§ 3.37 p.m.
§ Mr. James Kilfedder (Down, North)
I beg to move,That this House urges HM Government to recommend the setting up of a Royal Commission to investigate and report upon the subject of a Bill of Rights extending to the whole of the United Kingdom.I do not believe that this nation can refrain any longer from taking the historic and significant step of placing the liberties of its citizens in the safe keeping of a Bill of Rights. I am not advocating a change for the sake of change. Far from it. The common law is supposed to protect the rights of the individual. But those rights are being steadily eroded. Often the ordinary individual does not know that those rights have diminished over the years.
The facts of life in this country today are that the Government have infiltrated, sometimes with dire consequences, into every home of the land and affected the lives of every citizen for good or ill. A great mass of legislation emanates from Parliament every year. The rush of legislation is such that procedural devices such as guillotine motions have been used to force through controversial legislation without proper examination, discussion and amendment. Principal legislation is now subject to the same kind of criticism which we have always levelled against delegated legislation. The great bulk of administrative decisions derive from legislation that has never even been debated in this House.
We have seen an extension of the power and influence of an unbridled bureaucracy which could never have been conceived 20 or 30 years ago—even in wartime conditions. At every turn our lives are circumscribed by the edicts of administrators. I am not referring only to the Civil Service, although we live nowadays in what is probably the most highly centralised State in the world. Permanent officials in local government and on statutory bodies of all kinds wield an immense power over our daily lives. This is not unique to the public sector. It applies to the private sector as well.
The experience of large national and multinational industrial concerns shows 33 that the growth of the arrogant bureaucratic mentality is by no means confined to Government agencies. Central Government domination over all aspects of the decision-making process in the public and private sectors is firmly established, to the detriment of the ordinary citizen.
Under local government reorganisation, the size of local government areas was increased and, in the search for greater efficiency, local councils have been left with less effective autonomy than they had before. The result is that permanent staff in local government and statutory boards paralleled the Whitehall bureaucracy at countless mini-Whitehalls throughout Great Britain. Most of these changes have been brought about by economic and social forces and no doubt were regarded as inevitable, indeed necessary. Although we have, thank goodness, greater security of employment and greater assurance of a reasonable standard of living, they have been achieved at considerable cost in freedom.
The response of Parliament to these great changes in the fabric of our society has been to protect the people from exploitation and hardship. Every liberty must be balanced. We should not like to see restored the liberty of people to suffer, as they suffered decades ago, from malnutrition and hardship. Provision has been made, for instance, for equal pay, for equality between the sexes and for industrial legislation on hours and safety at work. In Northern Ireland people have the right of direct access to a Commissioner for Complaints when they feel aggrieved by the action of a local authority or other public body, though there are some limitations, unfortunately, even to this protection.
Most of the industrial and social legislation in the United Kingdom provides for an appeal procedure, generally of a fairly informal kind. We are all familiar with the tribunals on social security benefits, with arbitration procedure under the Industrial Courts Act 1919, with the Lands Tribunal, planning decisions procedure, and so on. All those are valuable, they are meant to dispose of the question of a persons' rights in specific circumstances, and, except in the event of a mistake in law the person generally has no right of appeal to the courts. This denial of a right of access to the 34 courts is shameful. As a Member of Parliament, I know of blatant examples in which justice has not been done on the facts.
We have proceeded by ad hoc measures and the result is a patchwork of safeguards which is uneven in practice. An effective legal remedy for the protection of fundamental rights is missing. We have not grasped the nettle of providing by law entrenched protection of fundamental rights. Neither the Universal Declaration of Human Rights nor the European Convention on Human Rights has resulted in any guarantee of fundamental rights in this country. The United Kingdom ratified the European Convention 24 years ago, and although the other signatories to it have incorporated it in their domestic law, we have not done so. It has been argued that, because of Article I of the Convention, it is not necessary to do so. Article I reads:The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention.It is argued that British people should be able to invoke the provisions of Section 1, and I understand that many of them have done so. More complaints have been laid before the Strasbourg court by British citizens than have been laid by citizens of any other country. That is significant. Proceedings before the Strasbourg court are notoriously slow. The first British case determined by it was determined early this year, but the complaint had been lodged as long ago as 1970. No one would deny that a speedy remedy is essential when dealing with the question of fundamental human rights. A slow procedure in these circumstances is probably a denial of a fundamental human right.
The European Court is outside the jurisdiction of this country and is external to the British courts, yet it has power to comment on legislation passed by the British Parliament and on the actions of British Government Departments. The fact that the writ of the European Court runs in the United Kingdom is undeniable, for as recently as 6th March the Home Secretary announced in the House that he would give effect to the ruling of the court in the Golder case. I do not know whether any action has been taken.
35 It is not good enough that British citizens must go to the Court of Human Rights in Strasbourg. The protection of their freedom should be the responsibility of the British courts, but, as Lord Justice Scarman has said, that is not possible until our domestic law incorporates the rights specified in the European Convention. I think that he went on to say that in the absence of legislation to give effect to the convention, the British courts are helpless to uphold the people's fundamental rights.
I am convinced of the need in this country for a Bill of Rights. Discussion of this question has been hampered by the technical point about how to entrench fundamental law in an unwritten constitution. I hold no brief for the solutions which have been suggested by various people over the years, but my personal inclination is to look at the Canadian Bill of Rights. However, that is better left for close examination by a Royal Commission, for which I have asked in the motion. The aim should be to protect the Bill of Rights from subsequent repeal. Therefore, some form of entrenchment would have to be devised.
I do not wish to labour the novelty of the British situation in which Parliament can legally abrogate the rights of citizens, as happened, perhaps accidentally, in 1971 when a large number of Commonwealth citizens living in this country were declared to be illegal immigrants, though at the time of their arrival their entry was legal. Under a Bill of Rights such as that which I envisage such retrospective legislation would be contrary to a fundamental right. At present, retrospective legislation is permissible. In the last Finance Act the Government introduced the hardship of retrospective legislation in respect of television hire-purchase agreements. They increased the financial burden into which a person had entered by contract after considering how much he could afford to pay over the years. We should all disapprove of that.
To return to the question of the Immigration Act, it is worth reading the views of Lord Salmon in his dissenting judgment in the case of Azem v. the Home Secretary in the House of Lords in 1973. He said:Whether or not an Act should be retrospective in its effect is a matter for the decision 36 of Parliament alone. It depends essentially on legislative policy. … I feel bound, however, to express concern that the draftsmen of this Act should have chosen to achieve its retrospective effect through a labyrinth of verbiage which may well have been as perplexing to many of those who had to consider it in Parliament as it undoubtedly was to those whom it may have deprived of their constitutional rights.In his judgment he continued by saying:I do not consider that the fact that the—Immigration Act of 1971—is not criminal in character affords any reason for giving Section 33(2) an extended meaning. If that legislation had created criminal offences, it would, at any rate, have given the appellants the protection that they could not have been deported except on the recommendations of a court of law. As far as they are concerned, if Section 33(2) is given an extended meaning—which in fact is what the majority of the court decided—the Act did something far worse than creating a criminal offence. It imposed on them the liability to be imprisoned and deported by the executive in place of the right which they had previously enjoyed to live here and to go free.Under the common law there is the long cherished right of personal liberty. Therefore two conditions should exist—either freedom from arrest, or arrest. Now there seems to be an intermediate stage of assisting the police with their inquiries, which is a form of detention.
The May edition of the Criminal Law Review contains an article on arrest, detention and compulsion which is worthy of careful examination. The article, by Mr. David Lannan, opens with these sentences:Something rather disturbing has recently been happening to the law relating to personal freedom and arrest. There seems to be creeping into our law an idea that the policemen's duty to bring offenders to justice arms him with the powers over and above those conferred on him by the law of arrest.He goes on to say:The clarity of this principle"—that there is no power to detain merely for questions or pending inquiries—has become clouded by recent decisions.He mentions first the case of Donnelly and Jackman of 1970, where Donnelly was walking along a pavement. A police officer asked him whether he could have a word with him. Donnelly ignored the request and made it clear that he did not wish to speak with the officer. The officer touched Donnelly on the shoulder, with 37 the intention of stopping him. Donnelly struck the policeman with some force and was arrested for assaulting a policeman in the course of his duty. Subsequently the divisional court held that Donnelly was guilty of the offence. I shall not deal with the other cases mentioned by the author of the article. However, I should like to refer to his final remarks. He said:In so far as the cases suggest that there is a power to use compulsion short of detention there is no satisfactory way of distinguishing them from the detention cases and they must be regarded as wrong …. On any view these cases are unsatisfactory and need reconsideration. The laws of arrest mark the legal balance between civil liberty and compulsory powers for the institution of a criminal process.I can give only a few examples in the short time available to me. I should like to refer to credit. In modern society many people depend on their creditworthiness for mortgages, business deals and hire purchase. It is totally wrong that a person should be found not to be creditworthy and given no opportunity to show whether the assessment was mistaken or inaccurate. Behind the scenes the applicant for credit may be weighed in the balance by anonymous men and found wanting. He has no redress against the commercial decision.
Most of us could cite cases where a person has been blackballed and prevented from obtaining credit. For example, I heard of a case recently where a person had belatedly paid a debt in his capacity as guarantor, owing to a delay in tracing him as he had changed his address. He was listed as a risk on a confidential report which went out to all the hire-purchase companies, banks and businesses. Over the years they wrongly refused him credit facilities until he discovered the reason why he met this brick wall. That man had paid the debt. He was not a risk. That is the kind of case we face today.
Prejudice to the citizen does not end there. Information is collected officially and stored in computer data banks. What right of redress has the citizen whose confidential details have been revealed to other persons, as we know happens from time to time?
I feel even greater alarm at the activities of the private police forces such as Securicor. At airports the Securicor per- 38 sonnel become more arrogant the longer they have control over the security checks of passengers. Recently at London Airport one lady described the persons concerned as behaving like the Gestapo. That was an exaggeration. However, there is no doubt that the conduct of some of them is inexcusable.
Her anger was aroused by the primitive conditions which exist at London Airport for the handling of passengers waiting to travel by TriStar to Northern Ireland. I do not know whether the TriStar is used on any other route inside the United Kingdom, but it is a disgrace that people should be crowded together, especially women, children and babies, in conditions which anyone else would refuse to accept. I am a quiet person. I made a protest to the person who said that he was in charge of Securicor at London Airport at that time. The plane was delayed, as happens frequently. I said that I wanted to go out to buy a snack. He said to me "You go out, and I shall take everybody out to the security check". As he said that he relished the pleasure of putting these people through that procedure, and daring me to go out. I do not know why we should suffer these people to acquire these powers.
§ Mr. Frank Tomney (Hammersmith, North)
The hon. Gentleman exaggerates beyond the bounds of credibility. We all know the conditions at modern airports in which people have to queue for planes. They are herded in special pens. However, that is not a permanent condition, and we should not pretend that it is. We know why security people were engaged. The reason is the Northern Ireland situation. Those people have to be extra careful, because of hijacking. If there is any departure from the accepted line of procedure there might be trouble. Therefore this criticism is a little unfair.
§ Mr. Kilfedder
The hon. Gentleman has contradicted himself. He said that the security restrictions were because of the Northern Ireland situation and then he talked about hijacking. There has been no hijacking yet. The hon. Gentleman's intervention proves that he has never suffered these conditions.
§ Mr. Kilfedder
I shall not give way again to the hon. Gentleman. The people of Northern Ireland will not suffier these conditions much longer. I am speaking about a Bill of Rights relating not only to Northern Ireland but to the whole of the United Kingdom.
Only last week at Aldergrove Airport a member of a private police force—I do not know whether of Securicor—purported to arrest a passenger whose only fault lay in wishing to say something to his aunt after he had been searched. The officer placed his hands on the passenger's arm or shoulder and was about to detain him. From where do Securicor men and members of other private police forces acquire these powers? I accept that we must have security precautions, but they must not be used as an excuse for intolerable conditions.
§ Mr. Kilfedder
I am not giving way. I find totally unsatisfactory the present infringement of the right to privacy. I know of patients and out-patients in our teaching hospitals who, without having their permission sought, are exposed to the view not only of the doctor but of a number of medical students who crowd around the bed. That is not right. It is highly irresponsible for doctors or those in charge of hospitals not to protect patients who are often too ill to make their own protest. Every patient should be informed that he has a right to refuse to be medically examined in front of others.
My final example is of local authorities who open up rubbish dumps close to residential areas. Only yesterday I heard of a rubbish dump being opened within 400 yards of a newly-built bungalow. The elderly person who lives in that bungalow is suffering the inconvenience, smell and health hazard of that rubbish dump. Dumps have been opened in other places as well, close to people's houses. That, again, is an infringement of a fundamental right.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
I am sympathetic to much of what the hon. Gentleman says, but how would he seek to define the rights enshrined in a Bill of Rights in such a way as to prevent the distress caused to the person to whom he refers by the siting of a local authority rubbish dump? What general right does 40 the hon. Gentleman envisage could be embraced in legislation to apply to that?
§ Mr. Kilfedder
He faced this great difficulty. It has been said that wherever there is a wrong there is a remedy, but we know from experience that there is not always a remedy. It is not for me now to go into how these matters can be dealt with in detail. It is properly within the province of a Royal Commission, and I hope that the Government will establish a Royal Commission.
We do not have sufficient legal aid to protect people who suffer a wrong and who seek in a civil action to get justice. The same applies in criminal cases, where magistrates often do not inform the defendant of his right to apply for legal aid, so that cases are often dealt with without the accused person being represented by a solicitor or counsel.
There is much talk of the devolution of central government authority to Scotland, Wales and Northern Ireland. Perhaps one day this Parliament will have to shed some of its work load to other English regionally elected institutions. However that may be, demarcation disputes are bound to arise from time to time between the regional assemblies and Parliament, or between the regional administrations and Whitehall, so that the courts and judges will be involved in determining the limits of authority. Inevitably, our judicature will have to determine disputes which some would regard as political matters. Before that situation arises, I urge the House to consider the possibility that Britain could achieve, without loss of her great traditions and without any diminution of the sovereignty of Parliament, better legal protection for fundamental human rights.
In view of what I said about the Tri-Star, I should perhaps say that I should not have been here for the beginning of the debate but for the kind offices of the staff of British Airways who made sure that, having arrived at London Heathrow at 3 o'clock, I reached the House at 3.30 p.m.
§ 4.7 p.m.
§ Mr. Edward du Cann (Taunton)
I am delighted to learn that the hon. Member for Down, North (Mr. Kilfedder)—my hon. Friend, if I may say so—was so assisted by British Airways. It would have been a tragedy if he had been prevented from being here to move his motion, on which we all congratulate him —not merely on his good fortune but also on his choice of subject.
As my hon. Friend illustrated, it is a matter of fact that individual freedom in this country is being steadily eroded, as surely indeed as water wears away a stone. Of course, we do not live in chains. It is true that we can speak and write as we please provided that we are not blasphemous, obscene or seditious, although many of us think that the bounds of what is allowable are being stretched a little too far in all these regards today. True, there is no imprisonment except for a clear breach of the law. True, there are no secret police. True, we enjoy a degree of personal freedom which is rarely found outside the British Commonwealth or the United States. Yet there is, as the hon. Gentleman indicated, a widespread unease and a growing concern about the impact of modern life upon the individual.
The needs of society and, therefore, the operations of public authorities have bceome infinitely more complex than they were 20 or 50 years ago. Fifty years ago there was almost no nationalisation—thank heavens, one might say—and little State aid to firms and persons, whereas today there is far too much. There was little apparatus of control, direct or indirect, of prices, wages and standards. Today, one might think that the consumer was almost a god. There was little control of the movement of capital, planning and the like. Indeed, as my hon. Friend pointed out so plainly, there were fewer laws, fewer regulations and fewer obligations.
In the meantime, as we all know, the two great bulwarks of protection for the rights of the citizen, parliamentary control over the executive—that is to say, the legislative and administrative acts of government—and access to the courts, have equally been subject to constant erosion, and in some respects they do not exist at all.
42 I have stated as a matter of fact in this House on more than one occasion—and I have no doubt that my right hon. and hon. Friends agree—that public expenditure, for example, is wholly outside the control of this House—if it is not out of control altogether.
It is for those reasons, because I share the general anxiety and concern of which I have spoken, that for many years I have supported the proposal to introduce a new Bill of Rights in this country, a "Little Man's Magna Carta" as it has sometimes been called. I am more than ever convinced that it is essential. As my hon Friend has indicated, there has been more than one attempt to introduce such a measure here and in another place, the latest occasion being when my noble friend Lord Arran endeavoured to introduce such a Bill in October 1970.
There has been distinguished support for such a reform of the constitution. Lord Gardiner and my noble Friend Lord Hailsham, for instance, have spoken and written impressively on this subject, not least in Lord Hailsham's articles in The Times, which were followed by interesting correspondence. But the most impressive of the recent testimony has come from Lord Justice Scarman in his remarkable Hamlyn lectures, when he said in effect, strikingly, that only if there were a new constitutional settlement embodied in a Bill of Rights could the individual be guaranteed a measure of protection from legislation enacted by Parliament in breach of human rights.
Historical pride in parliamentary sovereignty, of which we boast and of which many of us learned years ago, following the authorship of such distinguished past constitutionists as Professor Dicey, is perhaps now mistaken in the modern context, or, at any rate, so I have begun to suspect and feel.
No protection such as that which Sir Leslie Scarman advocated can be automatically derived from the parliamentary process itself. I wish it could. For example, the European Convention on Human Rights, which was ratified by the United Kingdom in 1951, has in truth almost no effect in this country. Parliament can pass, and has passed, legislation in contravention of that convention. I cannot say that my hon. Friend's example of the legislation on 43 immigration in 1971 is a sound case. The retrospective annulment of a legal settlement achieved by the Burmah Oil Company is probably a more valid example. Nor is it only a matter of Parliament ignoring that convention. The existing law does not have to conform to it.
It is surely a matter for shame that the institutions of the convention in Strasbourg have received more complaints from individuals in this country then from individuals in any other country to which the convention applies. If that were broadly known in the United Kingdom, it would be regarded as shocking.
Thus the old doctrine of parliamentary sovereignty is open to criticism both for what Parliament itself does, is inclined to do, or is able to do, and for what Parliament does not do. It is a fact that the unfettered legislative authority possessed by Parliament in these days—"elected dictatorship" I have heard it called—has become a source of anxiety to many thinking people.
As every schoolboy knows, we do not have a written constitution. In these circumstances, it must be right to examine whether we need an alternative entrenchment of individual rights in the modern context of which I have been speaking. Were we to have a Bills of Rights, it would certainly provide a first line of defence for the protection of human freedom.
In 1689, again as every schoolboy will, I hope, remember, especially those in the West Country, the tyrant was the Crown. Now perhaps it is Parliament itself, innocently, I agree, but inevitably. Every new law, every new Order in Council, whittles away freedom a little.
How many laws as a matter of fact do we now deal with in these days? I will weary the House with some statistics. The average number of Acts of Parliament over the past 10 years has been 52 a year. We must take a long period to establish an average because of the incidence of General Elections, as all hon. Members know. This year, in my opinion wrongly and unnecessarily, we shall deal with 70. The number of pages of public general Acts has averaged 1,400 a year over the 30 years from 1943. In 1973 the number was 2,200, an increase of more than 50 per cent.
Every day it becomes more difficult for the citizen to know what he may or 44 may not do. Ignorantia juris non excusat was the maxim that we were all taught in years gone by. I am not sure that that maxim is any longer a fair statement. I know that my local chief constable in Somerset, a most excellent, competent and devoted public servant, incessantly complains to me as his local Member of Parliament how difficult it is for his constables to be taught precisely what the law is.
Aggregated, the number of subjects we shall discuss on the Floor of the House this week comes to 19. That is an obvious sign of pressure in five days. If we aggregate the work that we are doing in the course of a year, or the course of a week, it will be seen that it is very formidable, and that is the obvious picture that is disclosed.
But if to that we add subordinate legislation—why it is called "subordinate" I do not know, because much of it is primary—we have 2,000 instruments a year, 1,000 of them of general application. But in 1974 there were 2,200 instruments, about half of them of general application. That means that there were 6,000 new pages of legislation additional to the 2,200 pages of Acts of Parliament of which I have already spoken.
Then there is the European legislation, again surely primary. If you go to the Vote Office, Mr. Deputy Speaker, as I am sure you do, and ask for the latest report of the Select Committee that the House has established to look into European legislation, you will find that that for 17th June, the latest to be published, was the 24th such report made to Parliament about matters that that Committee says should have the careful consideration of the House most of which have not.
Yet, as my hon. Friend said, in this Chamber we deal with no more than a fraction of the total of our work. That is not surprising, because there is more pressure on Members of Parliament and a shortage of time.
In addition to the work on the Floor of the House, there is the Committee work to do. I wonder how many right hon. and hon. Members are aware that we have already had 265 sittings of Standing Committees this Session to 1st July. I do not know whether that is a record, but I know that the number of 45 Standing Committees currently sitting is a record. To that number must be added the Standing Committees on regional affairs, the two on statutory instruments, the Northern Ireland Grand Committee and so on. The total is assuredly a record.
There is also a record number of Select Committees, no fewer than 14 sitting at present, and they have 19 sub-committees. The latest to divide itself amoeba-like is the Select Committee on the wealth tax, and the reason for its division hon. Members may think particularly sinister.
Then there are the party committees. The Conservative Party will have some 20 committee meetings this week. According to the whip, there are six meetings of all-party groups this week, and there is the CPA and the British Group of the IPU.
It is a formidable catalogue of activity. It is important to record it. The public outside the House has little comprehension of what is involved in its membership. Ordinarily that might not matter, but the public relies on two particular sentries of its interest and for the defence of its rights. It relies on the Press and perhaps on broadcasting and television, the "media" as they are called. They no longer have the full facility for doing the work that is necessary. Indeed, one could fill a whole newspaper or a whole broadcasting day on any day with a week's casebook of any individual Member of Parliament.
It is true that occasionally scandalous injustices are brought to light. That is sometimes done by devoted and competent detection. Of course, credit is due for what is accomplished. However, my point is that the net is too wide-meshed to catch but a fraction of what I regard as, and what my right hon. Friend the Member for Yeovil (Mr. Peyton) might describe as, some highly offensive stinking fish.
The other sentry is the back bencher, the supposed hero of the private cause. I suggest that physically he can no longer pace out the perimeter that he is supposed to guard. That is my point in quoting the statistics which I produced. Perhaps I have said too little about an MP's work. That is especially so when we consider the additional burdens, such as an MP's mail. The burden is even heavier than I indicated.
46 In fact, we are no longer the watchdogs that once we were and that the public trust us to be. Indeed, we cannot perform that rôle. Legislation is now produced in such quantities and the work load of Members of Parliament is so heavy that detailed inspection is a physically impossibility. I wish it were not so, but I say plainly that it is. For that reason I am sure that Members of Parliament need the weapon of a Bill of Rights to enable them to fulfil the responsibility that the public expect us to discharge. If we were to have such a Bill we should have a fine net available for our use.
A Bill of Rights would not override parliamentary sovereignty because Parliament could amend or repeal it. In parenthesis, I would say that Parliamentary sovereignty is not only a legal fact but a political matter. I believe that it would be politically very difficult, if not impossible, for Parliament drastically to cancel or amend such an Act if the Bill became an Act. The whole nation would be alert to what was proposed. Surely that is the chief safeguard that we require. I suggest that we sleep today while freedom is reduced insidiously and inexorably, and that our crime in this House is carelessness.
I should like to see a modern Bill of Rights to supplement Magna Carta, the Petition of Rights and the 1689 Bill of Rights, to which I have already referred, those old cornerstones of the constitution. Just as the 1689 Bill formed the basis of a new contract between the Monarch and Parliament, since when the power of the Crown has waned in proportion to the increase in the powers of the executive, so a new Bill of Rights would form the basis of a new contract between Parliament and the individual.
Such a Bill would seek to enhance the principle of parliamentary sovereignty in that it could stipulate that all future legislation should be submitted to an authority—for example, the Solicitor-General, the Ombudsman or a judicial committee, whatever one might think appropriate—to ensure its consistency with the Bill of Rights. Any inconsistency would then be reported to Parliament. and we would then accept or reject the recommendations of the designated authority. In either case attention would be drawn to the matter.
47 Whether or not such a Bill of Rights is the right approach, above all it seems that we need fresh clarity of thought on the subject of authority, its rights, its obligations and its limits. We also need such thought on individual freedom, its meanings and its true extent. It must be a matter of the greatest concern to Parliament that we re-establish a clear and generally acceptable body of doctrine on the fundamental issue of the relationship between the individual and the State. We need a new contract between Parliament and the individual, howsoever it is written.
The question is how we are to proceed. It seems essential that there is the agreement of all the parties in the House. If we had a Bill that was too weak it would merely restate the obvious. If we had a Bill that was overly strong it would inevitably be unacceptable to some. Let us be plain: no party has a monopoly of caring for the individual, whatever some of us—and especially some Labour hon. Members—may pretend. Nor does any party have a monopoly of the defence of freedom. This is the business of us all. I hope that out of this discussion —again, I congratulate my hon. Friend the Member for Down, North for initiating this debate—will come agreement that the matter should be inquired into fully by a Select Committee, or howsoever else, and that consideration should be given to whether existing safeguards are adequate for the protection of human rights in the United Kingdom. Recommendations should then be made in that regard.
Some may say that it will be just another Select Committee when we already have too many. I say that there is no subject which should be dearer or more significant to this House. There is no matter which is more appropriate for immediate inquiry. In this House we concern ourselves so much and so often with human affairs and life, so let us reflect, as the old questioner asked, "Who lives if freedom dies?".
§ 4.27 p.m.
§ Mr. J. Enoch Powell (Down, South)
I concur with the right hon. Member for Taunton (Mr. du Cann) in that my hon. Friend the Member for Down, North (Mr. Kilfedder) has performed an 48 important service in bringing this matter before the House.
There are from time to time in politics "South Sea Bubbles". In such instances projects of an undefined character, projects of which the details are to be revealed later as the South Sea promoters said, become the subject of unthinking and infectious enthusiasm, until the demand for them becomes almost irresistible before the content has been considered.
I think that there is some little danger of a Bill of Rights project becoming a kind of political South Sea Bubble. There is a sure way in which such bubbles can be pricked, and that is by debate in the House. Whatever defects we may have in this Chamber, a football is never quite the same as it was at the beginning when it has been kicked around here for three or four hours.
Despite an enjoyable excursus, in which my hon. Friend enjoyed my company, upon events at Aldergrove and Heathrow, my hon. Friend left no doubt about the broad definition of a Bill of Rights which he had in mind. I quote two expressions which he used which make that clear. My hon. Friend referred to a Bill of Rights as being the safe-keeping of the rights of the citizen. He regarded a Bill of Rights as in itself providing a safe-keeping for those rights. He went on to describe it later as an entrenched protection of those rights.
It is my proposition that a Bill of Rights in that sense—and I believe it is the significant sense—is incompatible with our constitution. If the word "constitution" be too vague and cloudy, I say that a Bill of Rights is incompatible with the responsibility of Government through this House to the electorate, the thing we call parliamentary democracy.
I shall not dwell upon the problem of entrenchment. My hon. Friend made it clear that he was aware of that problem Of course, if any law made by the House is to be entrenched we shall have to have two grades of law. That is something entirely unknown to us hitherto. We shall have to have a new grade of law which either Parliament cannot amend or, as it is inconceivable that we should enact a Bill of Rights incapable of being amended, it would have to be law which could be amended only upon different 49 conditions from those under which we amend all other existing law.
What conditions are those to be? Are we to require a two-thirds majority or a three-quarters majority in this House? are we to have a referendum, which I think would be popular on this side of the House, before such a Bill is to be introduced? The whole problem of entrenchment reveals the difference between the notion of a Bill of Rights in respect of the safe keeping of the rights of the citizen and parliamentary democracy and parliamentary government as we know it. However, I do not want to dwell on that problem of entrenchment, although it must not be overlooked.
§ Mr. Jonathan Aitken (Thanet, East)
Is the right hon. Gentleman aware that the Canadian Bill of Rights, which has been in existence for some years, does not have an entrenched provision and that that also applies to the Australian Bill of Rights? These are measures which are regarded as canons of interpretation by which other legislation, if it conflicts with these statutes, may be interpreted in a different way to ensure that a clash does not arise.
§ Mr. Powell
If we are thinking about a Bill of Rights in a different sense, if it is to be an improvement on the Interpretation Act 1889 or something of that kind, that is a different subject. It would not be capable of being described as something to which could be entrusted the safekeeping of the rights of the citizen and it could not be regarded as entrenched. I am grateful to the hon. Member for Thanet, East (Mr. Aitken) for bringing out one of the difficulties of this subject, namely, the fact that we must start by defining the legislation we have in mind before we can criticise it.
I wish to revert to a Bill of Rights in the sense in which my hon. Friend the Member for Down, North sufficiently defined it and illustrate, by recent experience in this House, the intolerable breach of our parliamentary responsibility and democracy which would come about. I wish to refer to two pieces of legislation within recent memory—first to the Prevention of Terrorism Act 1974, which was passed at the end of last year, and secondly to the Northern Ireland (Emergency Provisions) Act which was recently renewed by this House and which this 50 House will re-enact in the next few months. Both measures passed through this House in a remarkably short time with almost universal, if regretful, approbation and, I think I am right in saying, without a division of principle. Yet both those Acts of Parliament aimed at abrogating within the limits laid down human rights which could hardly be regarded as less than fundamental.
The Prevention of Terrorism Act took away the right of a citizen—a citizen not charged with an offence, let alone convicted of an offence—to move freely from one part of this realm to another. It is hardly possible to imagine a more fundamental right of a citizen than that—. namely, the right to move at his own will and discretion within the law from one part of the country to another. But we legislated in this House to abrogate that right. I suppose to an Englishman —1 hope that you will permit that word, Mr. Deputy Speaker, since you are a fellow Welshman—one of the first rights he thinks of as being fundamental is the right to trial by jury. But we took away the right, and we confirmed the taking away of the right, to trial by jury in a part of this realm by enacting the emergency provisions legislation for Northern Ireland.
I want to pose the case that there was in existence, say nine months ago just before that legislation, an entrenched Bill of Rights which, among other things, secured to the citizen the right of freedom of movement from one part of the country to the other and the right to be tried by jury by one's fellow countrymen. What would have happened? The legislation when passed by Parliament would have been referred to the courts as potentially inconsistent with the entrenched constitutional Bill of Rights. It is hardly possible to imagine that the courts would have failed to find a conflict and to condemn or invalidate the new legislation because it conflicted with the entrenched rights of the citizen.
§ Mr. Leon Brittan (Cleveland and Whitby)
Does the right hon. Gentleman agree that it is impossible to say, in advance of a Bill of Rights, that specific provisions in it would conflict with such a Bill? Does he agree that it is possible within a Bill of Rights to have exceptions and limitations to deal with emergency situations? Does he not further agree 51 that in the United States, which has a Bill of Rights and the most complex machinery to enforce it in the Supreme Court, legislation was ratified by the Supreme Court in the Second World War which imposed on Japanese Americans, for good reasons or bad, in an emergency situation, limitations which would make the present legislation passed by this House in respect of Northern Ireland pale into insignificance?
§ Mr. Powell
I follow the hon. Gentleman's argument and I have reflected on that matter on other occasions. However, the point which he raises will be picked up by the examination of the proposition which I was about to undertake, and I shall return to the matter later.
Let us suppose—and the hypothesis cannot be excluded—that a court found an inconsistency between the Prevention of Terrorism Act 1974 and the constitutional Bill of Rights. In that case the legislation would be invalidated by the courts. Let us consider in what position we should then be. Her Majesty's Government, supported by this House and the representatives of the people, have decided that in their view, for the protection of the citizen in the national interest, it is necessary to have such legislation, but the court rules it to be null and void. Let us suppose that a series of disasters follows which, it is believed, would have been avoided if that legislation had, as Government and Parliament wished, been on the statute book. Who is to bear the responsibility? Today we know where the responsibility lies. It lies with Her Majesty's Ministers and with us who assent to legislation or who support Her Majesty's administration. But there is no means of calling a court of law to account for having annulled that which the Executive considered to be necessary in the public interest.
Here I come more closely to the point made by the hon. Member for Cleveland and Whitby (Mr. Brittan)—a point which illustrates the profound difference between the American constitution and our own, but which still leaves the fundamental problem of responsibility untouched. Let us imagine that to meet his case the Bill of Rights says "Except in emergency the citizen shall have the right of free movement from one part of the country to another". Who is to judge of the degree and 52 type of circumstances of emergency which, in accordance with the Bill of Rights, justify the withdrawal of that personal liberty? Under the American system, it is the Supreme Court. Under our system it is this House which must be responsible. The Government and this House must be responsible to the electorate.
I wish to make no reflection upon the systems of government under which other, and particularly other friendly, countries live. But the hon. Member has assisted me in bringing out and emphasising my proposition that a constitutional Bill of Rights entrenched as a safeguard is inconsistent with parliamentary government and parliamentary democratic responsibility as we know it. So when we are engaged upon the project of a Bill of Rights in the sense in which my hon. Friend for our purpose defined it, we should be under no misapprehension as to how far it will take us.
I confess that I am uncertain, after Britain's entry into the EEC, how far hon. Members or indeed the public of this country care at all about parliamentary democracy—which is the same thing as parliamentary sovereignty, because sovereignty and responsibility to the electorate are two sides of the same thing: those who are not sovereign cannot be within the same area responsible. But if we wish to retain the essential characteristics of a parliamentary democracy as we know it, I believe that we shall find it impossible to reconcile it with the enactment of or the attempt to enact a constitutionally entrenched safeguarding Bill of Rights.
I hope that no one will think that an hon. Member who argues as I have done is not tender of the danger that this House may override or permit to be overridden liberties that it should not, or that one should imagine that the law is perfect and that amendments are not cryingly called for which would safeguard rights which at present are inadequately protected. The conclusion that I come to is that, attractive as the idea may be of having a whole package, which, once for all, as it were, secures human rights in this country, we shall find when we examine the matter that we still have to proceed painfully, gradually, partially by debate and by partial agreement, with an amendment here, a protection there, a repeal here, a reform in another place, and that unless we are prepared to sacrifice the very 53 essence of our constitution, that will be the only way in which we can proceed.
§ 4.42 p.m.
§ Mr. David Lane (Cambridge)
Today the safeguards which exist to protect the rights of the individual are weaker than at any time in this century. This is a situation which ought to alarm us all and to which we must respond. The hon. Member for Down, North (Mr. Kilfedder) has done us a great service in enabling us to debate this subject this afternoon. I congratulate him on his impressive speech, which covered a wide area. It is only sad that on a subject of such great and urgent importance we have such a very thin House this afternoon, particularly on the Government benches.
People are worried—we know this from contact with our constituents—by all manner of problems. They are worried about the growth of power in central government and the similar growth of power in local government. They are worried about something mentioned by the hon. Member for Down, North and others, the new existence of enormous corporations, particularly in the public sector. They are worried that institutions of other kinds have grown in size and remoteness as well, so that the typical constituent is desperate about where he can take his grievances and get anything effective done to protect him in his struggle against remote authority.
There are other trends which should cause us concern. There is the threat—I will not develop it further now but we are all conscious of it—to the freedom of the Press today. There is yet another problem in the continuing existence on a disturbing scale of unfair discrimination in one form or another against individuals.
Looking particularly at Parliament and at this House, we see risks, too, of the manipulation of Parliament by minorities. Here I should like to quote a few words from an article published two or three months ago in The Times, written by the hon. Member for Ormskirk (Mr. Kilroy-Silk). He is not here today but I warned him that I would raise this matter. I was horrified by certain phrases he wrote in The Times as a serious contribution to the development of our democracy, and I wish to remind the House of some of his words.
54 He said:The function of the Government … and particularly a Labour Government, is to impose its values on society. Its role is creative: to cast, so far as it is able, society in its image.A little later he wrote:Put simply what we are, or should be saying, be it ever so polite and ever so quiet, is that we are the masters now'. That, like it or not, is what politics is about. It should certainly be said firmly.In his final paragraph he wrote:What we lack, and what we must have, is a tint of arrogance …That is certainly something which the hon. Member never lacks, and I think we should reflect on the implications of some of those words, as an example of the risk of extreme views held by a minority being thrust upon the whole country.
If that shows the possible risk of excessive parliamentary action, we see, too, a trend in the opposite direction—the erosion in respect of the law, the growing tendency of people to disregard laws that they happen to dislike. This, again, is something of which we have become increasingly aware and worried in the last two or three years.
These are painful trends. It is no wonder that there are strains in our democracy today, no wonder that our constituents have this growing feeling of unease and insecurity.
All the time, related to this, is the continuous increase in the volume of legislation. Whether or not it is controversial legislation, it is certainly not getting sufficient scrutiny. This was vividly described and illustrated by figures given by my hon. Friend the Member for Taunton (Mr. du Cann). He said that we are, as it were, the sentries patrolling around the perimeter of the territory which our individual constituents rely on us to defend, and the truth is that we are not able at present, with the facilities that we have, to do this safeguarding job adequately. There is a great need—though this is a matter for debate another day—for better weapons for the individual back bench Member and better facilities of all kinds.
At the receiving end of all these uneasy trends of the last few years is the individual citizen. It is fortunate that the debate about the problem is growing compared with a few years ago, and I am 55 glad that we have this chance today briefly to carry it further.
Several hon. Members have referred to the Hamlyn lectures in which Lord Justice Scarman argued in favour of a new constitutional settlement which would include a Bill of Rights. My noble Friend Lord Hailsham also referred to the subject in May. His conclusion is that institutions which have served us well for centuries are now inadequate and need a complete overhaul. He appears to have come round to the view that the solution now may indeed be a written constitution. He envisages a self-denying ordinance by Parliament which would limit its jurisdiction and would involve some kind of entrenched safeguards for the individual against local and national authorities. He has sketched a programme for this changeover which would spread over a period of about 10 years.
Recently also my right hon. Friend the Member for Leeds, North-East (Sir K. Joseph) has advanced cogent arguments pointing out the dangers and urging the need for a Bill of Rights to protect the liberties and the livelihood of the individual citizen. He mentioned various threats to liberty concerning different aspects of our national life. He reminded us that the rule of law must begin with the individual—the individual being recognisable and society being an amorphous and remote body.
Where do we go from here? I believe that there is a need for a review of some kind—whether by a Royal Commission or by a more rapid body—of the rights of the individual citizen in relation to the State, the executive and his fellow citizens.
A number of constitutional steps are about to be taken or have recently been taken. Earlier today at Question Time there were exchanges about the Kilbrandon Report and its consequences. However, we all realise that the Kilbrandon terms of reference were limited and that that commission was able to deal with only a part of the whole problem. We now gather that the Government intend to go ahead with some sort of devolution in the wake of the Kilbrandon Report. There is to be a White Paper, and I hope that that will not confine itself to the relatively narrow terms of reference of 56 the Kilbrandon Report but will give us some idea and some lead from the Government about how we should proceed in tackling the wider problems with which we are concerned in this debate.
We have also had—almost accidentally, as it seems—the revolutionary device of a referendum. With all the tinkering that has been going on, I suggest that we need a thorough, new study starting from the point which was left by the Kilbrandon Commission and taking account of all the other recent trends and causes of the uneasiness that we feel today. I understand that some such inquiry, largely directed to the possible desirability of a Bill of Rights, is to be undertaken in the near future by the Conservative Party.
I am not saying today that the case for a Bill of Rights is proved. There are a number of difficulties. Some have already been mentioned in the debate. Another is that this would put a drastically changed rôle on the judiciary compared with the rôle that they have performed in this country, certainly for several centuries. Bearing in mind current public thinking about the judgment of judges, all of us would hesitate to advocate a major shift of power or of control of policy from the elected representatives of the people to any appointed judiciary, however distinguished.
We face, nevertheless, a dilemma about the rôle of Parliament, and it is necessary to question whether we have to accept the absolute unfettered sovereignty of Parliament, in the sense in which we are discussing it this afternoon, as an essential feature of our democracy for all time. In view of the changed situation of modern life with its complications, and of the strains that are being put upon Parliament and the consequent diminution of rights of the individual, it would be wrong to believe that the sovereignty of Parliament is a sacred cow that cannot, in any circumstances, be further interfered with.
I remind the House of the vivid phrase used in a recent pamphlet by my right hon. Friend the Member for Leeds. North-East, when he said:…unless Parliament is prepared to limit its own powers of its own free will, it will nurture its own nemesis.There are no easy answers to the problem. It would be a mistake to rush 57 enthusiastically towards a Bill of Rights as a wonderful panacea and the automatic solution. The nature of the problem is too complicated for that. However, I believe that there is an urgent need for a much wider examination than has yet been possible, certainly by Kilbrandon or by any comparable body.
If there is to be such an inquiry, I plead that it should not fail to direct itself to the matter of equal rights and equal treatment for all citizens. So far the attack on unfair discrimination has been piecemeal. There has been legislation against racial discrimination. There is now legislation nearing the statute book against sex discrimination. We understand that it is the Government's intention—in the words of the Home Secretary—to harmonise the powers and procedures in these two areas of action against racial and sex discrimination. We believe, too, that there is to be a further advance by the Government in the attack on racial discrimination. I hope that the Government's proposals will be well conceived. If they are, they will deserve support.
However, I want to widen the focus of the inquiry, because the time has come to look at the problem of discrimination as a whole and not in watertight compartments. I was impressed with the broader and more comprehensive approach taken in the United States—which I visited recently with a Select Committee—based on the desirability of equal rights in all senses for all citizens. I hope that if we are to have some kind of inquiry into the need for a Bill of Rights it will consider this area of human rights in the widest sense. Even if there is to be no special inquiry such as a Royal Commission, I hope that the Government—in whatever legislation they may be contemplating in the next year or two, if they survive that long—will look in a much broader way at the positive promotion of equal rights, rather than necessarily dealing with the problem of discrimination as hitherto in separate compartments.
To summarise my views, I very much support the motion that there should be an inquiry, although I am not convinced that the solution suggested is necessarily sound because of the difficulties already mentioned. The trends in the working 58 of our democracy today are very disturbing. The balance has tipped dangerously far in the direction of central and remote power. The individual has been thrown on the defensive and the time is overdue for the reassertion of individual rights. Certainly the existing safeguards have proved inadequate and some kind of long-stop is needed, especially a brake on the headlong production of new legislation of all kinds by Parliament.
A Bill of Rights, in the terms suggested, may not be the best answer. But the question is important and urgent, and the right answer must be found if we are to ensure the future health of democracy in this country.
§ 4.58 p.m.
§ Mr. Gordon Wilson (Dundee, East)
Many people are asking themselves whether the constitution is now in balance. From my own knowledge of the development of English constitutional history, this House grew in power by taking on the Crown and using its powers of finance as a method of counteracting the power of the executive. In other countries there has been a more formal relationship between the various powers which exist. In the United States there is the segregation of powers among the judiciary, the executive and the legislature
It would appear that in the United Kingdom, over a period of years, there has been a change which has led to Parliament coming under the thumb of the executive. Some of that credit or otherwise, I suppose, might be attributed to the Irish troubles in the nineteenth century, when, with the emergence of the Irish Nationalist Party and its efforts to disrupt the proceedings of the House, the strength of the executive grew in dealing with and controlling the way in which the business of the House was conducted. There was also the growth of the power of party managers, which in a sense springs out of the growth of democracy itself, the right of the electorate, which is sovereign, to demand that those who are elected in its name carry out its wishes.
It is interesting that during the debate we have been hearing about what has been happening to the development of law in England and in Northern Ireland, but very little has so far been said about Scottish constitutional law. Scottish constitutional law is in many ways entirely 59 different from that in England. It was interested in the observation that this Parliament is sovereign. This is a concept which would immediately be challenged in Scotland, and not just by members of my own party. It was challenged judicially in the case of McCormick v. the Lord Advocate in 1953, when it was sought to indicate through the courts that the right or the nature of the Queen's title was wrong in relation to the constitutional structure of the United Kingdom.
In that case, the court decided that the citizen had no recourse in matters of public interest to contest the rights of Parliament or of the executive. In an obiter judgment the court made the very interesting statement that there was a constitutional structure in the United Kingdom and that that structure had been laid down under the Treaty of Union of 1707, which entrenched within the constitution of the United Kingdom fundamental rights relating to Scotland.
Some of those fundamental rights have long since passed into history. Examples of such rights are the right to levy certain taxes and the right to have a Scottish mint, which dwindled in importance and disappeared. Many of the fundamental rights have been retained—the right of the Scottish legal system to exist: the right of the Church of Scotland to have certain privileges within Scotland. These were all entrenched within the Treaty of Union. So if anyone says that Parliament here is sovereign, that may be a statement which would not be correct.
In practice, of course, it has not made much difference over the years. Certain of the rights became useless and were not to be fought over. Again, in practical terms only the Lord Advocate, who is a member of the Government, is appointed the guardian of the public interest. It is hardly possible in his position to occupy the two different roles of defender of the public interest, on the one side, and a member of Her Majesty's Government on the other. Throughout the years, he has signally tended to support the interests of the executive and of the Government.
It still leaves this fundamental position of sovereignty. Going further back into history, we find that instead of Magna Carta, which never applied to Scotland, 60 there was the Declaration of Arbroath, which, in safeguarding Scotland's independence at that time, made it clear that if the Scottish people so wished they could expel the King from the throne, which in the Middle Ages was quite a revolutionary doctrine.
Again, the Claim of Right in 1689 was different in many ways from the Bill of Rights which applied in England. Unlike the Bill of Rights, which said in effect "Whereas our King has left the country, therefore we must choose another", the Claim of Right said "Whereas the King has acted against the public weal and has been a traitor, we do expel him from the throne and do choose another." There arose from that the fundamental right of the people to choose their own executive and their own crown.
That was not parliamentary sovereignty. That was sovereignty which, according to the constitutional concept and a feeling in Scotland, was vested in the people. Therefore, we on this bench see no reason in principle why there should not be a Bill of Rights. It is in fact in the draft constitution which we have worked on, as a possible one for submission to the people of Scotland on the gaining of independence, that there would be, as in so many other countries, a Bill of Rights which would incorporate those main rights which have been approved by the United Nations and by the European Convention.
The question therefore arises of what should be done at present. Leaving aside the wish of my party to obtain independence for Scotland and what we intend to do, it is obvious that the constitution of the United Kingdom is entering on a period of change, if not of turmoil.
I believe that it would be a natural effect that, on the setting up of Scottish and Welsh Assemblies, and with the natural pressure which could come from that, there would be an extension of their powers, developing perhaps into a quasi-federal constitution whereby the authority of the United Kingdom House of Parliament here at Westminster would be confined in public matters in relation to its power to effect the governing and administration of certain parts of the United Kingdom. There would be entrenched clauses which the United Kingdom Parliament could not touch because the powers 61 would be delegated or appointed to the Scottish Assembly or the Welsh Assembly or the Northern Ireland Assembly, or indeed to any English assemblies which may come.
At that time consideration could be given to the building of a section of rights into that constitutional structure relating to the individual, relating to private right as well as to public right. In all matters in this House and elsewhere the happier society is one that manages to keep a balance between public right and private liberty. It is not always an easy matter to balance or to safeguard.
Last week I met some American congressmen who were discussing various matters relating to the planning and development of the oil industry. It was said by the hon. Member for Down, North (Mr. Kilfedder) that planning was one of those things which should be subject to the Bill of Rights. I was not sure at the time the hon. Gentleman made that point just what he was driving at. In planning matters there is control by statute which gives the individual certain rights. It is not perfect, and one of the glaring absences from that type of legislation is that individuals are not entitled to be given notice of planning applications. Therefore, not having been given notice, they are not always ideally placed to be able to lodge objections and so invoke the appeal and inquiry procedures which exist.
The comment which was made as a general one about the United Kingdom and the United States of America in relation to overall planning was that, by comparison with the United States of America, Britain was autocratic in the way in which it dealt with various rights. The United States has built in a very elaborate structure between the States and the federal Government.
One thing which can be said about the United States of America, whether one agrees with its system or not, is that its judicial system was at the end of the day responsible for flushing out the Watergate situation, was able to expose the executive to control, and was able to ensure that the balance which existed there came into effect.
I do not think that in the United Kingdom we have that defence to control the 62 executive. We have the three main constitutional functions—the executive, the legislature and the judiciary. The judiciary has declared itself free from deciding upon legislation except upon interpretation or enforcement. It does arrogate to itself the right to decide whether legislation is in itself legitimate in terms of the wider constitution.
On the other hand, there are the legislature and the executive, which are hand in hand with one another. Except in that short period between March and July when there was a minority Government and when the executive had to try to persuade Parliament as a whole that its intentions were sound and that its thinking was practical and reasonable, we have not had a situation where parliamentary government is in existence in the true sense. It is what the Government say and what they can force their own back benchers to swallow that matters at the end of the day. That, as hon. Members on the Liberal bench will say, is often in defiance of the fact that they are operating on a minority vote.
Those are the broader implications. A Bill of Rights should be earnestly considered by the Government. The number of complaints which have emerged from the United Kingdom to the European Court is certainly a warning that some steps in that direction are necessary.
But at the end of the day there is a need for wider vigilance, too. We have recently seen India, a country governed democratically for years, changed quickly from a democracy to a country completely under the thumb of the executive, and this being done while Parliament was in recess. It is the fundamental job of each one of us to ensure that such an event shall never occur in the United Kingdom.
§ 5.10 p.m.
§ Mr. Jonathan Aitken (Thanet, East)
I join other hon. Members in congratulating the hon. Member for Down, North (Mr. Kilfedder), who has clone the House a great service by initiating this valuable debate.
I hope that the hon. Member for Dundee, East (Mr. Wilson) will forgive me if I do not take up in detail his exposition of Scottish constitutional law, though I say at once that I felt that he presented 63 a forceful argument in favour of a Bill of Rights when he explained that inevitably, under the devolution processes which are likely to be set in motion, the regional assemblies, given the volume of legislation which they are likely to be processing, will probably need some sort of bulwark against the possibility of human rights being destroyed by that legislation. In that sense, a Bill of Rights passed by this Parliament could be the linchpin.
Whatever part of the United Kingdom we come from, we can all agree, I am sure, that the background to this debate is that we are living in an age when the sheer speed, pressure and complexity of modern life may cause even our most fundamental freedoms to be eroded all too easily, and often without much notice being taken of the erosion process. My right hon. Friend the Member for Taunton (Mr. du Cann) struck the right note when he gave figures showing the sheer volume of legislation with which we are being inundated. As a new Member of the House, I sometimes shiver when I realise how, during the 16 months I have been here, more than 2,000 pages of legislation have been added to the statute book and over 7,000 pages of statutory orders and regulations have been published. The idea that any one Member of Parliament, or even groups of Members, could adequately fulfil our watchdog function when we are swamped by such a volume of legislation is in itself a telling argument in favour of the Bill of Rights recommendations which we are discussing.
In the interests of brevity, I shall concentrate on one basic right, the right to freedom of speech and freedom of expression. Lest any hon. Members think that I am being a little fanciful in even suggesting that such a basic right should be included in a Bill of Rights, I refer them to the Bill of Human Rights of the Commonwealth of Australia, Section 11(2) of which provides that in AustraliaEveryone shall have the right to freedom of expression. including freedom to seek. receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or in any other media of his choice".There are then certain exceptions defined in the statute, which, of course, cover 64 such matters as national security and the invasion of privacy.
If we had such legislation as a similar Bill of Rights in our country, one would have to admit that there are already certain restrictions on freedom of expression through our law of libel, the Official Secrets Act and the law of contempt of court, and perhaps some of those laws could profitably be redrafted in the light of a Bill of Rights. However, I wish to direct attention to certain specific examples in recent weeks showing, in my belief, that freedom of expression is being imperilled either by executive action or by legislation introduced by the Government.
The hon. Member for Down, North spoke of the erosion of freedom under the Prevention of Terrorism Act. I shall refer to the possible erosion of freedom presented by the Trade Union and Labour Relations (Amendment) Bill, which is still on its way through Parliament. Several provisions of that Bill might well fall foul of a Bill of Rights, especially those provisions which abolish the safeguards in relation to unfair exclusion or expulsion from a trade union. But I direct special attention to the clauses which facilitate the establishment of a closed shop in journalism, for a closed shop in journalism would almost certainly result in access to the media being restricted, probably to members of the National Union of Journalists only, and would probably result also in articles from nonunion writers being blacked, as has happened on several occasions in recent months.
The Government's shameful proposals to strengthen the power of the monopoly union at the expense of the interests of non-union contributors, at the expense of the interests of members of the smaller union, the Institute of Journalists, and above all, at the expense of the interests of readers themselves, which also would be damaged, has caused concern on both sides of the House. If a Bill of Rights had been in existence, I wonder whether such concern would have been quite so necessary.
There was an illuminating exchange in our proceedings in Committee on the Bill at a point when one of the Government spokesmen was explaining that all the Government were trying to do was to 65 return to the pre-1971 position. At that point, the Liberal Member, the hon. Member for Rochdale (Mr. Smith), intervened to say:If the Minister will give an assurance that further legislation will be introduced this Session to deal with the liberty of the individual and to safeguard the liberty of the Press, on the clear understanding that we assist them completely to obliterate the 1971 Act, I shall be prepared to go along with that argument. Is the Minister prepared to give such an undertaking?"—[Official Report, Standing Committee E, 16th Jan., 1975; c. 182.]Of course, there was a deafening silence from the Minister. However, if he had been able to give an undertaking that a Bill of Rights would be brought in by his Government to safeguard certain fundamental rights and freedoms, such as freedom of expression, the enormous concern which has been felt and expressed by so many hon. Members about that Bill would have fallen away. If we could have felt "This just will not happen because it would not be in accord with the provisions laid down in a Bill of rights", we could have been better satisfied.
I believe that a Bill of Rights should guarantee a right of access to the media. As we all know, there has been, and continues to be, a disturbing incidence of censorship of the media, first and foremost by certain elements in the trade unions. Sir Michael Swann made a most effective and pointed speech about how certain articles had been censored by trade unions. He might have looked to his own backyard in television and pointed out that certain programmes have been blacked in recent weeks by the ACTT. This disturbing trend of censorship by trade unions could well accelerate if the closed shop provisions in journalism were brought into force, and a Bill of Rights would be a bulwark against that kind of obstruction and erosion of freedom.
A second threat to freedom of expression has been presented during the past few weeks by certain executive action of the Government in interfering with the right of freedom of expression. I refer, in particular, to certain recent activities of the Attorney-General.
§ Mr. Deputy Speaker (Mr. George Thomas)
Order. The hon. Gentleman 66 will know that that matter is sub judice. Perhaps he will leave it now.
§ Mr. Aitken
I hesitate to tangle with you in any way, Mr. Deputy Speaker, but may I put two basic points to you on this matter? First, I cannot believe that you would rule that no discussion of any activity by the Attorney-General should be mentioned at all, since the actions which I have in mind—I have not even begun to refer to them—have in fact been discussed at enormous length in the Press and on television. I submit that the idea that we may not in this Chamber discuss any of these actions in any area whatever must be unjustified.
Second, the specific matter to which I wish to refer is a writ issued by the Attorney-General on which judgment has already been passed by both the High Court and the Court of Appeal. I submit that such a matter on which judgment has already been passed cannot be covered by the sub judice rule, since the point of the sub judice rule is that the matter is still under consideration. In the circumstances, therefore, may I be allowed to proceed?
I am sorry even to be critical of the Attorney-General, because he is a former chairman of that admirable body, the British Human Rights Trust, of which I now have the honour to be a trustee, but I feel that the right hon. and learned Gentleman seems to have been somewhat less than devoted to the right of freedom of expression during the past few weeks as his efforts to suppress publication of the Crossman diaries have become ever more frenzied. Indeed, some of the Attorney-General's ham-fisted endeavours in this direction have gone seriously too far, because the writ to which I have referred, on which a decision has already been given and which, therefore, I submit, cannot be sub judice, said that the Government, through the Attorney-General, were seeking to forbid publication of "any material" which "gives details" of virtually any Government policy making at any time in the past 30 years. Thus the battle has been expanded into the dimensions of a war whose boundaries go far beyond the Crossman diaries and the boundaries of common sense. Mercifully, the High Court and the Court of Appeal ruled on the matter 67 and did not allow the judgment to proceed. As the Sunday Times said:Thank God for Lord Denning.My hon. Friend the Member for Cambridge (Mr. Lane) raised the interesting argument that there were fears about the position of the judiciary if a Bill of Rights was passed. On the whole, the judiciary, certainly as far as the freedom of the Press is concerned, has been a far greater bulwark against the erosion of freedom than this House or Parliament. As far as the freedom of the Press is concerned, I would not be too distressed if the judiciary was given a little more power. It has conducted its stewardship of this freedom more carefully than has this House.
Whether the erosion of freedom of expression is by executive action or by a trigger-happy Attorney-General—
§ Mr. Speaker
Order. I am not at all certain that the hon. Member is not reflecting on the Chair. To say that the Attorney-General is trigger happy is a personal reflection and the kind of remark that should be made only in a motion. I will allow the hon. Member to develop his argument, but I do not like these epithets.
§ Mr. Aitken
Thank you for your guidance, Mr. Speaker. Censorship of the media by trade unions or a move towards a closed shop in journalism and the restriction of access to the media are erosions of freedom of expression which would all be safeguarded by a Bill of Rights based on the Australian version.
I share some of the concerns of my hon. Friend the Member for Cambridge and the right hon. Member for Down, South (Mr. Powell), who pointed out some of the difficulties in legislating for such a Bill. However, in this debate the case has been more than three-quarters made out in favour of such a Bill, and I should like to see approval of the suggestion of my right hon. Friend the Member for Taunton that a Select Committee should be set up to investigate methods of bringing a Bill of Rights on to the statute book as soon as possible.
§ 5.22 p.m.
§ Mr. Leon Brittan (Cleveland and Whitby)
I welcome this debate and the fact that it is to inform rather than to 68 force us to reach a conclusion. I have not reached a conclusion, though I recognise that the basic case etched out in favour of the Bill is a formidable one. The tendency of Governments of both parties to erode the liberties of the subject and of the corporations, which have the right to exist in this country, has been illustrated fully in this debate. It would be very difficult to look back objectively at the last 20 years and say that there has not been an erosion of liberty in this way.
However, a word of caution is needed because there is a tacit assumption that almost any injustice or wrong that hon. Members can call to mind would be rectified, remedied or prevented by a Bill of Rights. It is by no means certain that all the matters mentioned in the debate so far would be covered by such a Bill at all. A number of the matters amount to maladministration and would be covered by the efforts of the Ombudsman rather than a Bill of Rights and some of the matters have been of such detail that it is almost inconceivable that a Bill would cover them.
There has also been the assumption that we are all fully agreed on what the rights of the subject are or should be and that the only point of controversy is how they should be enforced and protected. If anybody has to work out what the Bill should contain, he will find that the apparent unanimity will disappear like gossamer. There is real controversy as to what should be in the Bill.
One thing is clear beyond peradventure —it would be an appalling mistake to attempt to introduce a Bill until its contents and the method of enforcement have received the widest possible degree of agreement and consent in this House and the country. To attempt to introduce a Bill which itself became a football of controversy of party political or other kinds would be a remedy worse than any conceivable disease.
It is not difficult to see how controversy could arise in the consideration of subjects to be included in the Bill. The most obvious subject—one which would perhaps distinguish this side of the House from the Government side—is the whole question of property rights. Many a Bill of Rights would regard it as essential and axiomatic that a prominent provision should be the protection of the right of 69 property. Yet many Labour Members would be less enthusiastic in their support for the rights of property. They are entitled to that view, and they can argue it here and in the country.
Until we reach agreement on the content of a Bill, it would be hazardous indeed to embark on the adventure of trying to create one. Even if we do reach agreement—and this will be much more difficult than is sometimes thought —the question of enforcement and entrenchment remains. There have been a number of suggestions as to how this should be done, ranging in efficacy from the very weakest of measures to the very strongest. The further one goes to entrench and enforce a Bill of Rights, the further one goes to disrupt the present constitutional arrangements, which for good or ill, operate in the country.
The weakest of suggestions is that Parliament should be allowed to pass legislation that infringes a Bill of Rights only if it does so knowing that it is passing such legislation—in other words, if it has included in an Act an express proviso that it was being passed despite the fact that it conflicted with the Bill of Rights. The theory is that Parliament would at least have to put its mind to the question of whether it wished to pass legislation which conflicted with the Bill of Rights. Under that course, it would not take long for Governments to insert as a normal formula—and by common parlance for it to be accepted as such—a meaningless piece of mumbo-jumbo to the effect that the measure conflicted with the Bill of Rights. That is a protection that would be illusory and all the more damaging for being so.
One of the alternative methods involves Committees within Parliament which would have to decide whether legislation came within certain categories and whether it would require a certain majority to be passed or repealed. This is a more attractive proposal. It would give the parliamentary Committee entrusted with the task the most tremendous power, and I imagine it would be necessary for Parliament to have the right to overrule it. This is, at least, a possible avenue to pursue, although the history of provisions of this kind in other countries has not always been a very happy one.
70 The true Bill of Rights, as the right hon. Member for Down, South (Mr. Powell) said, is one which enables the courts to say that a particular piece of legislation will not be given the force of law because it conflicts with the Bill of Rights. It involves necessarily a system of judicial review, and the right hon. Gentleman is absolutely right in pointing out that any system of judicial review is fundamentally in conflict with our present constitutional arrangements and involves a major disturbance and alteration to the whole system of Government. That is not, of course, in any way conclusive, because one cannot regard something as being axiomatically right merely because it has been the way of government over a period of time. At a time when our rights and liberties are being threatened I do not believe that a system of judicial review should be regarded as an absolute bar to a Bill of Rights merely because it is a fundamental innovation.
It would be an innovation which had great consequences for our constitutional arrangements, and it would give to the law courts a power which in the past they neither had nor sought. Until now the law courts have been concerned either with the determination of factual issues between individuals or at least the interpretation of statutes by comparatively narrow points of construction, but to give them the power of enforcing a Bill of Rights would not only give them a greater power than they have had up to now but would involve them in a consideration of issues which hitherto they have not had to consider in the same sort of way.
The only alternative would be to make a Bill of Rights so detailed in form that it would be inflexible and require a kind of frequent revision which would be inappropriate in such a fundamental Bill. The essence, for example, of the American Bill of Rights and Constitution, which have stood the test of time, is that they are phrased in a general form and their meaning is valid according to the deliberations of the Supreme Court over the years. In the early nineteenth century in the case of Marbury v Madison, the Great Chief Justice of the United States Marshal, when called upon to decide a question relating to the United States Constitution, adjured the court to remember that it was the 71 constitution that it was interpreting. In other words, the principles of interpreting a Bill of Rights or a constitution must be very different from those of interpreting a mere statute, and if that is so it means that the courts would be considering basic questions and not just the interstices of legislation which have been left open by Parliament in its wisdom or folly.
If the courts are to consider major social questions in this way one must ask, without disrespect to the judiciary, whether its members are qualified to do so, leaving aside any question of the democratic implications of requiring them to do so. They have carried out a very different role over the centuries, and, therefore, I would suggest that they are not at present necessarily qualified to do so. They have not equipped themselves with the form of legal consideration that the United States Supreme Court has always had because they are not as diverse in their origin and background as the members of that court. That court has always had among its number people who are experienced in government in a variety of forms, often in the legislature and sometimes in the executive. Our law courts do not consist of such people. They consist almost exclusively of people who have practised in the law, and there are very few exceptions. If they have practised in the law they have mostly studied the law. Legal studies in this country, although much improved in their quality, do not constitute the form of liberal wide-ranging education that the United States law schools, which are graduate institutions, impart.
It may seem a far cry from a consideration of a Bill of Rights to be talking about legal education, but it is fundamental to the question. If we are to impose a power of this kind on a repository other than Parliament, representative in a sense, if not in a democratic sense, of the long-term wishes of the people, we have to be sure what we are doing, to whom we are giving that power and how it is to be exercised. Great and unbounded as my admiration is for the judiciary carrying out its present rôles, I believe it would be extremely chary of undertaking such a new rôle.
These are my doubts and reservations about a proposal which has considerable 72 attractions. So great are the attractions that, in spite of the reservations I have felt bound to put before the House, I warmly support the idea of this concept being given further consideration at greater length in a more leisurely, authoritative way than can be done in a brief debate of this kind. I also express my support for the idea that the matter should be considered further, if not by a Select Committee, then by a Royal Commission, and if not by a Royal Commission, by some other body which is calculated not only to reflect the knowledge of history and law required to reach conclusions on these matters but to add adequate weight to the differing political views which cannot be divorced from this matter. These views have to be reconciled if we are ever to create a Bill of Rights which is more than a snare and delusion.
§ 5.38 p.m.
§ Mr. Michael Alison (Barkston Ash)
I add my congratulations to those already extended by my right hon. and hon. Friends to the hon. Member for Down, North (Mr. Kilfedder) on his choice of the subject for debate. The subject and the debate could rarely have been more timely than at present. I have a modest fact to put on the record. I wish that it was in my gift to announce the setting up of the Select Committee which my right hon. Friend the Member for Taunton (Mr. du Cann) suggested. I can do the next best thing, which is to confirm that the Leader of the Opposition has decided to set up, on behalf of the Opposition at least, a formal committee of eminent jurists and lawyers under the chairmanship of the former Solicitor-General, my hon. and learned Friend the Member for Wimbledon (Sir M. Havers). Its aim will be to carry out a study with a view to considering, first, whether there is a need for a Bill of Rights or some other modern form of written adjunct to our constitution and, if it considers there is such a need, how it can be protected and entrenched from subsequent erosion and repeal at the hands of a simple parliamentary majority. I believe this is a constructive step in the present climate which I hope the Under-Secretary will be able to cap, perhaps with that very Select Committee which my right hon. Friend suggested.
73 As I was saying, this subject is timely. I remind the House of the very significant and sharp change and "discontinuity" in recent constitutional practice to quote the word which my right hon. and noble Friend Lord Hailsham used in the columns of The Times recently—which has occurred in connection with the European Communities Act 1972 and the referendum which has now endorsed that Act. The referendum unquestionably invested that Act with a novel but none the less real degree of supra-parliamentary endorsement authority and, probably, durability that has created a significant precedent.
We cannot overlook the fact that a national popular referendum has endorsed an Act of Parliament which itself limits the sovereignty of that Parliament and which confers upon outside bodies—in this case the Council of Ministers and the European Commission—law-making powers under the treaties which place in the hands of the European Courts—not in any British court—the power and duty to decide whether the Council of Ministers or the Commission in making laws applicable in this realm are acting ultra vires. We cannot overlook the fact that for many years to come Parliament has effectively acknowledged a higher source of sovereignty than its own in the shape of the popular referendum that we have just had. To unscramble the 1972 Act will be politically impracticable for Parliament for many years to come, precisely for that reason.
§ Mr. Alison
I knew that I should draw the right hon. Member for Down, South (Mr. Powell) on that point, but I continue to assert that the very referendum has made the subject of the validity or otherwise of the 1972 Act virtually a taboo subject for the next decade.
§ Mr. Powell
I congratulate the hon. Gentleman if he has been endowed with a spirit of prophecy that can see a decade ahead. I intervene only to say that the Government assert officially that continued membership of the Community is dependent upon the continued consent of Parliament.
§ Mr. Alison
I must urge the right hon. Gentleman not to be too literal and—dare I. use the word?—legalistic in his 74 assessment of the present position. The political reality is that this House, in agreeing to a referendum, has bound itself in moral and practical terms to the results of that popular referendum, and the effect of that is to give some of our sovereignty to another extra-parliamentary source. We cannot overlook that precedent. Effectively we now have a supra-parliamentary source of authority within our constitution.
I do not believe that we should overlook the significance and importance of this in the context of today's debate because, leaving aside the merits or otherwise whether some new entrenched external code of individual or human rights is desirable in the present juncture of our constitutional affairs, the key question in the past has always been whether such a code or entrenched constitutional provision is logically conceivable in a system where Parliament is sovereign and can repeal or modify any such allegedly entrenched provision or enactment.
The fundamental discontinuity with the past is that this "entrenchment" proposition has become a practical possibility. We can think of extra-parliamentary safeguards, Bills of Rights or some other sort of entrenched provision in relation to the rights of individuals because the precedent has been created. We have endorsed an extra-parliamentary source of authority by the novel device of the popular referendum.
Perhaps for the first time since the early eighteenth century we can now consider the question of new constitutional provisions or safeguards on its merits because, by this new precedent which has been created, if we think they have merit they can be established and set up. A country and people which is prepared to entrench the European Communities Act and the provisions of the various treaties which set up the European Communities, will surely be prepared to consider on their merits other provisions which may be set up outside the ambit of Parliament which will have far more directly beneficial effects upon the life, property and prospects of individuals than anything in those treaties now entrenched.
I very much weigh the powerful arguments which the right hon. Member for Down, South nevertheless advanced in the context whether in reality entrenched provisions of a weighty and fundamental 75 kind affecting individuals remain seriously practicable or "practical politics" in the context, for example, of the harsh realities of a national emergency such as those he postulated as a possibility or illustrated as a past actuality. After all, the right hon. Gentleman would no doubt argue, in relation to what we have entrenched in the 1972 Act, that we are dealing with a different kettle of fish when we are talking about counter-terrorism Acts or similar measures compared with the limited range of topics dealt with by the European Community treaties. It is right to face this direct. It raises serious difficulties, as my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) and others have said.
It is nevertheless important to establish that it is by no means against our constitutional precedents to consider it desirable for provision to be made for statutory safeguards for the rights of individual subjects over and against the power of the executive and, I would say, of Parliament itself. One has only to think of some of the precedents—Magna Carta, habeas corpus, the Bill of Rights and the Act of Settlement. Lord Justice Scarman in his widely acclaimed Hamlyn lecture, quotes an important authority who says:The omnipotence of Parliament was not the orthodox theory of English law, if orthodox at all, in Holt's time.We have precedents both in the earlier Acts to which I have referred and now in the vivid case of the European Communities Act for bringing the whole question of safeguarding human rights in the twentieth century into view and into focus as something which we should seriously consider as our forebears did in the sixteenth and seventeenth centuries in the context of that time.
What then are the merits of courses of action that we could bring forward? What changed safeguards in our constitutional practice should be considered and evaluated by my right hon. Friend's new committee of inquiry? I believe that the first area that any committee should consider is in the context of the suppression or oppression of fundamental human rights and freedoms of which an unrepresentative Parliamentary majority can be capable. My right hon. Friend the Member for Taunton used the vivid 76 phrase of an elected parliamentary dictatorship.
The present Government are singularly unrepresentative. Less than 40 per cent. of the votes cast at the last election were in favour of members of the Labour Party and only one-quarter of those who were entitled to vote voted for the present Government, and yet it is both tragic and ironic that no Government since the war has been more disposed than the present one towards measures which threaten to infringe fundamental individual freedoms.
One has only to think of the case produced by my hon. Friend the Member for Thanet, East (Mr. Aitken) in the Trade Union and Labour Relations (Amendment) Bill, with its direct threat to the integrity of freedom of speech and access to the media. There is a real threat to individual rights and fundamental freedoms in the education policy being pursued by the Government in relation to the choice of schools. In medicine, there are steps afoot either administratively or by statute to limit the freedom of choice of individuals about the kind of medical treatment that they may receive and the place of treatment. There is a limitation on personal freedom and on property rights by way of taxation, land ownership, and so on. In all these areas Government policy is railroaded through Parliament my means of a docile, nominal parliamentary majority in a way getting close to the point where the prevailing concept of natural justice for the individual as understood by the common law is being outraged.
I come to a brief reflection on the way in which our legal system has developed. Here I part company a little from what my hon. Friend the Member for Cleveland and Whitby has said. The way in which the common law and the judiciary have evolved in the past 200 or 300 years has been a grave disappointment. They have evolved in such a fashion that they seem to be unable to provide a bulwark against the infringement of individual rights, against the affront to basic ideas of natural justice which the common law was meant to uphold, where statute law is concerned. Common law and the judiciary seem to be chary in their interpretation of statute law concerning the fundamental freedoms of the individual 77 My right hon. Friend the Member for Chesham and Amersham (Mr. Gilmour) has brought out vividly in his book "The Body Politic" how culpable he regards the practitioners of common law in allowing a situation to develop in which judges and lawyers have been increasingly pusillanimous in their attitude towards statute law or administrative law in the light of what they understand to be the rights of the individual in common law. It is always risky to criticise the judiciary or lawyers in this House. I see that already I have the lawyers on their feet.
§ Mr. Peter Rees (Dover and Deal)
May I put this thought into my hon. Friend's head, that perhaps it is another facet of the assumption of omnipotence by the Crown in Parliament and the fact that we are ready to disregard conventions which were regarded as binding by our ancestors. It may be against that trend that the judiciary is a little over-sensitive on certain matters. The fault probably lies as much with us as with it.
§ Mr. Alison
My hon. and learned Friend wears two hats most delicately in this assembly and elsewhere. His words are judicious and balanced. The point is, nevertheless, a fair one. There is opening up an increasing gap between the attitude taken towards individual rights and natural justice for the individual in statute law and that taken in common law where it is vigorously and marvellously upheld by lawyers.
§ Mr. Brittan
Would my hon. Friend not agree that the reason is that Parliament has insisted on enacting so many statutes and has repeatedly stressed its sovereignty that the courts have been driven back. They know that if they do not interpret the statutes in the narrowest of ways Parliament will intervene to enact another statute. Does that not support my basic proposition that because of this history, over the centuries, of parliamentary sovereignty and narrow judicial interpretation we should think twice about suddenly casting upon the courts the task of wider social decision making, a task greater than they have got used to over the centuries?
§ Mr. Alison
I take that point. At least in recent decades, perhaps centuries, the power and effectiveness of Parlia- 78 ment through its statutory process and machinery and the increasing enfrancisement of the people has made it difficult for the judiciary to disregard the reality of power behind statute law. This merely underpins the argument many of us have been putting forward, including I am glad to say my hon. Friend himself, that the moment has come to re-assess the dictum I have quoted, that the omnipotence of Parliament was not the orthodox theory of English law if it was orthodox at all in times past.
The way in which to re-assess and to reconsider this is at least to consider the possibility of some entrenchment of fundamental rights as understood in common law.
§ Mr. Powell
It should be remembered, surely, that the orthodoxy of the supremacy of Parliament has been coequal with the evolution of democracy and of the expression of the general will of the electorate in our constitution.
§ Mr. Alison
I readily accept and concede that point. But the common law and everything that is now understood by it antedates Parliament and the democracy that Parliament represents. Common law, with its fundamental concept of fair treatment for the individual in the light of natural rights through a predictable system of laws now needs to be reasserted in relation to Parliament and statute law. This is the validity of the case of those who want to bring forward consideration of something analogous to entrenched provisions over and above Parliament, such as Parliament has now shown itself willing to conceive of in the European Communities Act and the associated referendum.
All that I am asking for is a serious study of this proposition. My preference is for an approach suggested earlier by my hon. Friend the Member for Thanet, East when he intervened during the speech of my right hon. Friend the Member for Down, South and mentioned the Canadian Bill of Rights Act. The purpose of that is to introduce what is called technically a canon of interpretation. That seems to be a valuable approach, the concept of a canon of interpretation over and above statute law imposing on the judiciary the obligation to think in terms of common law and its principles so as to determine 79 whether statute law is moving on the right lines.
Not only statute law is involved. There are the processes of executive administration which need to be brought under review, the way in which, for example, the Supplementary Benefits Commission is able, without publication of its code of principles for determining uses, to reach important decisions affecting the rights of citizens. All of this needs to be brought within the ambit of the common law. We need a close examination to determine whether this is feasible. We now have the precedent of the European Communities Act and the referendum. The moment is ripe to consider whether we should have some sort of external entrenchment. Let us seize the opportunity.
I hope that we shall get the promise of a study from the Minister and so move in the direction in which the majority of contributors to the debate would have us move—towards re-assertion of individual rights as understood by common law, the common law which antedates the ebb and flow of the concepts underlying a modern democracy and parliamentary government.
§ 5.58 p.m.
§ The Under-Secretary of State for the Home Department (Dr. Shirley Summerskill)
I congratulate the hon. Member for Down, North (Mr. Kilfedder) on making possible this important debate. As always, when we are discussing a matter concerning individual freedom and the rights of the citizen, we have had a thoughtful and constructive debate. A number of different examples have been given on ways in which hon. Members feel that the rights of the individual are being infringed. I cannot comment on them individually. Some of them may have been valid. The allegations about the Government were not so valid.
Views may differ about the best way of safeguarding individual rights, but, as this debate has shown, there can be no doubt about our agreement on the importance which we all attach to protecting these rights.
§ Dr. Summerskill
I refer the hon. Gentleman to the words of his right hon. Friend the Member for Taunton (Mr. du Cann), who said that no party has a monopoly of concern for the freedom of the individual. Happily, this is not a party issue, and I hope that the hon. Gentleman will not try to make it into one.
§ Dr. Summerskill
We have heard a good deal of public discussion recently outside the House about the desirability or otherwise of a Bill of Rights. A number of eminent men with wide experience of the working of various parts of our constitution—lawyers, politicians and other constitutional experts—have made major contributions to the debate. One of the most distinguished has been Lord Justice Scarman's Hamlyn Lectures. Many of the views which have been expressed outside have been reflected in what has been said today, and some have been quoted directly.
As hon. Members will recall, when answering a Question on 21st April from the hon. and learned Gentleman the Member for Wimbledon (Sir M. Havers), my right hon. Friend the Home Secretary said that, while in his view the time was not ripe for a Royal Commission to examine the need for a Bill of Rights, he would welcome further public discussion of the issue in general. It is, therefore, useful and important that we have been able to hear the views of hon. Members and the arguments about the relative merits of a Royal Commission or Select Committee on this subject, or the undesirability of either.
This is indeed a subject on which there is a wide spectrum of opinion, not only whether a Bill of Rights is desirable but also about the form it might take, and the rights which it should seek to protect. This has been illustrated by the range of views expressed today. Different advocates attach different importance to different rights. But I think it would be fair to say that their common intention is to give statutory force to the laws and customs on which the rights and liberties of the nation are founded; to reflect 81 Parliament's respect for its constitutional authority; and to ensure the protection of fundamental human rights and freedoms.
Those who favour a Bill of Rights often cite, in support of their arguments, examples of the Bills of Rights found in other countries. Indeed, some examples have been quoted this afternoon. It is sometimes pointed out that this country, while rejecting a Bill of Rights for itself, has none the less in the past conferred on newly enfranchised Commonwealth countries a constitution which includes some such declaration of fundamental human rights. However, such provisions have to be seen in their general social and constitutional context, and, outside that context, comparisons with them have limited value—and may even be misleading.
Many of the countries which have Bills of Rights are countries which, unlike ours, have written constitutions. In some cases, these constitutions were created at a major turning point in the country's history in response to some radical change, such as revolution or the achievement of independence. What may have been appropriate for them is not necessarily equally suitable for our own very different system, which has evolved gradually—and for the most part peacefully—over so many years. And I am sure that none of us would make the mistake of thinking that, because we have no Bill of Rights, individual freedoms have been less fully protected here than in many of those countries which have. Conversely, those countries which have a Bill of Rights do not necessarily protect individual freedom more successfully than we do. It has to be admitted, I think, that there is room for more than one view about the effectiveness of some of these instruments in protecting the liberties which they declare. A Bill of Rights is not a fail-safe answer to all the problems which arise in the protection of individual liberties. Much more important is the respect which a society has, at root, for such freedoms and the importance which it is prepared to attach to them. That is the greatest safeguard not only for those individual liberties but for our whole democratic system.
But, having said that, I would not like the House to think that the Government 82 —or I personally—are committed against a Bill of Rights. If I have said that we must recognise that such instruments are no panacea, we ought also to recognise that they do have attractions. These have been set out very clearly today by the hon. Member for Down, North and others who have spoken in support of his motion—and I have a good deal of sympathy with much of what they have said, especially the view that in a democracy adequate protection of human rights is an article of faith shared by all. But previous parliamentary efforts to introduce a Bill of Rights into our constitution have not succeeded. Let us consider, therefore, the strength of the arguments against such an innovation.
In the first place, we must consider how much any such Bill would be likely to circumscribe the sovereignty of the Queen in Parliament, which has always been regarded by most people—although it was questioned by the hon. Members for Cambridge (Mr. Lane) and Dundee, East (Mr. Wilson)—as the prime safeguard of the liberties of the subject. Obviously, the precise effect of any Bill of Rights in this respect would depend on the nature of its detailed provisions, but if the rights were to be truly entrenched and binding on our successors that could be done only at some sacrifice to the supreme authority of the Queen in Parliament. This would indeed be a momentous step, and it is one which we should not contemplate without the most thorough study of all its implications.
Secondly, if such a Bill were merely to catalogue rights without any corresponding statement of duties, it would evade the central problem of social organisation, which is to maintain a proper balance between freedom and order, and to reconcile the freedom of the individual with the obligations of the citizen. No right can be absolute. Freedom of speech, freedom of assembly, procession and demonstration—to which we would all certainly subscribe in principle—nevertheless have to be subject to some restriction, since there are circumstances in which their unrestrained exercise could lead, however unintentionally, to disturbance or disorder. Similarly, liberty and the security of the person must be circumscribed by the need to provide for the arrest, trial and punishment of those who break the law.
83 The balance between freedom and restraint is delicate and needs constantly to be redressed according to the circumstances of the time and of particular situations. Setting the balance is one of the tasks of a political system. The tensions created commonly have a political expression, and over the years they have commonly been resolved by political action, resulting in legislation designed to delimit the boundaries where rights and claims conflict.
§ Mr. Beith
Does the hon. Lady recall the occasions on which those tensions have led to the placing on the statute book of legislation which, in retrospect, many of us would have wished not to be there but which proves exceedingly difficult to repeal because Governments find it convenient to retain it even when the urgency of purpose does not dictate it? I have in mind parts of the Official Secrets Act and the Incitement to Disaffection Act which were passed under considerable tension. One wonders whether they should have been passed in their present form.
§ Dr. Summerskill
The hon. Gentleman is speaking for himself. Those Acts must have received the majority support of the House. If an Act is repealed, that also requires the majority support of the House. The hon. Gentleman has illustrated what I have been saying, namely, that there is a fine line to be drawn between individual freedoms and the restraints which are necessary in any society.
Whatever constitutional alternative were devised would have to allow reasonable latitude for adjustments and change. Two possible models have been suggested for a Bill of Rights. One would contain a detailed statement of the nature and extent of the rights to be protected. This would give rise to obvious difficulties for, quite apart from the initial problems in defining the rights, the provisions of the Bill would inevitably need adjustment in the light of changes in society's standards and attitudes; yet a measure which invited frequent amendment would be a mere shadow of what a true Bill of Rights might be expected to be.
On the other hand, the alternative model—a statement of rights expressed in general terms, with detailed interpretation 84 and application of its provisions left to the courts—would give rise to different problems. True, it would have the advantage of flexibility, in that interpretations and applications could alter over time as society evolved, and public opinion as to what constituted acceptable activities changed. But the generality of its provisions would inevitably lead to uncertainty.
A system of case law takes a long time to build up and so, for a considerable period after the introduction of any Bill of Rights drafted in such broad terms, it would be impossible to predict with any certainty what was likely to be judged as an encroachment upon fundamental rights. The task of interpreting such a Bill would also place a heavy burden on our judges, as was pointed out this afternoon, and involve them in controversial political matters which have traditionally been regarded in this country as the proper sphere of a democratically elected Parliament. There would, therefore, be a significant shift in the relationship between the legislature and the judiciary, the effects of which it would be difficult to predict with any assurance. As the hon. Member for Cleveland and Whitby (Mr. Brittan) pointed out, the judiciary would also be asked to consider basic social questions, which is not its usual rôle.
Finally, it is impossible to be certain how far a catalogue of rights drafted in loose and general terms would be found to overlap or run parallel with existing legislation. The undesirable result would be that some matters would be dealt with in two statutes which would be open to conflicting interpretations. In such circumstances, if a Bill of Rights did not become a dead letter, its application would be likely to lead to an increasingly complex body of case law, which would defeat a prime object of the exercise—the provision of swift redress for those whose rights have been infringed.
I have dealt at some length with the various arguments which have in the past been employed against a Bill of Rights because they seem to me to have considerable strength. But, as I have said, the British constitution is one which evolves over time, and we have, therefore, to recognise that the balance of advantage with regard to any proposal for constitutional innovation may also change. That is why, while giving due weight to the arguments which I have listed, we should 85 never—now or at any time in the future—regard them as being final or definitive. We should always be prepared to reassess them in the light of changing circumstances.
I am sure that the House will hardly need reminding of the recent developments which have had, or may prove to have, significant implications for the system of government in this country. The hon. Member for Barkston Ash (Mr. Alison) mentioned them and rightly stressed their importance. We have joined the EEC, and the arguments about the effects of accession on our constitution were fully rehearsed before the recent referendum. The referendum itself was a major constitutional innovation. The European Convention on Human Rights, of which we are signatories, and the interpretations placed upon that Convention by the European Commission or European Court, appear likely to make an increasing impact upon practices in this country, as in others, with what consequences we cannot yet know.
Referring to the European Convention on Human Rights, I should like to take up a point which was made by the hon. Member for Down, North and the right hon. Member for Taunton about the number of United Kingdom petitions to Strasbourg. Comparisons between the experiences of States under the European Convention on Human Rights are difficult as the periods for which States have accepted the right of individual petition are so varied. The number of United Kingdom petitions declared admissible—that is, worthy of deeper examination by the European Commission of Human Rights—was greater in the period for which figures are available than those of other States which are also subject to the petitions procedure. However, the number is not large. The United Kingdom figure for 1966 to 1973 was 43. A number of those were concerned with immigration and raised the same points. If those cases are treated as one, the United Kingdom figure is not out of keeping with those of other countries.
The fourth change or development which we are witnessing, and perhaps potentially the most significant of all, is the progress which we are making towards a degree of devolution for the various parts of the United Kingdom. But it is 86 far too early to say what the full implications of all those several developments will be. As their full effects become apparent, the Government will welcome further public discussion about this important issue. Meanwhile, wherever this discussion may lead, it would be wrong to suppose that the absence of a Bill of Rights in any way bars the path towards the enlargement of the true freedom of the individual and the enrichment of opportunity.
Many examples cited by hon. Members this afternoon alleged the infringement of human rights. For many of them there is nothing to stop Parliament from taking action where necessary. We have established legislation to create a parliamentary commissioner, a local government commissioner, a health service commissioner; the laws against racial discrimination and to enforce equal pay; and the current Bill to give equal opportunities to men and women. All those amply demonstrate the powers which Parliament already has. The Government will continue to protect the basic rights and liberties of the citizen and to ensure that they are effectively safeguarded.
The Governmet Departments concerned will also continue to make a careful study of all the implications of a Bill of Rights, and we hope that the public debate which has started will continue.
§ 6.18 p.m.
§ Mr. Kilfedder
I am extremely sad that the hon. Lady was not able to respond to the feeling of the House and to offer the hope that there would be a discussion on a Bill of Rights either by a Select Committee or, as I suggested in the motion, by a Royal Commission. I am surprised that the Government were not able to make a reasonable offer, bearing in mind that the Attorney-General, the Solicitor-General, and the former Lord Chancellor, Lord Gardiner, have at different times proposed a Bill of Rights. It seems strange that the Government should not be willing or able to offer something definite.
I do not wish to divide the House on this motion as I believe that a Bill of Rights should not be a political football. I hope that the debate will at least mean that there will be greater pressure for a Bill of Rights and that an opportunity will occur again for a full-length discus 87 sion on the subject. For these reasons I beg to ask leave to withdraw the motion.
§ Motion, by leave, withdrawn.