration of incompatibility had been made, and would seek to explain what the incompatibility was. It is designed, therefore, to facilitate the consideration of remedial orders by Parliament.
We think this would be helpful because we still believe, as we said in Committee, that it would not be appropriate to create a statutory, and I emphasise statutory, requirement for the scrutiny of remedial orders by a parliamentary committee, as the amendments in the name of the noble Baroness and others would do. We assume that this will be the parliamentary committee on human rights, and we have said before, and I say again, that we would welcome the establishment of such a committee, but it is a matter for Parliament. We do not want to anticipate what the functions of that Committee might be. As we said in Committee, it is not normal practice for provisions of this kind to be set out in statute, and I have to say that I do not think there is a case for departing from 408 the normal practice on this occasion. But I made perfectly plain what the position of the Government is in relation to the establishment of a parliamentary committee on human rights. Nor do we think it necessary to provide for the amendment of remedial orders once made or laid in draft, as proposed in the Opposition amendments. Statutory instruments cannot be amended. An instrument has to be revoked, remade or another amending instrument made, and remedial orders are no different. The advantage of the draft affirmative resolution procedure in Clause 12 is that Parliament can decline to approve so the order cannot be made and a further order would then have to be prepared to meet Parliament's concerns; otherwise the incompatibility desired to be removed would simply continue. The explanatory document that we propose will make it possible for Parliament to have an informed debate about the incompatibility which has been exactly identified by a court and what the Government's proposals are for removing it.
In proposing these changes I can say that I am conscious of looking ahead to the possible establishment of a parliamentary committee on human rights. Such a committee, I can readily say, would be able to look afresh at the issue of procedure in the light of the experience gained in operating these provisions. If it recommended that a closer Parliamentary scrutiny of remedial orders was needed, I am sure that the Government would be very much influenced by that. But for the present, although we cannot accept the Opposition amendments or those in the name of the noble Baroness, and others, I hope the House will accept, particularly in the light of the explanations that I have given, that we do offer the government amendments for approval by your Lordships' House in a spirit of conciliation and as improvements which go some considerable way towards meeting the concerns expressed in committee. I beg to move.

§ 8.45 p.m.

§ Lord Henley
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for having gone just a little way towards meeting some of the demands and requests made both by myself and by noble Lords from the Liberal Democrat Benches.
However, I have to say that I do not think that the noble and learned Lord went far enough on this occasion. I referred earlier, as did other noble Lords, to the report from the Delegated Powers and Deregulation Committee. I can assure the noble and learned Lord that whenever that Committee made recommendations when we were in government we were always most scrupulous in taking up those recommendations and in acting upon them. It would be right if we allowed the House at least to have the opportunity on this occasion to consider the matter.
I appreciate that the noble and learned Lord has made a number of concessions. He has lengthened the period of delay from 40 days to 60 days at a time when I was suggesting bringing it down from 60 days to 40 days. I do not think that the actual period of time available for scrutiny of these orders is a matter of great importance. What I do believe is important is that Parliament itself, and not just the Executive, has some power, some ability, for developing a procedure whereby it can amend these orders. That is what was recommended by the Delegated 409 Powers and Deregulation Committee and that is what I think this House ought to be given the opportunity to consider this evening. For that reason I do not wish to withdraw these amendments. I wish to test the opinion of the House.

§ 8.50 p.m.

§ On Question, Whether the said amendment (No. 49) shall he agreed to?

§ Their Lordships divided: Contents, 14; Not-Contents, 63.

Division No.3
CONTENTS
Annaly, L.	Jenkin of Roding, L.
Astor of Hever, L.	Kingsland, L.[Teller.]
Burnham, L.	Lucas of Chilworth, L.
Byford, B. [Teller]	Lyell, L.
Clanwilliam, E.	Naseby, L.
Coleraine, L.	Renton, L.
Henley, L.	Rowallan, L.

NOT-CONTENTS
Acton, L.	Hunt of Kings Heath, L.
Allenby of Megiddo, V.	Irvine of Lairg, L. [Lord Chancellor.]
Amos, B.
Archer of Sandwell, L.	Janner of Braunstone, L.
Bassam of Brighton, L.	Jay of Paddington, B.
Berkeley, L.	Kennedy of The Shaws, B.
Blackstone, B.	Levy, L.
Borrie, L.	McIntosh of Haringey, L. [Teller.]
Brooke of Alverthorpe, L.	Mallalieu, B.
Carter, L. [Teller.]	Mishcon, L.
Chandos, V.	Molloy, L.
Cledwyn of Penrhos, L.	Monkswell, L.
Clinton-Davis, L.	Montague of Oxford, L.
Currie of Marylebone, L.	Murray of Epping Forest, L.
Davies of Oldham, L.	Pitkeathley, B.
Desai, L.	Prys-Davies, L.
Donoughue, L.	Ramsay of Cartvale, B.
Dormand of Easington, L.	Randall of St. Budeaux, L.
Dubs, L.	Rea, L.
Falconer of Thoroton, L.	Rendell of Babergh, B.
Farrington of Ribbleton, B.	Richard, L. [Lord Privy Seal.]
Gilbert, L.	Rogers of Riverside, L.
Gordon of Strathblane, L.	Serota, B.
Gould of Potternewton, B.	Sewel, L.
Hardie, L.	Simon, V.
Hardy of Wath, L.	Straholgi, L.
Haskel, L.	Symons of Vernham Dean, B.
Hayman, B.	Thomas of Macclesfield, L.
Hollis of Heigham, B.	Walker of Doncaster, L.
Hoyle, L.	Wedderbum of Charlton, L.
Hughes, L.	Whitty, L.
Hughes of Woodside, L.	Williams of Mostyn, L.

§ Resolved in the negative, and amendment disagreed to accordingly.

§ [Amendment No. 50 not moved.]

§ The Lord Chancellor moved Amendment No. 51: Page 7, line 8, after ("Parliament") insert ("made after the end of the period for consideration").

§ On Question, amendment agreed to.

§ [Amendments Nos. 52 to 55 not moved.]

410

§ The Lord Chancellor moved Amendments Nos. 56 to 58: Page 7, line 17, at end insert— ("( ) A remedial order (or draft) laid before Parliament must be accompanied by a statement containing—

(a) an explanation of the incompatibility which the order seeks to remove, including particulars of the relevant declaration, finding or order: and
(b) a statement of the reasons why the person making it (or proposing to make it) considers an order in those terms appropriate.").

Page 7. line 18, leave out ("In subsection (2)"). Page 7, line 18. after ("means") insert—

("(a) in subsection (1), the period of sixty days beginning with the day on which the draft was laid, and
(b) in subsection (2),").

§ The noble and learned Lord said: My Lords, I beg to move.

§ Lord Coleraine
My Lords, the noble and learned Lord has spoken to this amendment with Amendment No. 49. I should have liked to respond after he had spoken on that group of amendments, as I should have been entitled to do. However, I felt that it would be confusing to the House if I tried to intervene between the noble and learned Lord and my noble friend winding up on Amendment No. 49.
At this time, when the Government are being so generous in so many ways on this Bill, would it not be a collateral advantage for the statement to be made as set out in Amendment No. 56 to extend not only to the reasons why it is appropriate for the order in those terms to be made, but also why it is appropriate to proceed by way of remedial order?

§ The Lord Chancellor
My Lords, perhaps I may write to the noble Lord on that subject.

§ On Question, amendments agreed to.

§ [Amendment No. 59 not moved.]

§ Clause 13 [Other rights and proceedings]:

§ Lord Williams of Mostyn
moved Amendment No. 60: Leave out Clause 13 and insert the following new clause— SAFEGUARD FOR EXISTING HUMAN RIGHTS (".A person's reliance on a Convention right does not restrict—

(a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom, or

(b) his right to make any claim or bring any proceedings which he could make or bring apart from sections 7 to 9.").

The noble Lord said: My Lords, this amendment is designed to clarify the purpose of Clause 13 and to remove any possible misunderstanding. Clause 13 as presently drafted, and as it would be in this new clause, is simply to provide a saving for other human rights. It is there to ensure that if a person has existing rights, nothing in this Bill shall detract from them in any way. We believe that this amendment brings that out more clearly than the current formulation. That, briefly, is the purpose of the amendment.
411 There are, of course, two kinds of relationship created in the Bill between convention and domestic law: the interpretive principle in Clauses 3 to 5, and the right to rely on convention rights against a public authority in Clauses 6 to 9. We do not wish to have any misunderstanding. We believe that the new formulation makes the position, as was intended, rather plainer. We hope that your Lordships will find the amendment to be a useful clarification. I beg to move.

§ 9 p.m.

§ Lord Lester of Herne Hill
My Lords, I greatly welcome the amendment. I do so because it makes clear that which is already implicit in the Bill—namely, that the European convention contains a floor of minimum rights guaranteed under international law, but does not create a ceiling. Therefore, if Parliament chooses to go further or if the common law goes further in protecting our basic rights and freedoms, which are inherent in us as citizens and human beings, the convention and the Bill are not to restrict that. The fact that that is a minimum and not a maximum is made clear in the convention itself. It does not mean that there will never be conflict and difficult questions to be resolved as a result of people arguing that, say, the Race Relations Act is an infringement of some basic right in the convention, or other such points. It is important that one does not concentrate only upon the convention as a guarantee of rights. As the amendment makes clear, the common law will continue to develop in a creative way and no doubt the convention will be used, as the Bill makes clear, in the course of developing the common law.
I, for one, believe that one should approach convention rights through out common law and through the statute book, not round the common law or the statute book. That is to say, one intertwines convention rights into our domestic legal system. One of the many virtues of the Bill is the fact that those who have thought it through and drafted it have found ways to create very subtle connections between convention rights and our own statute law and common law. This modest looking amendment is designed to make all of that clear. It is to be welcomed.
On Question, amendment agreed to.

§ Lord Lester of Herne Hill
had given notice of his attention to move Amendment No.61: After Clause 13. insert the following new clause—

§ ("Human Rights Commissioner

§ HUMAN RIGHTS COMMISSIONER

§ .—(1) The Secretary of State may by order made by statutory instrument appoint a Commissioner, to be known as the Human Rights Commissioner, to perform any or all of the following functions—

(a) to provide advice or other assistance, including legal and financial assistance, to persons—

(i) bringing, or proposing to bring, proceedings under section 7; or
(ii) relying or proposing to rely upon a Convention right in any proceedings, 412 provided that the Human Rights Commissioner considers that such proceedings raise a question of principle of general public importance;

(b) to bring proceedings under section 7 or intervene in proceedings—

(i) brought under section 7: or
(ii) where a Convention right is relied upon, provided that the Human Rights Commissioner considers the bringing of such proceedings, or such intervention, to be in the furtherance of the main purposes of this Act;

(c) to undertake research and educational activities connected with the main purposes of this Act; or
(d) to review and report to the Secretary of State on the appropriate machinery to give effect within the United Kingdom to the Convention rights set out in Article 14 of the Convention (prohibition of discrimination).

§ (2) No order may be made under subsection (1) unless a draft of the order has been laid before, and approved by, each House of Parliament.").

§ The noble Lord said: My Lords, for the reasons that I outlined at the start of our deliberations today, I shall not move the amendment on this occasion but will return to the matter on Third Reading.

§ [Amendment No. 61 not moved.]

§ Clause 18 [Appointment to European Court of Human Rights]:

§ The Lord Chancellor moved Amendment No. 62: Page 10, line 5, leave out ("12") and insert ("12(1) to (6)").

§ The noble and learned Lord said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 63, 64, 67 and 74. The issue which the amendments address was most helpfully drawn to the attention of the House in Committee on 27th November by the noble and learned Lord, Lord Ackner, when he moved his Amendment No. 97, as it was then, and spoke in the subsequent debate. I hope that the noble and learned Lord will regard the amendments that I now move as a completely satisfactory response by the Government to the issues which he then explored.

§ The Bill makes provision for the appointment of a UK judge to the European Court of Human Rights. It is possible, although not necessary, that the appointment will be made from among the ranks of serving judges. If that happens, the judge will be in a unique situation; and, in announcing the pension arrangements that will apply to him, I emphasise that no precedent is being set that could apply to any other position. The Government are concerned to ensure that, should a judge already serving in the United Kingdom be the preferred choice for appointment to the ECHR, he or she should not be adversely affected in pension provision when compared to every other judge serving in the UK. The amendments taken together ensure that a UK judge who is for a time serving in the ECHR will be treated for pension purposes as if he had not left his UK office.

§ Amendment No. 62 paves the way for that process by restoring the provision about pensions in the Supreme Court Act. It is, as I have explained, no longer appropriate to apply the rest of Section 12 to an ECHR judge, as it would mean paying his United Kingdom salary in addition to his European salary, even though he was not actively performing any judicial duties in the 413 UK. Therefore, he will not have two salaries, but only his European salary. However, it is obviously right that his pension rights should not be prejudiced.

§ As it is our intention that his eventual pension should be paid as if he had not had a period of service at the ECHR, it is right that the provision in Section 12(7) should remain applicable. Amendment No. 64 removes the general power to make pension provision for the ECHR judge; this is because it is replaced with a much more specific duty to make such provision. In changing the power to make arrangements to a duty to make specific types of arrangements, I am confident that the concerns expressed in Committee by the noble and learned Lord, Lord Ackner, will be met.

§ Amendment No. 74 introduces a new schedule to the Bill, Schedule 3. This schedule contains the detail of how that pension provision will be made. It is intended that orders made under Schedule 3 will be subject to the negative resolution procedure, and Amendment No. 67 gives effect to this. Schedule 3 imposes a duty on the relevant Minister, who will usually be the Lord Chancellor, to make an order making pension provision for any serving UK judge appointed as a judge of the ECHR. It further provides that any such order must allow a judge who is a member of a judicial pension scheme to remain in that scheme, that the terms of membership must be as if he had not been appointed to the ECHR and that entitlement to benefits will be calculated in accordance with the salary as increased from time to time of the UK office which that judge holds. The order may also contain provisions as to how contributions will be collected from the UK judge. This is needed because contributions towards dependants' benefits are normally deducted from the judicial salary received by a judge, but the judge serving in the ECHR will not be receiving a salary in this country so that alternative arrangements will be needed for the collection of these contributions.

§ There is also power to amend relevant judicial pension legislation in order to facilitate the proper administration of a scheme. This will enable the modification or disapplication of pre-existing legislative provisions, should this prove necessary, to enable suitable administrative arrangements to be made to give effect to the policy. It is not envisaged that this power will be needed to any extent, if at all, but the pensions legislation is inherently complex and such a power—limited for this purpose—seems prudent. These amendments together will ensure that a UK judge appointed to the ECHR will in due course receive the same pension as if the ECHR appointment had not taken place. I believe that this will remove what might have been a powerful disincentive for some of our most able and highly qualified candidates from the judiciary to seek appointment to the ECHR. I beg to move.

§ Lord Ackner
My Lords, in Committee, in my capacity as judicial shop steward emeritus, I raised the amendments which have resulted in my noble and learned friend the Lord Chancellor tabling on Report the amendments which he has just described. They were 414 important amendments because they dealt with a constitutional matter of some importance. Section 12(3) of the Supreme Court Act 1981 states, Any salary payable under this section may he increased, but not reduced, by a determination or further determination under this section". Pension is but deferred salary. I was concerned that the judicial pension, whose value has been much reduced by the judicial retirement and pensions Bill by requiring a judge to work 20 years instead of 15 years to achieve his 50 per cent. pension—totally out of line with pension provisions in Commonwealth jurisdictions—should not be further prejudiced if a judge were to accept an appointment at the Strasbourg Court. I therefore raised the objection that if the noble and learned Lord the Lord Chancellor were to remove the protection of Section 12(3), something must be put in its place.
I am deeply grateful to the noble and learned Lord the Lord Chancellor for having fought my battle with those who normally would defeat the claim for the judicial pension to be safeguarded, and to have fought it so well, so ably and so effectively. It is an indication of the generosity of the noble and learned Lord the Lord Chancellor, although there are occasions when it is hidden so deeply that one does not immediately bear it in mind. I am most grateful.

§ Lord Lester of Herne Hill
My Lords, during the period since the creation of the European Court and Commission of Human Rights we have been fortunate in the quality of members of both institutions coming from this country. One recalls, for example. the very first British judge to that institution, the great international lawyer, Lord McNair, who was, I believe, the grandfather of my noble friend Lord McNair. One also recalls Sir Humphrey Waldock and Sir James Fawcett, who was, I believe, for 20 years a member of the European Commission of Human Rights. One comes to the present incumbents. I mention judges such as Sir Vincent Evans. and now Sir John Freeland, and Nicolas Bratza QC as the commissioner. They have all performed a vital public service, not always as well recognised in this country as it might have been. Most of them have been former senior legal advisers to the Foreign Office. None of them has ever been a serving British judge, or former British judge. In some ways that has been a pity because a more significant judicial contribution might have been made if we had had some of our great British judges serving in the European Court. There would have been a contrast with membership of the Court of Justice of the European communities.
I very much welcome these provisions which will enable effect to be given to some important principles. First, it is essential that members of this new European Court of Human Rights, who will become full time from November when the Eleventh Protocol comes into force, should be of the highest calibre, of outstanding quality. Some of us are concerned that with such a large court of perhaps 40 judges drawn from across Europe—east, west and central—it would be difficult to obtain judges of the highest quality.
415 Secondly, as the noble and learned Lord the Lord Chancellor has indicated, it is important that we ensure that there are no disincentives so that distinguished British jurists, whether drawn from the Bench or otherwise, are not deterred from forming that critical mass of intellectual and moral leaders who are needed if the new court is to succeed.
I therefore think that these are important provisions. They will facilitate those objectives. I ask this question only out of curiosity. Do we have similar provisions, or are they needed in respect of members of the European Court of Justice to ensure similar treatment? In my ignorance, I do not know whether similar provisions are in place. In practice, there seems to be no such problem for the European Court of Justice. It has always had judges of outstanding quality who have often sat as judges in this country before going to Luxembourg. These provisions apply only to the Strasbourg court for the good reason that the Bill is concerned only with the European Convention.
I apologise for taking so long in explaining the provisions. I welcome the amendments.
On Question, amendment agreed to.

§ 9.15 p.m.

§ The Lord Chancellor moved Amendments Nos. 63 and 64: Page 10, line 26, at end insert— ("( ) Schedule (Judicial Pensions) makes provision about judicial pensions in relation to the holder of a judicial office who serves as a judge of the Court."). Page 10, leave out lines 28 to 30.

§ The noble and learned Lord said: My Lords, I beg to move Amendments Nos. 63 and 64. If Amendment No. 64 is agreed to I cannot call Amendment No. 65.

§ On Question, amendments agreed to.

§ Clause 20 [Orders under this Act]:

§ Lord Williams of Mostyn moved Amendment No. 66: Page 11, line 8, after ("1(4)") insert 7(9A)").

§ On Question, amendment agreed to.

§ The Lord Chancellor moved Amendment No. 67: Page 11, line 10, after (" 18(6)") insert ("or Schedule (Judicial Pensions)").

§ On Question, amendment agreed to.

§ Clause 21 [Interpretation, etc.]:

§ Lord Henley moved Amendment No. 67A: Page 11, line, 26 at end insert ("and includes any Act of the Parliament of England or of the Parliament of Scotland passed before 1st May 1707 ").

§ The noble Lord said: My Lords, the amendment was put down at the suggestion of my noble and learned friend Lord Mackay of Drumadoon. It is merely a probing amendment. I hope that the noble and learned Lord the Lord Chancellor will be able to satisfy me on this matter.

416

§ He will see that in the Bill the words "public general Act" are used. Our concern is whether the phrase "public general Act" covers Acts of Parliament from the English Parliament or the Scottish Parliament passed before the Act of Union in 1707. I am advised that there are still some Acts on the statute book and could therefore be relevant. We were unsure whether "public general Act" covered those cases. An assurance from the noble and learned Lord that the words cover Acts of Parliament passed by both those Parliaments before 1707 would satisfy us. I beg to move.

§ The Lord Advocate (Lord Hardie)
My Lords, I think it is fair to say that we are dealing here with what is a purely drafting point. This amendment would insert into the definition of primary legislation in Clause 21 of the Bill an express reference to Acts of the Parliaments of England and Scotland passed before the union of England and Scotland in 1707. As the noble Lord opposite explained, the concern is to ensure that such Acts are treated as primary rather than subordinate legislation under the Bill. At present the Bill defines primary legislation as including a "public general Act" but it does not further define what is meant by a public general Act. In fact the term is nowhere defined in legislation.
The question whether the definition of primary legislation should expressly include references to the various pre-union Parliaments was one which the Government considered before the Bill was introduced.
The issue arises not only in connection with the former Parliaments of England and Scotland, to which this amendment refers, but also in connection with the Parliament of Great Britain which existed in the period from 1707 to 1801; that is, after the Union of England and Scotland and before the union with Ireland, and in connection with the Parliament of Ireland in the period before 1801.
As noble Lords may be aware, the treaties of union themselves affirm the continuing validity of former legislation so far as not altered or repealed by the successor Parliaments. Article XVIII of the Preamble to the Union with Scotland Act 1706, for example, preserves (with certain exceptions) the validity of all, laws in use within the kingdom of Scotland". Similarly there is no doubt that pre-1801 Acts of the Parliament of Ireland form part of the body of legislation in Northern Ireland. That follows from Section 1, Eighth Article of the Union with Ireland Act 1800 and the express savings provided by Section 61 of the Government of Ireland Act 1920.
We concluded that there was no need to make express provision on the point raised. The Bill invites a judge presented with a piece of legislation to conduct a very simple exercise to decide whether the legislation is primary or secondary. There can be no serious risk that the enactments of old Parliaments which preceded the United Kingdom Parliament in its present form could ever be regarded as subordinate legislation. In our view the enactments of those Parliaments must be primary 417 legislation for the purposes of this Bill. In the light of that explanation I invite the noble Lord to withdraw his amendment.

§ Lord Henley
My Lords, I have every intention of withdrawing the amendment, and I am grateful to the noble and learned Lord the Lord Advocate for staying here all evening purely to deal with this one amendment. I can only offer an apology to the House that, as a Peer of Ireland as well as a Peer of the United Kingdom, I failed to include Acts of the Irish Parliament and Acts of the Parliament of Great Britain that existed between 1707 and 1801. I shall not return to this matter at Third Reading. I believe that the assurances given to me by the noble and learned Lord are perfectly correct. However, should the issue arise again, I shall remember, when putting forward such amendments, to include other Parliaments as well as those that I did include. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68 not moved.]
Clause 22 [Short title, commencement, application and extent]:
[Amendment No. 69 not moved.]
Schedule 1 [The Articles]:
[Amendments Nos. 70 and 71 not moved.]
[Amendments Nos. 72 and 73 not moved.]

§ The Lord Chancellor moved Amendment No. 74:

§ After Schedule 2. insert the following new schedule—

§ ("SCHEDULE JUDICIAL PENSIONS

§ Duty to make orders about pensions

§ 1.—(1) The appropriate Minister must by order make provision with respect to pensions payable to or in respect of any holder of a judicial office who serves as an ECHR judge.

§ (2) A pensions order must include such provision as the Minister making it considers is necessary to secure that—

(a) an ECHR judge who was, immediately before his appointment as an ECHR judge, a member of a judicial pension scheme is entitled to remain as a member of that scheme;
(b) the terms on which he remains a member of the scheme are those which would have been applicable had he not been appointed as an ECHR judge; and
(c) entitlement to benefits payable in accordance with the scheme continues to be determined as if, while serving as an ECHR judge, his salary was that which would (but for section 18(4)) have been payable to him in respect of his continuing service as the holder of his judicial office.

§ Contributions

§ 2. A pensions order may, in particular, make provision—

(a) for any contributions which are payable by a person who remains a member of a scheme as a result of the order, and which would otherwise be payable by deduction from his salary, to he made otherwise than by deduction from his salary as an ECHR judge; and
(b) for such contributions to be collected in such manner as may he determined by the administrators of the scheme.

418

§ Amendments of other enactments

§ 3. A pensions order may amend any provision of, or made under, a pensions Act in such manner and to such extent as the Minister making the order considers necessary or expedient to ensure the proper administration of any scheme to which it relates.

§ Definitions

§ 4. In this Schedule— appropriate Minister" means—

(a) in relation to any judicial office whose jurisdiction is exercisable exclusively in relation to Scotland, the Secretary of State; and
(b) otherwise, the Lord Chancellor;

§ "ECHR judge" means the holder of a judicial office who is serving as a judge of the Court;

§ "judicial pension scheme" means a scheme established by and in accordance with a pensions Act;

§ "pensions Act" means—

(a) the County Courts Act (Northern Ireland) 1959;
(b) the Sheriffs' Pensions (Scotland) Act 1961;
(c) the Judicial Pensions Act 1981; or
(d) the Judicial Pensions and Retirement Act 1993; and

§ "pensions order" means an order made under paragraph I.").

§ On Question, amendment agreed to.

§ Lord Simon of Glaisdale moved Amendment No. 75: Line I, leave out ("further") and insert ("domestic").

§ The noble and learned Lord said: My Lords, this is an amendment to the Title of the Bill. I moved it in the same form in Committee very late at night. I had hoped to move it before a full House this evening. There is nobody on the Government Back-Benches, so far as I can see. I believe that the noble Baroness, Lady Williams, has been faithful on the Liberal Democrat Benches, and there may be somebody else. I did the noble Lord, Lord Monkswell, a disservice; I did not see him enter the Chamber. As usual, the noble Lord, Lord Renton, has rightly come to invigilate on questions of statutory construction.

§ Tribute has rightly been paid to the draftsmanship and construction of the Bill. However, even with the best drafted measure the courts can be assisted by indications as to how it should be interpreted. There need not necessarily be an ambiguity. There is quite often matter for argument.

§ There are two, or possibly three, ways of indicating how a measure should be interpreted. The first is by examining the whole of the enacting provisions; but in addition (and secondly) in appropriate cases a purpose clause can be introduced. In my respectful submission, this was a very suitable measure for the inclusion of a purpose clause, and the noble Lord, Lord Mishcon, proposed one which met with general affirmation. He withdrew it in order to consider the matter further before Third Reading. It is erroneously reported in Hansard that the amendment was negatived. It was not, it was withdrawn.

§ The third method, by no means mutually exclusive with the other two, is an indication in the Long Title of a Bill. There is this to be said in favour of such an indication of construction, that unless the Long Title 419 does that, it serves no useful purpose at all. A few sessions ago we had a Long Title that ran to three-quarters of a page or even longer. We moved an amendment reducing it to four lines and finally compromised on seven lines. But even then it served absolutely no purpose. It merely reiterated what the table of contents said more conspicuously.

§ In the absence at the moment of a purpose clause, this is very much a case where the Long Title can be slightly amended in order to give an indication. At present, it reads: An Act to give further effect to rights and freedoms guaranteed tinder the European Convention".

§ My noble and learned friend the Lord Chancellor said quite correctly that that was perfectly true. So it is; it is a truism. There are two directions in which the Bill gives further force to the Convention. One is that it amplifies rights already given by our common law and contributes to the European Convention. The other is that it makes the Convention rights enforceable against public authorities in our own courts. But that is clear from the contents of the Bill.

§ What a court of construction wants to know is whether it is intended that the Convention rights should apply in domestic law. That is precisely what the White Paper said and what my noble and learned friend has said on many occasions. So all I suggest is that in place of "further effect", the Long Title should read "domestic effect". That will mean something to a court of construction, whereas the Long Title at the moment means nothing at all. I beg to move.

Lord Renton
My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has put forward a case which deserves serious consideration. The word "further" is somewhat vague anyway. Further to what? We are in effect giving our domestic courts the jurisdiction relating to the rights and freedoms guaranteed under the European Convention on Human Rights. It seems to me to be a more accurate way of describing the contents of the Bill and a more precise way to use the word "domestic" than to use the word "further".
I hope that I am in order in saying that I am glad that the noble and learned Lord also raised the question of what happened to Amendment No. 1 moved by the noble Lord, Lord Mishcon, which, as he said, received a great deal of support right across the House. I was one of those who keenly supported it. I am not in a position to say whether it was actually negatived or negatived by mistake. However, when I saw in Hansard that it had been negatived, I was extremely surprised..

§ 9.30 p.m.

§ Lord Lester of Herne Hill
My Lords, I realise that when it comes to questions of statutory interpretation of Long Titles, purpose clauses and statements of principle, speaking after the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Renton, I am a young boy among wise men. Therefore I shall say extremely little on the subject. However, I should like to say something.
420 First, Sir Geoffrey Palmer, a former Prime Minister of New Zealand, when explaining the New Zealand Bill of Rights Act, said something rather wise. He said, "Bills are made to pass". I use that phrase when I hear critics of this Bill saying that it has diluted the milk of pure principle in some way.
I am sure that the Government chose the words of the Bill carefully to enable the Bill to pass. That may explain some curious and ingenious formulae that have been used in the Bill. I suspect that the Long Title is defined as An Act to give further effect to rights and freedoms". rather than, to give domestic effect to rights and freedoms". not because of some doctrinal or theological objection to the notion of giving domestic effect. That is already made clear in the White Paper, as I hope the noble and learned Lord the Lord Chancellor will agree when he comes to reply. It is clear from the White Paper that this measure is designed to give domestic effect to convention rights and freedoms; it is designed to incorporate the convention into domestic law.
I cannot read the substance of the Bill in any other way. The only matter which gives me cause for concern and made me decide to put my name down in support of the amendment is that earlier in the debate the noble and learned Lord the Lord Chancellor said something which I found extremely curious. He said something along the lines, "This Bill will not incorporate convention rights into the substance of domestic law". That seemed to me to be an almost mystical concept which I could not understand. It seems to me that if the Bill does anything clearly, it incorporates convention rights into the substance of our domestic law and it does so in a number of ways.
One way is by commanding judges to read statutes, where possible, to comply with convention law. That is where it embodies convention rights into our statute law. Another way is that it requires judges to be a public authority bound by the convention and therefore interpreting and applying the common law and statute law to give effect to convention rights. Therefore in those ways it surely does incorporate convention rights into the substance of our domestic law. If we can agree about that, it will go a long way towards assuring me that, whatever the reasons for those curious words in the Long Title, at least it is quite plain that the central object and purpose of this Bill is to give domestic effect to convention rights and freedoms. If that is clear it may well be that this amendment is otiose.
If there were any ambiguity about it then I believe that the noble and learned Lord, Lord Simon of Glaisdale, has the better of the argument. There is a powerful case. I wish that the matter had been dealt with by a purpose clause and at an earlier stage. This is the last amendment that we shall consider today. Before we say farewell to this Bill it is important that this matter is put beyond any doubt. I therefore support the amendment.

§ The Lord Chancellor
My Lords, the noble and learned Lord, in moving this amendment, which is the 421 last that we have to consider at Report stage, took the opportunity to remark that the House was not as fully attended as it might be at this hour. In the dying moments of Report stage on this Bill, I shall give the noble and learned Lord an additional opportunity to have the last word by rebuking me yet again on my unyielding disposition in relation to this jewel of a Bill.
I do not believe that there is much that I can add to what I said when Amendment No. 75 was debated at Committee stage. The word "further" is included in the Long Title because, in our national arrangements, the convention can, and is, already applied in a variety of different circumstances and is relied on in a range of ways by our own courts.
The Bill will greatly increase the ability of our courts to enforce convention rights, but it is not introducing a wholly new concept. As I have said before, the Bill as such does not incorporate convention rights into domestic law but, in accordance with the language of the Long Title, it gives further effect in the United Kingdom to convention rights by requiring the courts in Clause 3(1), So far as it is possible to do so to construe—in the language of the statute, to read and give effect to—primary legislation and subordinate legislation in a way which is compatible with the convention rights. That is an interpretative principle.

Lord Renton
My Lords, I am very reluctant to interrupt the noble and learned Lord. I believe that he said just now that it was an Act to give further effect in the United Kingdom, to rights and freedoms guaranteed under the European Convention on Human Rights". The words "United Kingdom" do not appear in the Long Title. It merely says, "further effect". If we say, "domestic effect" we make it clear that it is in the United Kingdom. The phrase that the noble and learned Lord has used would then be implemented.

§ The Lord Chancellor
My Lords, when I used the words "in the United Kingdom" I was not reading from the words of the Long Title. The words in the Bill are, An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights". But I have not conceded that this Bill claims any extra territorial effect. I do not believe that it is a great flight of the imagination to read it as meaning in the United Kingdom.
I have to make this point absolutely plain. The European Convention on Human Rights under this Bill is not made part of our law. The Bill gives the European Convention on Human Rights a special relationship which will mean that the courts will give effect to the interpretative provisions to which I have already referred, but it does not make the convention directly justiciable as it would be if it were expressly made part of our law. I want there to be no ambiguity about that.

§ Lord Lester of Herne Hill
My Lords, I am extremely grateful to the Lord Chancellor; but I wonder whether he would mind explaining the difference 422 between requiring our courts (as a public authority) to give effect to the convention; requiring our courts where possible to interpret Acts of Parliament to comply with the convention; requiring our courts in developing the common law to have regard to the convention rights, and requiring our courts to give effective remedies where there is a breach of those rights. What is the difference between all of that and incorporating the convention? What else would be needed over and above all that in order to incorporate the convention'?

§ The Lord Chancellor
My Lords, this is fast becoming something of a theological dispute and I should like to bring it to a conclusion as quickly as I may. The short point is that if the convention rights were incorporated into our law, they would be directly justiciable and would be enforced by our courts. That is not the scheme of this Bill. If the courts find it impossible to construe primary legislation in a way which is compatible with the convention rights, the primary legislation remains in full force and effect. All that the courts may do is to make a declaration of incompatibility.
I have a feeling that in these dying moments of Report stage we are behaving in a way in which judges sometimes behave at the end of a very long case. It is almost as if they cannot bring themselves to depart from the case and to be left to consider it themselves, and question after question continues. I have given the best argument that I may.

§ Lord Simon of Glaisdale
My Lords, I am quite satisfied that my noble and learned friend has given the best answer that can be given. We can therefore leave this to a later stage or to the other place.
I am most grateful for the cogent support that I have received on this amendment. The noble Lord, Lord Lester, was altogether too modest. His intervention was extremely powerful. I am particularly grateful to the noble Lord, Lord Renton, who is such an authority on statutory interpretation—not only in himself but because he comes trailing the clouds of glory of the Committee on Preparation of Legislation. The final word was said by him: further effect? What further effect? That is left entirely at large. There is no guidance to the courts at all.
My noble and learned friend said that this Bill is not intended to incorporate the convention into our domestic law. That is at variance with various points that have been made, but so be it for the moment. The amendment to the Long Title does not suggest that it should be. All that it seeks to do is to give "domestic" effect to the convention rights and that is incontrovertibly what it does. However, it is now nearly a quarter to ten, and I am 87 years of age, so I claim leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ House adjourned at seventeen minutes before ten o'clock.