§ Article 1
§ 1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
§ 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
- (a) in defence of any person from unlawful violence;
- (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
- (c) in action lawfully taken for the purpose of quelling a riot or insurrection.
§ Article 2
§ No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
§ Article 3
- 1. No one shall be held in slavery or servitude.
- 2. No one shall be required to perform forced or compulsory labour.
§ 3. For the purposes of this Article the term "forced or compulsory labour' shall not include:
- (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 4 of this Convention or during conditional release from such detention;
- (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised service exacted instead of compulsory military service;
- (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
- (d) any work or service which forms part of civil obligations.
§ Article 4
§ 1. Everyone has the right to liberty and security of person.
§ No one shall be deprived of this liberty save in the following cases and in accordance with a procedure prescribed by law:
- (a) the lawful detention of a person after conviction by a competent court;
- (b) the lawful arrest or detention of a person for non-compliance with the lawful
493 order of a court or in order to secure the fulfilment of any obligation prescribed by law;
- (c) the lawful arrest or detention of a person affected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
- (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
- (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addits, or vagrants;
- (f) the lawful arrest or detention of a person to prevent his effecting an unauthorising entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
§ 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
§ 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
§ 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
§ 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
§ Article 5
§ 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interest of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
§ 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
§ 3. Everyone charged with a criminal offence has the following minimum rights:
- (a) to be informed promptly, in a language which he understands and in detail, of the
494 nature and cause of the accusation against him;
- (b) to have adequate time and facilities for the preparation of his defence;
- (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
- (d) to examine or to have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
§ Article 6
§ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
§ 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
§ Article 7
§ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
§ 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
§ Article 8
§ 1. Everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
§ 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedom of others.
§ Article 9
§ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent the Scottish 495 Assembly or Executive from requiring the licensing of broadcasting, television or cinema enterprises.
§ 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
§ Article 10
§ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
§ 2. No restriction shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
§ Article 11
§ Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
§ Article 12
§ Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
§ Article 13
§ The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
§ Article 14
§ Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
§ The preceding provisions shall not, however, in any way impair the right of the Scottish Assembly or Executive to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.496
§ Article 15
§ No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the Scottish Assembly or Executive shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
§ Article 16
§ No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.
§ Article 17
§ 1. Everyone lawfully within the territory of Scotland shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
§ 2. Everyone shall be free to leave Scotland.
§ 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety for the maintenance of "ordre public" for the prevention of crime, for the protection of the rights and freedoms of others.
§ 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.
§ Mr. Brittan
New Clause 4 and the other new clause and new schedule which we are to debate with it raise important constitutional issues, not all of which are related directly to the subject of devolution and the method of devolution put to the Committee by the Government. Therefore, I very much hope that when considering these new provisions, right hon. and hon. Gentlemen will not do so from an entrenched position reflecting their basic view on this legislation but will consider them in a rather separate sense, particularly when I stress that these provisions in no sense seek to wreck the Bill. They reflect a particular view as to the way in which devolution should operate, if devolution takes place. I repeat that they are not aimed at wrecking the Bill and there is no reason why, if they are passed, those who favour the Bill should feel unduly discomforted. Equally, if they are passed, there is no reason why those who are against the Bill should feel that they have in any way lost out. I suggest that these provisions should be considered on their merits.
The purpose of these new clauses and the new schedule is to provide Scotland 497 with a Bill of Rights. The rights and freedoms that will be protected if this Bill of Rights new clause is passed are those set out in the European Convention of Human Rights to which the United Kingdom is already a signatory, with slight alteration reflecting the fact that some are not applicable to a devolved Scotland because of the limitation on the powers of the Scottish Assembly and the Scottish Executive.
If this Bill is to pass, we are in effect providing a written constitution for Scotland, and virtually every such constitution which has been promulgated from that of the United States onwards has included a Bill of Rights. We therefore believe that it is only right that the people of Scotland, if they are to have a devolved system of government, should also have the benefit of a Bill of Rights that is characteristic of written constitutions and of systems of government of this kind.
Personally, I wish that the United Kingdom as a whole had the benefit of a Bill of Rights as part of the law of the land. But we are not legislating for the United Kingdom as a whole in these proceedings and nothing that we do in Committee can provide by means of this Bill a Bill of Rights for the United Kingdom as a whole. That does not seem to me to be a reason for Scotland not to enjoy the benefits of a Bill of Rights.
I would say to those hon. Gentlemen who favour the cause of a Bill of Rights for the United Kingdom as a whole that I can think of nothing that would advance further and give greater reality to that cause than the promulgation of a Bill of Rights for Scotland as a first step.
§ Mr. Eric S. Heffer (Liverpool, Walton)
Will the hon. Gentleman say who will interpret the Bill of Rights? Will it be interpreted by the judges, will it increase their power, and where will this put Parliament in respect of this legislation? In other words, who will determine what is the law and what is not the law, and who will determine how one makes the law under this kind of system?
§ Mr. Brittan
I shall cover these points a little later. If I fail to do so, I hope that the hon. Gentleman will intervene later. I want to carry him with me on these matters.
498 The answer in such a succinct form at this stage is that it involves judicial interpretation, but no more judicial interpretation than is already involved in the Bill. Parliament will in no way be affected. The sovereignty of Parliament will not be diminished by one jot or tittle. That is the short answer, but I shall elaborate a little later in my remarks.
I believe that those who favour a Bill of Rights for the United Kingdom as a whole will find that the passage of this Bill of Rights for Scotland in particular would greatly further the cause of a Bill of Rights for the United Kingdom as a whole.
At the moment legislation has been proposed to that effect from the Liberal Benches in the House of Lords and is being considered by a Select Committee of that House. Other distinguished figures have come out in favour of a Bill of Rights for the United Kingdom. I believe that if Scotland is given a Bill of Rights in the first instance that would be a case of Scotland acting as a pioneer leading to the acceptance of a Bill of Rights for the United Kingdom as a whole.
I also wish to make it clear that this proposal is in no sense meant to imply that the devolved Assembly and the devolved Scottish Executive would in any way be more likely to infringe the rights that are protected by a Bill of Rights than would the United Kingdom Government or this Parliament. Instead, I would argue that in a devolved Scotland ordinary citizens should be provided with the machinery and the legal means of protecting and enforcing those rights which we do not have in the United Kingdom as a whole but which I personally would like to have.
§ Mr. John Stokes (Halesowen and Stourbridge)
Does my hon Friend also agree that this Bill makes a new written constitution for that part of the United Kingdom we call Scotland, that a written constitution is something new in British history, and that such a constitution requires written safeguards?
I endorse every word my hon. Friend said. The effect of the passage of these provisions would be that action taken by a Scottish Assembly and Executive would be void if it infringed the Bill of Rights. That would mean—this picks up the point made by the hon. 499 Member for Liverpool, Walton (Mr. Heffer)—that an individual citizen would have the right to redress in the ordinary courts of the land if the Scottish Assembly or Executive acted in that way. It is absurd for anybody to suggest that that could never happen. It is in no sense a criticism of the future conduct of the Scottish Assembly or Executive to suggest that it might happen because it certainly could happen. I suggest that in the case of the United Kingdom Government, as we now stand, there have been many occasions on which infringements of the Bill of Rights which are equivalent to a European convention have been alleged against the United Kingdom Government and action has had to be taken to deal with the situation. [Interruption.]
Let me mention as an example the changes in the prison rules as a result of one adjudication.
§ Mrs. Winifred Ewing (Moray and Nairn)
Does the hon. Gentleman agree that if there had been a Bill of Rights in the United Kingdom it would not have been possible for the extraordinary vote to take place last Wednesday about changing the rules of what has normally been regarded as the constitution?
§ Mr. Brittan
I would not agree with that. [Interruption.] But, happily, the case for the Bill of Rights is not dependent on forming a view on such controversial propositions as that.
§ Mr. Tam Dalyell (West Lothian)
May I ask the hon. Member for Cleveland and Whitby (Mr. Brittan) what may be a very ignorant question? Where does Schedule 557 come from? I think that we ought to know something about its origins. We are told, among other things, thatNo one shall be held in slavery or servitude.
§ Mr. Brittan
It is a direct quotation from the convention to which we are a party, and I shall come to that in a moment.
§ Mr. Heffer
On a point of order, Sir Myer. I heard the hon. Lady referring to ballot rigging in relation to the vote that took place last Thursday evening. I 500 understood that a number of hon. Members of the Scottish National Party, together with Whips from the Labour Party were having an argument and holding up the legitimate vote of the House of Commons. If any accusations are to be made, they should be made against the people who were trying to deprive the House of Commons of the opportunity of carrying out a legitimate vote at that time and of discussing and voting upon a legitimate amendment following the vote. I would, therefore, ask that Members of the SNP should keep to the rules of this Committee and not accuse people of ballot rigging when they themselves have indulged in a most reprehensible activity.
§ Sir David Renton
Yes, Sir Myer. I was trying to listen keenly to what the hon. Member for Liverpool, Walton (Mr. Heffer) said. I had difficulty in hearing it all because the hon. Member for Moray and Nairn (Mrs. Ewing) kept up a perpetual, rather high-pitched series of interpolations, which is contrary to the rules of this House. I am reluctant to ask the hon. Member for Walton to make his point of order all over again, but I hope that you, Sir Myer, will call upon the hon. Lady to observe the rules of the House, which are only a matter of courtesy.
§ The First Deputy Chairman
I heard the point of order of the hon. Member for Liverpool, Walton (Mr. Heffer). All I can say is that, irrespective of from which party it came, any allegation of ballot rigging is strongly to be deprecated in this Committee. I need go no further than that, because I am occupying the Chair, but there is quite a lot that I could say elsewhere. But I agree with the right hon. Member and the hon. Member that we should observe the usual practices and maintain the dignity of this Committee at all times.
§ Mr. Brittan
I was saying that there have been many occasions on which we in the United Kingdom have had to deal with alleged infringements of the Bill of 501 Rights. The point of the Bill of Rights, though, is not to punish Governments, whether it is the United Kingdom Government that one is talking about or the devolved Scottish Government. The purpose of the Bill of Rights is to prevent there being infringements of the rights that it is designed to protect. Therefore, it seems to me that it is desirable on that ground as well.
If one is saying that alone, of all Governments, the future Scottish Government will be incapable of perhaps accidentally infringing the Bill of Rights in a way that every other Government from time to time find themselves accused of doing, the proposition is absurd. I operate on the assumption that the Scottish Assembly and the Scottish Executive in respect of the Bill of Rights would behave in a way that is on average no better and no worse than that of any Government. I take the view that all Governments ought to be limited by a requirement to observe fundamental rights of the kind that are enshrined by international agreement in the European Convention, which is reflected in the Bill.
§ 5.15 p.m.
§ Mr. Fred Silvester (Manchester, Withington)
Would my hon. Friend mind reconciling what he has just stated about the Government of the United Kingdom having to modify their practices as a result of the decision of the European Court with his previous statement that if we have a Bill of Rights there is no change at all in the relative positions of the judiciary and the parliamentary system?
§ Mr. Brittan
We have felt obliged to alter our position as a result of the decision of the European Court because we are signatories to the European Convention, and the court has adjudged against us in that particular case.
Nothing done by the passage of a Bill of Rights for Scotland would alter that situation. If anything, it would reduce the number of circumstances in which that is likely to occur, for reasons which I shall come to later. The chances of that happening would be substantially diminished rather than increased.
The extent to which that is likely to occur would not be affected one jot or tittle by the passage of a Bill of Rights. It has occurred because of our being a 502 signatory to the treaty and not because of any legislation. It would not be altered by legislation.
Questions were asked about the contents of the documents. I answered, in response to an intervention, that it reflects, with small changes and small diminutions, the contents of the European Convention to which we are already a party. The convention contains a variety of provisions, both general and particular. By way of example, I refer to a very general one in Article 7:Everyone has the right to respect for his private and family life, his home and his correspondence.However, Article 5.3 is something quite specific. It says:Everyone charged with a criminal offence has the following minimum rights:and so on.
- (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
- (b) to have adequate time and facilities for the preparation of his defence;"
We could argue about what the contents of a Bill of Rights should be. It is certain that if the House of Commons or a Committee of the House sought to reach agreement on what the Bill of Rights should be, we would never reach agreement, because some Members on one side of the House would argue strongly in favour of extensive, libertarian rights of freedom of speech and freedom of expression, and some Members from other parts of the House might argue in favour of incorporating in a Bill of Rights provisions protecting property rights. Therefore, there would not be agreement. That might very well be an insuperable objection to a Bill of Rights.
However, very fortunately, before those matters became as controversial as they are today, the United Kingdom Government became a signatory to the European Convention, to this particular package of rights. The history of it dates back very far. I understand that the basic documents from which the European Convention ultimately emanated were largely of British creation, as it happens.
Be that as it may, it is right to say that the United Kingdom Government are signatories to that convention. Both major political parties have had their turns in Government since that was the case, and 503 neither political party has sought to renounce the convention or to express any doubts about it. It goes beyond that.
§ Mr. Brittan
In a moment. It goes beyond that. Not only have both political parties accepted the convention but both political parties have accepted the right of individual petition to the Commission and then to the court to deal with it.
§ Mr. Brittan
The hon. Member asks what has changed. I am coming to that in a moment. What both political parties have done is to incorporate the convention in the law of the United Kingdom. That means that if it is found that we are in breach of the convention through any legislation or Executive act, the matter has to be taken to the European Commission and then to the European Court. The British courts have no jurisdiction in the matter at all. Absolutely nothing can be done here.
Every time there is any allegation of an infringement, we have to wash our dirty linen in public. That is exactly what happened in the Ireland situation, and it is happening now about the Isle of Man. What I am saying in support of the new clause is that this is a unique opportunity to enact a Bill of Rights for Scotland. There are problems about doing that.
§ Mr. Russell Johnston (Inverness)
I am not a lawyer. It is suggested that it would create legal difficulties if the European Convention was, as it were, integrated into Scottish domestic law by virtue of the acceptance of this Bill of Rights as part of the devolution Bill when it was not integrated into English domestic law. Is that so?
§ Mr. Brittan
Faced with an abstract proposition of that kind, I cannot say that there are no legal difficulties in doing that, because the nature of the legal difficulties has not been put to me. I see no reason why there should be any insuperable difficulties to doing so. I have an argument, to which I am com 504 ing, which seems to suggest strongly that any difficulties that there might be are not insuperable. In answer to a general proposition, I would not like to say that there are no problems at all, but I cannot believe that there are insuperable difficulties of that kind.
§ Mr. Andrew F. Bennett
If this became the law and someone in Scotland chose to take a case to court in Scotland and received a judgment with which he was perhaps unhappy, and he then used his rights as a United Kingdom citizen to take it to the European Court and possibly achieved a contrary judgment, what would the position be? Would the judgment in Scotland run, or would it be the judgment of the European Court?
§ Mr. Brittan
I hesitate to answer propositions of law in the presence of the Lord Advocate. However, I know that I shall be corrected if I am wrong. As I understand it, the position concerning the law of Scotland and, indeed, the law of the United Kingdom, would be that the judgment of the Scottish court would stand, but concerning international law and our international obligations, the decision of the European Court would be the law.
But then what would have to happen would be that the Council of Ministers would have to consider the matter, and pressure would be put on the United Kingdom Government to make their law conform to the European Court's decision, it having been found that, contrary to the decision of the Scottish court, there was a breach of he Convention. I see that I am not corrected by the Lord Advocate, and I draw some comfort from that on this occasion.
As I see it, there is a unique opportunity to enact a Bill of Rights in Scotland. As I have said, I think that it ought to be enacted for the United Kingdom as a whole, but I readily concede that there are problems about doing that, and they are problems to which reference has already been made. There is the problem that it is thought that the enactment of a Bill of Rights in the United Kingdom would be inconsistent with the sovereignty of Parliament. That would certainly be true if what was suggested was that the Bill of Righs should be entrenched in any way—in other words, if there was any suggestion that subsequent legislation which was in 505 breach of the Bill of Rights would be something that he House of Commons and Parliament could not pass.
Various ways of dealing with that problem have been suggested, such as having a Bill of Rights which was not entrenched but would be regarded as a canon of statutory construction rather than a limitation on Parliament subsequently. Unfortunately, however, that is not a problem that we have to consider because we are considering not a Bill of Rights for the United Kingdom but a Bill of Rights for Scotland.
Concerning Scotland, in the Bill that the Government have placed before us the Scottish Assembly's powers are already very carefully and narrowly defined. If the Scottish Assembly or the Scottish Executive act outside those powers, they are acting ultra vires and the Assembly Act is of no effect and is void. The Acts of the Executive can be restrained, and they can also be declared void.
Therefore, in including in this Bill of Rights further limitations on what the Scottish Assembly and the Scottish Executive can do, we are in no way acting inconsistently with the basic principle of the Scotland Bill, which is absolutely chock-a-block with limitations on what the Scottish Assembly and the Scottish Executive can do. For example, if we can have in the Bill a provision that says that the Scottish Assembly can legislate for the protection, improvement and maintenance of salmon and freshwater fisheries but it cannot control fish diseases, it seems to me that we are prescribing in a fairly close way the limitations on the powers of the Scottish Assembly, and perhaps quite rightly so.
The only difference between the limitations in the Bill and the limitations that the new clauses seek to introduce is that whereas the limitations in the Bill are in a real sense limitations on the governmental and legislative powers of Scotland, the new clauses are primarily concerned with giving rights to individuals. Therefore, it seems to me that it is entirely apt to include a Bill of Rights as a limitation, but a positive limitation, in the Scotland Bill. If it is right that government generally should be limited by obligations of this kind, it seems that there is a strong case for using this opportunity.
506 However, there are those who question, none the less, whether it is right that a Bill of Rights of this kind should be included for a devolved legislature. All I would say is that I do not see why not, provided that it is made quite clear that the reason for doing it is not out of any disrespect, hostility or suspicion as to what the Scottish Assembly might do, but because we have opportunity here, with a written constitution and with a devolved Government, to do something which the doctrine of sovereignty does not, in my view, prevent, although it at least creates problems concerning the United Kingdom as a whole.
As it happens, this problem has been considered by a most authoritative body, the Standing Advisory Commission on Human Rights in Northern Ireland, which has produced an extremely telling, thorough and well-researched document on the protection of human rights by law in Northern Ireland. That goes far beyond the mere question of Northern Ireland and the particular situation there. It throws a lot of light on this question generally. At paragraph 6.15 in page 60, the report says,Although we are firmly of the opinion that the best way to provide comprehensive protection for human rights in Northern Ireland would be to incorporate the European Convention into the domestic law of the United Kingdom as a whole, we would not rule out the introduction of a Bill of Rights limited to Northern Ireland in all circumstances. We believe that in the event of the return of devolved legislative and executive functions to a new government in Northern Ireland (either before or after the incorporation of the European Convention into domestic law), it would be desirable for the enabling legislation to include a clear and enforceable charter of rights for Northern Ireland.That is exactly what we are proposing to do for Scotland. The basic decision whether any of Scotland, Northern Ireland, England or Wales should be limited in any way is one that has been taken in the international sphere. This does not involve any diminution of the sovereignty of Parliament, but—
§ Mr. Brittan
I am sorry, but it does not, because Parliament is as able as ever to pass an Act which is an infringement of the Bill of Rights. In doing so, it is not in any way bound or limited by any constitutional barrier. What it would be doing is putting the United Kingdom in 507 breach of its international obligations, but it can very well say "We are limiting the powers of the Scottish Assembly in all sorts of respects, and one of the respects in which we are doing that is that it shall not act in breach of the Bill of Rights."
§ The Minister of State, Privy Council Office (Mr. John Smith)
Before the hon. Gentleman leaves the question of the Standing Advisory Commission's report on Northern Ireland, will he also reflect that in paragraph 3.01 the report says,The obligations of the United Kingdom Government under international treaties (especially the European Convention) and the corresponding rights and freedoms which they confer apply to the entire territory of the United Kingdom. It would therefore be artificial and impracticable to consider their implementation within an exclusively Northern Ireland context.
§ Mr. Brittan
But that is the subject of the paragraph that I read. That is not fair. The hon. Gentleman is doing less than justice to his normal standard of fairness, because what he was ignoring was that what the report is saying is that as long as there are no devolved institutions in Northern Ireland, there is no case for treating Northern Ireland separately from the point of view of the Bill of Rights. The Minister may disagree with the document, but it clearly says, not only in paragraph 6.15 but in its summary, that if there is to be devolution to Northern Ireland of substantial legislative and administrative powers, it favours the enactment of a clear and enforceable charter of rights for Northern Ireland, whether or not there is such a charter for the rest of the United Kingdom.
§ 5.30 p.m.
§ Mr. John Smith
I was pointing out what I saw as a certain inconsistency in the conclusions of the Commission's report. I do not believe that the fact that there is to be a devolved Assembly makes much difference to the practicality of enforcing a Bill of Rights.
§ Mr. Brittan
I did not realise that the Minister was not saying that the report did not say what I claimed it said, but rather that he disagreed with the document.
There is a clear distinction to be made. With devolution we are handing over a 508 new constitution and the right to make laws. Even in a federal system, which provides for the right to make laws of all kinds, there is always a Bill of Rights. We are saying that there are all sorts of limitations on the Scottish Assembly and that it is entirely reasonable that one of those limitations should be that the Assembly may not act in breach of the Bill of Rights to which the United Kingdom is a signatory and by which it is bound internationally.
§ Mr. Rooker
The hon. Gentleman seems to have glossed over the point about the constitutional limitations on the powers of a legislature. Normally, a Bill of Rights is entrenched by putting it to the people and any change in the Bill can occur only if it is approved by the people. The Scotland Bill will be put to the Scottish people and will become entrenched in a way in which our legislation is not normally entrenched. We can overturn tomorrow what we pass today. Of course the referendum is consultative, but this matter will be put to the Scottish people as a Bill of Rights and will surely present a constitutional barrier and a restriction on the legislature.
§ Mr. Brittan
It will not be a constitutional barrier to the United Kingdom legislature, because what is proposed is that the Scotland Bill should be put to the Scottish electorate. If the Bill of Rights is included in the Scotland Bill, the people of Scotland may say that they want the scheme of devolution and the Assembly with the powers proposed for it and the limitations on those powers.
The limitations can be found in Schedule 10 of the Bill which goes into the most minute detail on this question and sets out the statutes which can or cannot be amended. Therefore, we are saying that the Scottish Assembly will be able to operate only within certain confines. If we accept the Bill of Rights, we shall be adding to the limitations on the Assembly, but, taking the more positive view, we shall also be giving an opportunity to the citizens of Scotland to have rights in respect of the Assembly and Executive which they do not have in respect of the United Kingdom Government exercising comparable functions now.
I believe that such a move would lead comparatively quickly to a Bill of Rights 509 for the United Kingdom. The House is all too well aware of my position on this legislation, but why should we not, for once, extract some good from bad and allow the Assembly to act as a trailblazer for the United Kingdom as a whole?
§ Mr. Charles Fletcher-Cooke (Darwen)
My hon. Friend is putting forward his proposal as a tempting experiment and suggesting that we should try it out on the Scots. There is a certain attraction in that, but until the English followed the Scottish example, as my hon. Friend hopes they would, would there not be a great disparity between Scotsmen, who would have recourse to their own courts, and Englishmen, who would not?
§ Mr. Brittan
All sorts of disparities are being created, but this is, at least, a favourable one. My hon. and learned Friend will see that it is a procedural disparity rather than a substantive disparity. The United Kingdom citizen will have his redress at one remove—from the European Court. The Scottish citizen will have direct redress from the Scottish courts.
§ Mr. Dalyell
This is very much a lawyer's matter, but should not those of us who are concerned about the possibility of one abortion law on this side of the border and another being created north of the border be equally concerned about a different set of laws, on the basis of differences, rather than merits or demerits, on each side of the border?
§ Mr. Brittan
The hon. Gentleman is right to be concerned about all these matters, but the only answer to those problems is to defeat the Bill. We share a view on that, but if the Bill goes through, my proposal would be a limitation on the Assembly and Executive in favour of the citizen of Scotland. The power of the Assembly and Executive will otherwise be unfettered.
That is why, in a curious way, this argument is one that should attract supporters and opponents of the basic concept of devolution as propounded by the Government. It is not just a question of arguing the case for a Bill of Rights. As I have already pointed out, our position is fundamentally affected because we are signatories to the European Convention Anyone who says that we should not have 510 signed that convention or that it should be renounced must argue that at the appropriate time, but no Government of political party has said that we ought not to have signed it.
Not only are we signatories to the convention, but we have accepted the right of individual petition. The United Kingdom is bound in international law by that convention and there are important consequences flowing from that fact. It is a powerful argument in favour of the enactment of a Bill of Rights for Scotland.
If such a Bill were not passed and the Scottish Assembly or Executive did something in breach of the convention, it would not be Scotland which would be internationally liable, it would be the United Kingdom. Scotland would have no international existence in that sense and the United Kingdom would have to carry the can for what the Assembly and Executive had done, in exactly the same way as we are facing difficulties over the situation in the Isle of Man. I would not dream of prejudging or expressing a view on that case and it is irrelevant whether we are found to be in breach or not. What is relevant is the truly ludicrous sight of a British law officer going to the European Court and saying that Britain is defending legislation with which it totally disagrees since, because of the constitutional position of the Isle of Man, there is nothing we can do about it.
I do not want us to be placed in the same position in respect of the Scottish Assembly and the Scottish Executive. It would be uncomfortable, diplomatically unnecessary, internationally embarrassing and domestically a major source of irritation between the United Kingdom Government and Scotland.
Before responding to an intervention, I deal with the point that I suspect the Minister of State will make in reply. It is right to say that if any legislation that that Assembly passes is, in the opinion of the Secretary of State, in breach of our international obligations—from the Minister of State's smile I assume that I have guessed the point.
§ Mr. Brittan
At any rate, under Clause 20 (1) the Secretary of State has power not to allow Assembly law to be an Act 511 of the Assembly. That is also the position under Clause 37(2). If it is an Act of the Executive, the Secretary of State can have it declared null and void in the first place. That would apply to obligations under the European Convention as well as any other conventions. That is because they are international obligations to which we are a party.
I say to the Minister of State that the position is exactly on all fours with that of the Isle of Man. As I am sure the hon. Gentleman knows, or as he would be advised, we as a sovereign Parliament have the right to legislate for the Isle of Man. That is the position if we want to do so, and it might come to that if the court decision goes a certain way. I am saying that it would be more damaging and far more full of conflict to require the United Kingdom Government in the shape of the Secretary of State to intervene under Clause 20 and to refuse to enact or to allow a Bill to be enacted than for the matter to be considered by the courts of Scotland.
A political intervention to the effect that we cannot allow that to be done because it is in breach of the European Convention and therefore, in breach of our international obligations, would be far more unacceptable to the Scottish Assembly and the Scottish Executive than an adjudication by a Scottish judge. Therefore, we should make it clear that the convention is part of the constitution of a devolved Scottish Assembly rather than require a United Kingdom Minister to intervene.
The distinction is not so much between action being taken by an executive politically and action being taken judicially. The distinction is between action being taken by the United Kingdom Government and action being taken within the Scottish system in the Scottish courts.
§ Mr. Dalyell
There are three lawyers on the Front Benches and I wish to ask a factual question as a layman. Is it the fact that at Strasbourg counsel for the Home Office said that the British Government, in common with every other 512 European country, disapproved of birching? It was left to another member of the United Kingdom delegation, in this instance the Manx Attorney-General, to defend the practice of birching, which he did with enthusiasm. Does it follow that in a similar situation it would be left to a Solicitor-General, Lord-Advocate, or whatever law officer is to be called in the Assembly, to be part of the United Kingdom delegation at Strasbourg and to argue a different case from that put forward by the United Kingdom Government? Is that the fact of the situation?
§ Mr. Brittan
Yes, unless the Secretary of State exercised his powers under Clauses 20 or 37 and said to the Assembly or Scottish Executive "Although this is within your legislative competence, your executive competence, we are not allowing it to be done because it is in breach of an international obligation."
I am saying that the political consequences of an intervention of that sort by a United Kingdom Minister, thereby stopping the Assembly or Executive from doing something because of a juridical or judicial matter—namely, the application of the Convention—would be far more damaging to good relations between the United Kingdom and Scotland, and far more subversive in that sense, than a Scottish court deciding the fact in the ordinary course of Scottish litigation.
§ Mr. Brittan
I think that the Minister was first, followed by my hon. Friend the Member for Manchester, Withington (Mr. Silvester) and my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn).
§ 5.45 p.m.
§ Mr. John Smith
The hon. Gentleman has been putting great stress on the European Convention, but is it not the case that he is not proposing a Bill of Rights adapted for the Assembly, if that were a good idea, but suggesting instead of a Bill of Rights—but calling it a Bill of Rights—that the European Convention on Human Rights should be directly enforceable in Scotland but nowhere else?
§ Mr. Brittan
I do not find that a telling intervention. Whether it is called a Bill of Rights or the European Convention is purely a matter of words, and I do not care which form of words is used. I do not think that the hon. Gentleman can accuse me of disguising its name. This is an example of the Minister saying that heads he wins and tails I lose. If I had sought to alter the European Convention, he would have said that the rest of the United Kingdom is to be bound merely by the European Convention internationally, but that that is not good enough for poor old Scotland, which has to have more restrictions because the wicked English think that the Scots will misbehave themselves. With all respect to the hon. Gentleman, that is an absurd argument.
§ Mr. Brittan
I shall accept two more interventions so long as I am not accused of acquiring the mantle of the hon. Member for Berwick and East Lothian (Mr. Mackintosh), who was accused of conducting a seminar. I do not aspire to or desire such an academic mantle, but on those terms I give way to my hon. Friend the Member for Withington.
§ Mr. Silvester
May I draw attention to one other difference between my hon. Friend's proposal and that of the European Convention? As I understand it, the convention, in so far as it relates to individual petition, is accepted by this country on a voluntary basis for a period of years, which expires in 1981. That is the longest period for which we have renewed it. On previous occasions it has been less than five years. Whereas with the European Convention we are dealing with a much shorter time span, which might be considered experimental, I understand that what my hon. Friend is proposing is permanent.
§ Mr. Brittan
It is not permanent in the sense that it is enshrined in an Act of Parliament. Although the right of individual petition expires in 1981 on the basis of our present accession, that is not true about our adherence to the Convention generally, which I understand is of a more permanent nature. If at some future time we wished either to renounce the 514 Bill of Rights in the form of the European Convention or to modify it, or if it were to be renegotiated, Parliament as a sovereign body would be entitled to make the corresponding deletion, alteration or diminution from the Bill of Rights as it affects Scotland.
I do not think that my hon. Friend need be troubled on that score. If we decided that the burdens of the convention were unacceptable, we should not renew the right of petition. We should seek some way out of the convention and it would be the easiest thing in the world for the House of Commons, which in any event would have to be involved, to pass the corresponding amendment to the Scotland Bill.
I give way to my hon. and learned Friend the Member for Kinross and West Perthshire.
§ Mr. Fairbairn
I return to the Isle of Man case. In that case the Attorney-General, who is a Member of the Isle of Man Parliament, was arguing on behalf of that Parliament, but any Scottish Law Officer would not be an elected Member of the Scottish Assembly. He might be, but it is unlikely. We would have a situation in which a Member of the House of Commons would have to act as defence counsel for a Scottish Assembly, with which he might totally disagree. Does not that raise a horrific concept?
§ Mr. Brittan
I think it does.
I turn now to the objection that I anticipate will come from the Minister, because analogous objections have been put forward on other occasions. The enactment of this Bill of Rights would involve the courts in controversial political matters. There are those who do not wish judicial intervention or involvement in controversial political matters and feel that the courts are inappropriate to deal with such matters.
There are two answers to that objection. The first is that such hon. Members should be opposed to the Bill altogether, because the courts will be absolutely in the heart of controversial political matters in considering whether the Scottish Assembly or Executive has acted ultra vires.
For example, in Schedule 2, paragraph 8, we find an increase in the powers of the Scottish Assembly. That provides that 515 the paragraphs in the preceding part of the scheduledo not prevent any provisions from being within the legislative competence of the Assembly if those provisions—(a) are necessary or expedient for making other provisions effective or for the enforcement of other provisions".It would be difficult to think of a more touchy political question than whether particular provisionsare necessary or expedient for making other provisions effective or for the enforcement of other provisions".Yet that is the kind of question that the courts will have to consider.
The Minister has worked extremely hard, but I think it would be a bold man who would say that the definition of what is or is not within the power of the Scottish Assembly is so precise that there will not be occasions when difficult and acute questions arise whether the Scottish Assembly and/or Scottish Executive has exceeded its powers.
Such questions will be in form judicial and in form a matter of statutory interpretation, but in reality they will amount to judicial intervention of the most acute and anxious form in the political process.
The provision in the Bill is for involvement at two stages. First, before the Bill becomes law, the Judicial Committee can be asked whether it is within the powers of the Scottish Assembly. Secondly, the Judicial Committee or other courts can be asked whether, in accordance with the provisions of Schedule 12, a particular Bill or Act of the Executive is beyond the powers of the Scottish Assembly. That is what courts do now in the sense of interpreting Acts of Parliament. But to intervene in considering whether a devolved Assembly is exceeding its powers is clear judicial intervention in the political affairs of that Assembly.
I am totally in favour of that process, but I submit that we cannot, on the one hand, have this kind of judicial intervention and, on the other hand, keep the courts out of it. The courts are into it up to the neck.
The Minister will recall that in earlier versions of the Government's proposals the courts were not involved to nearly the same extent as they are now. The hon. Gentleman, in response to criticism, accepted that the courts had to be 516 involved. Therefore, it will be a matter of statutory interpretation whether the courts find that the Scottish Assembly or Executive acted in breach of the Bill of Rights that forms part of the Scotland Bill if the new clauses go through.
First, the courts are there already. Secondly, apart from the Scottish or United Kingdom courts, as my hon. Friend the Member for Withington pointed out, the right of individual petition means that in any event the courts are involved because an individual, whether in Scotland, England or the Isle of Man, can claim that there has been a breach of the European Convention and take the matter, first, before the Commission and ultimately before the European Court. Therefore, without these new clauses, the individual citizen can test whether there has been a breach of the Convention by the devolved Scottish Assembly and Executive.
In opposing the new clause on those grounds the Minister will be saying "It is all right for a foreign court to look into these matters, but it is unacceptable to take them before a Scottish or a United Kingdom court. We do not mind the individual going to the Commission and then going on to the European Court and arguing his case there, but we shall not allow him to come to the Scottish courts first".
I suggest that it is infinitely less humiliating and embarrassing, as long as the United Kingdom is a signatory to the convention, to have these matters looked at by the domestic courts of Scotland and of England instead of by the European Court.
It is right to say that, as has been pointed out, if the individual citizen is not satisfied with the answer given by a Scottish court, he can still go on to the European Court. But I believe that the Scottish and English courts would be capable of interpreting the Bill of Rights in a way that would accord with the European Court and the job would be done within the British Isles. That seems to be more commensurate with our dignity as a nation than to be alone among the signatories to the convention in refusing to allow our domestic courts to touch the matter.
§ Mr. Rooker
If that is the position—I know that I am about to use an argument that my hon. Friend the Minister of 517 State will use against me later—what is to stop the Scottish Executive legislating and passing a Bill of Rights in the same terms as in the schedule? Surely that would meet the operational argument put forward by the hon. Gentleman. What is to stop the Scottish Assembly giving to Scottish people the protection of a Bill of Rights?
§ Mr. Brittan
The answer is twofold. First, such a Bill of Rights passed by the Scottish Assembly would encounter the same problem—namely, the sovereignty of the Scottish Assembly—as we would if we tried to enact a United Kingdom Bill of Rights. In other words, the Scottish Assembly, having passed it, could repeal it. However, if we, as the constitution makers and the creators of the Scottish Assembly, create a Bill of Rights for Scotland, it cannot be repealed in that way.
Secondly, if the Scottish Assembly does not choose to do that, we are still responsible in the same way as in the Isle of Man.
§ Mr. Timothy Raison (Aylesbury)
Is it within the devolved powers of the Scottish Assembly to pass such a measure?
§ Mr. Brittan
I should have to consider that question. I cannot give a positive answer. I think that it probably is, but I should not like that to be taken as my considered opinion.
These new clauses are not designed in any shape or form as a hostile act towards the Scottish Assembly or Executive. It is no secret that I am opposed to this form of devolution. It is not primarily because of that opposition that I bring forward these new clauses. It seems to me that, great as the mischief of the Bill and great as the damage that it is likely to create is, in one respect, and in one respect only, it provides us with an opportunity to act in advance of the United Kingdom as a whole. It would be a tragedy if, for reasons of suspicion or prejudice, we failed to take that opportunity. It is in that spirit that I commend the new clauses to the Committee.
§ 6.0 p.m.
§ Mr. Andrew F. Bennett
It is unfortunate, to say the least, that New Clauses 2 and 9 were not selected. The clauses that we are discussing cover the same 518 issues but in a less specific way. I am disappointed that they do not go further. All that they do is to transfer powers which already exist from the European Court to the Scottish courts. I should have been happier if there had been an attempt to include more specific and, in some areas, more important rights. I suspect that we should enter areas of difficulty and controversy if we tried to do that but we should try to grapple with these problems rather than merely transfer existing powers.
The arguments for devolution or independence have two strands. One strand is the allocation of resources and the other the method of Government. The new clauses and new schedule involve both those strands, although the sections dealing with the economic problems are shorter.
The economic argument about devolution is totally unacceptable to me and my constituents. If devolution brings Scotland extra resources and that is at the expense of the rest of the United Kingdom, it is not on for me or for my constituents.
Many people say that if Scotland is to have the lion's share of United Kingdom assets, such as the oil, it must be prepared to carry the lion's share of United Kingdom liabilities. It should have responsibility for the national debt and possibly for our NATO commitment. Northern Leland is closer to Scotland than it is to England.
§ Mrs. Winifred Ewing
Is it not rather strange for the hon. Member for Stockport, North (Mr. Bennett) to talk about the selfish Scots? When I was in Parliament for the first time the argument was that Scotland was too poor for self-government. Is the argument now that Scotland is too rich?
§ Mr. Bennett
We should treat the people of the United Kingdom equally and not indulge in squalid squabbling.
It is suggested that there should be free commerce. The economic argument that Scotland should have extra resources will be totally discredited. Devolution should be opposed if people argue in that manner. The only justification for devolution is if it involves an attempt to reform and improve the method of government. That is why I am disappointed with these new 519 clauses. They do not get down to reforming and improving the method of government. The only way in which a valid case for devolution can be made out is by arguing that it would improve the quality of government and give ordinary people more control over the factors which affect their lives. We should be questioning the Bill on these grounds and asking how far the legislation improves the rights of individuals.
One of the major frustrations for my constituents and for the people of Scotland is that the United Kingdom Government do not control many of the things that they would like to control. We accept that the Government cannot control the weather—although many people blame them for it—but people feel that the Government have not enough power over jobs, multinational companies and world prices.
The truth is that the United Kingdom Government cannot devolve powers which affect many people, because they have not got the power to devolve them. We cannot expect the Assembly to be able to take over those matters which cause frustration to individuals. The proposed devolution will not improve the situation. I firmly believe that devolved government could make a major contribution towards improving government for many people if the new Assembly looked at those areas which cause frustration.
I checked through my correspondence this morning. I have letters about jobs, housing, tax and social security. Half of those letters involve complaints about decisions. Most of them deal with the frustration experienced by those who cannot obtain clear answers or information and from those who do not know what is their position. We must attempt to improve government in that area. We must make government more understandable and acceptable to individuals. We should not concentrate on the rules.
§ Mr. Dalyell
Is my hon. Friend the Member for Stockport, North (Mr. Bennett) aware that in my local Press at the weekend there was a letter from the secretary of the local Scottish National Party which said that one of the attractions of my Government's Assembly was that it would do away with regional 520 government? Does my hon. Friend accept that that is the reverse of devolution, as he understands it, and that an Assembly would centralise rather than devolve many of the decisions about which he is talking?
§ Mr. Bennett
To most of my constituents it does not make much difference whether they have to come to London or go next door to find a bureaucrat, although it may save them money. What is important is to get away from the bureaucratic process. It will not make much difference whether one transfers powers from London to Edinburgh or from one office in Edinburgh to another. The important thing is the way in which the powers are carried out and the amount of information that the bureaucrats are prepared to give.
Both the Bill and the new clauses lay down powers and restraints, but they offer little positive guidance about how the new Assembly should work. That is the key issue—not whether it has power or restraints.
From discussions on earlier clauses I know that the Minister of State believes that the good sense of the people of Scotland should decide how the Assembly should work. He believes that it is inappropriate for the United Kingdom Parliament to suggest how it should work, perhaps because we are so inept and inefficient. On the other hand, because of our experience we could make constructive suggestions. Before the Bill becomes law, we should set out how the Assembly should function in practice. Unless the basic standing orders of the Assembly are set out before the referendum campaign how will the Scottish people know how the Assembly will work and how it will affect them? They could end up with an Assembly which is unacceptable to them.
As the Bill stands, 40 per cent. of the Scottish people must approve devolution, but only 30 per cent. of the people might vote in the first election. In practice, the party in control of the Assembly could poll only 15 per cent. or 20 per cent. of the vote. What are the safeguards for the 80 per cent. of people who did not vote or who voted for a party which does not control the 521 Assembly? Many of those people who have a vote for the Assembly might want a devolved government if they knew its powers.
In new Clauses 2 and 9 we have tried to set out some of the positive things that should be done. Once the Assembly is set up there is a danger that it will have to deal with political hot potatoes. It will want to act to deal with them and it will be reluctant to spend a long time deciding on standing orders. It will not be sympathetic to trouble makers from an opposition party. There will be pressure to race on with the standing orders. It could race ahead by imitating Westminster. But it could, knowing that Westminster is unsatisfactory, race into a set of alternatives which are equally unworkable and impractical.
The amendments list a whole series of fundamental rights, but those rights already exist. All we are talking about is transferring the rights from the European Court to Scotland. However, we should be putting into the Bill at this stage fundamental rights of the greatest importance. The most important are, that the public should have access to all official documents, that the Press and public should have the right to attend all meetings of the Assembly and that every member of the Assembly has to sign a statutory declaration of interest before being permitted to speak in the Assembly.
Those rights are not at present available at Westminster. It is difficult for the Westminster Government to make easy access to all documents available to members of the public because of the security problem. Such a problem would not exist with a devolved form of government. The Scottish Assembly will have very little responsibility for security matters. It will be possible therefore for the Bill to set out these fundamental principles of open government, and not to leave them for the Scottish Assembly to devise afterwards.
We should be saying that we here at Westminster are involved, as a Parliament, in improving the form of Scottish government, that we admit that the present system of government is not successful in communicating information between governors and governed, and that we want to improve this process and therefore will make a firm commitment to open government. I hope that the Minis 522 ter will say what is being done in Scotland to prepare standing orders for the Assembly, and will explain what pressure he is putting forward to get the new Assembly committed to a form of open government which guarantees rights of access to all documents, gives equal access to information for all members of the Assembly, sets out the rights of the Press and the public to attend meetings, and provides for a statutory declaration of members' interests. He should say, if he is not writing those points into the Bill, that he is doing preparatory work so that proposals along those lines can be put to the Assembly.
§ Mr. Silvester
My hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) invited us to take an unentrenched view of this amendment. So unentrenched am I that I shall not be following him into the Lobby. The clause is a grave mistake. It is not true that the Conservative Party is committed to the idea of a Bill of Rights, and I do not believe that we should become so committed by the kitchen door.
It is somewhat naive of my hon. Friend—I do not wish to be rude to him—to say that the purpose of the new clause is to advance further the cause of a Bill of Rights. Although he spent some part of his speech eloquently putting forward the case that would arise if we did not make the amendment in respect of Scotland, the fact is that the motivation for the clause and its likely effect is to take us a step further along the road to a Bill of Rights for the United Kingdom. That is something I strenuously oppose.
The pursuit of a Bill of Rights is undesirable for several reasons. First, the idea of a Bill of Rights is mistaken. My hon. Friend says that both parties are committed to the European Convention. That is true. He says that we have not queried it. But I can assure him that some of us have been trying to, but those efforts do not get much public attention. It is about time, since the matter has now been raised, to bring this question into the open.
The trouble with a Bill of Rights is that it is vague and general. Although I hope we are all united in this House on the idea that we should defend the liberties of the subject, those liberties are specific. As 523 soon as one treats them as being general one gets into political matters.
§ Mr. Fairbairn
There is a specific difficulty with a Bill of Rights in the matter of which my hon. Friend is speaking. While the rights are general, so, of course, are the rights of the citizen in the common law. The difficulty arises when one attempts to enshrine the principles of the common law in the absolute straitjacket of statute.
§ 6.15 p.m.
§ Mr. Silvester
My hon. and learned Friend is absolutely right. I shall be coming to that point.
During the previous interchange my hon. Friend the Member for Cleveland and Whitby did not answer the point which lies at the root of this matter, namely, that there is an inevitable conflict between the powers of the judiciary and Parliament. In this country, for reasons for which others may have their own explanations, we have been the subject of more representations to the Commission on Human Rights in Europe than any other country. Yet it is fair to say, without being immodest, that this country is not the worst in these matters among the signatories to the convention.
One of the reasons for that state of affairs is that we have in operation the three most important elements in maintaining human rights. They are, first, vigorous media, secondly, a vigorous Parliament, and, thirdly, an active judiciary. All these produce circumstances in which people who feel they have a grievance and feel they are up against some encroachment on their rights have a means of expressing that grievance, and it can be taken to the European Court.
§ Mr. Russell Johnston
Will the hon. Member explain to me—I am not a lawyer—how, given these three factors, it is that enshrining human rights in the "straitjacket of statute" diminishes those rights?
§ Mr. Silvester
That is not what I said. I do not think the process diminishes those rights, but nor does it help them. It diminishes the power of this place and other existing bodies to watch over those rights and to see that they are brought 524 up to date and safeguarded. Let me pursue the matter further and perhaps I can give the hon. Member an answer.
The items in the schedule have to be interpreted. We do not have to guess on that score because we can look at what has happened in the European Convention. I tabled a Question to the Foreign Secretary on 23rd January asking what cases Britain was currently being asked to answer at the Commission. He listed 38 such cases. These excluded the Isle of Man, which has gone forward to the court. The reply refers to the preliminary stage. The answer was as follows:
—[Official Report, 23rd January 1978; Vol. 952. c. 448.] That list includes a great many subjects which would not be regarded as suitable for judicial decision. They would be essentially political decisions which would be taken either by a local authority or by Parliament, and they should not be sent away to 13 foreign judges for decision on our behalf.
- (a) aspects of prison treatment and prison conditions;
- (b) deportation;
- (c) corporal punishment in schools;
- (d) the law relating to homosexuality;
- (e) trial procedures;
- (f) the closed shop;
- (g) alleged discrimination in the provision of schools;
- (h) Mental Health Review Tribunals and conditions in Broadmoor Hospital;
- (i) housing in Guernsey;
- (j) the postal service;
- (k) insurance companies legislation;
- (l) the Incitement to Disaffection Act 1974;
- (m) The Prevention of Terrorism (Temporary Provision Act 1975);
- (n)vaccination of Children.
My hon. Friend the Member for Cleveland and Whitby says that it is less embarrassing for the Scottish courts to do it here than for the matter to be dealt with in Europe. But that is not the point. The question is whether we should subject ourselves to that procedure at all. If the answer to that is that we should not, what is the point of enshrining it in a statute of the United Kingdom for the purpose of "advancing further the cause".
It seems to me that, by accident in a sense, the subject has come to the surface at last, and it is worth pursuing it. As I understand the position—any lawyer will correct me if I am wrong—we are bound by treaty to the convention. I think that 525 we can get out of the convention in six months if we wish to do so. The effective part of the convention, the part which bites to the embarrassment of Her Majesty's Government, is that relating to automatic jurisdiction and the private petition. It has been renewed from time to time, and was last renewed for only five years, until 1981. In the period until 1981 we have at least an opportunity to investigate whether we wish to go further along this road.
Without making any comment on the merits or demerits of birching, I suspect that the Isle of Man case will concentrate people's minds very considerably on this matter. I understand the motives of my hon. Friend and respect them, but he cannot evade the point by saying that the position will be slightly better because it will be dealt with in Scotland. That is not really the point at issue.
The point at issue is whether this House—or, in this case, the Scottish Assembly—should be able to make laws which most people would regard as political, and which may, in the case of some of those affected, involve Executive decisions rather than judicial decisions. Such matters are in any case covered by the common law of the land, which looks into matters of fairness. The question is whether we should have these matters handled in that way or whether we are to abrogate the decisions to a court across the seas.
The whole business of human rights has developed in a way which people have not really comprehended. There is another covenant, based in the United Nations, which is not yet fully in operation. The European Parliament has produced a joint declaration, which is not yet effective, but it is asking that it shall be made effective. We shall then be bound by three international arrangements on the question of human rights.
Although the words "human rights" sound splendid, what we really have is a series of generalised statements which have to be interpreted. That interpretation, under the traditional United Kingdom parliamentary system, has been done here in Parliament and in the local authorities. The convention, on the other hand, requires that it should be done elsewhere by unelected people whose cultural and other backgrounds may be quite different from our own.
526 Although I understand that the motive of my hon. Friend—I sympathise with him—is to get at that root point, I think that, far from the new clause being such that we are getting something good out of something bad, we are taking an opportunity to deal with a minor problem in a bad Bill, and producing something which is infinitely worse.
§ Mr. Bruce Grocott (Lichfield and Tamworth)
I shall not follow in detail the speech of the hon. Member for Manchester, Withington (Mr. Silvester), with much of which I agree. At least he has brought the discussion to the crucial point, which is not so much whether people should have rights but rather which body is the best to enshrine, preserve and extend those rights. Should it, on the one hand, be the courts or, on the other hand, should it be Parliament in one form or another?
Although, in moving the new clause, the hon. Member for Cleveland and Whitby (Mr. Brittan), tried to deal with these points, almost as an afterthought at the end of his remarks, he did not deal with them satisfactorily. He dealt with them, of course, from a lawyer's point of view, as one would expect.
I suppose that much of this discussion really originates from the assumption, enshrined in the American constitution, that as soon as one has a written constitution, in whatever form, it becomes important to build in a Bill of Rights which enshrines the rights of the citizens of the country. I do not think that there is any necessary correlation between a written constitution and the need for a Bill of Rights, neither do I necessarily say that because, we have the Scotland Bill, which is about to go on to the statute book, somehow or other we are transformed into a situation in which we have a written constitution.
It seems to me that this measure is no different in principle from measures such as the Treaty of Accession, or other measures which affect our constitution, such as the Parliament Act 1911, or subsequent Parliament Acts which affect our constitution and are Acts of this House which can be amended or repealed by this House. I hope that that principle is still accepted and respected by all of us.
Whether we have a written constitution seems to be rather a bogus question, 527 and certainly not one that is entirely relevant to the decision whether we should have a Bill of Rights. It would be an interesting exercise—but one that would take far too long—to try to compare the position here with that in another Western country, such as the United States. The United States has had a Bill of Rights over a period of 200 years. It has had a written constitution. Our country, with the provisos that I have made, has no written constitution and no Bill of Rights.
It would be interesting to compare the two countries and to discuss whether individual rights have been better preserved in the one country than in the other. I should be quite happy to enter such a debate, and I have no doubt at all where my judgment would be. It would be that rights have been better preserved and enshrined in this country, which has not a written constitution and has not a Bill of Rights.
The Americans have discovered a major problem in the development of their constitution. In theory, there were to be three equal components which could check and balance one another, the legislature, the Executive and the judiciary. The legislature is relatively simple to change, to alter and to influence. The President is considerably more difficult to change, alter, influence and remove. As we know well enough, the President has been removed only once. But it is almost impossible to change, alter, influence or remove the judiciary. Usually, if it is ever suggested in any Western country that the judiciary is wrong in any respect whatsoever, people adopt the kind of cathedral countenance that brooks no opposition and suggests that something tantamount to blasphemy has occurred.
§ Mr. Andrew F. Bennett
In making a comparison between the United States and other Western countries, would it not be better, in trying to set up a new form of government, not to compare and balance one system with the other but to cull the best out of each and put them together? Does my hon. Friend agree that the right of individuals in the United States to inspect the vast majority of Government documents is a very useful one?
§ Mr. Grocott
I listened to the speech of my hon. Friend with great interest and 528 agreed with much of what he said. His proposed new clause, which was not selected, is quite different from the one proposed by the hon. Member for Cleveland and Whitby and comes much closer to what the hon. Member for Withington referred to as specific rights being written into a document so that it can be understood and the courts have very little difficulty in interpreting it. As a rule, courts manage to find difficulty in interpreting all sorts of simple things, but theoretically they should not have great difficulty in interpreting the rights of access to information in my right hon. Friend's new clause. That is a very different proposition from the generalised one that is before the House at the moment.
As to the American constitution, I believe that over the years the Supreme Court and the judiciary have not been very effective in extending human rights. The Supreme Court has been very unresponsive to the way in which people's views change and develop. Although there are certain rights which are valid for all ages and all conditions of men, there are other rights which develop as society develops. The American Supreme Court has been very slow in adjusting to these kinds of developments.
§ Sir Raymond Gower (Barry)
Is not the hon. Gentleman being a little facile in dealing with the matter in this way? Is it fair to make this comparison when we are talking about a country which has had all the problems of an expanding frontier, all the melange of numerous races and all the problems of a very large minority black population? Is it not remarkable how much the United States has achieved in that context and against that background?
§ 6.30 p.m.
§ Mr. Grocott
I shall not develop this discussion. As I have said, it would be an interesting debate, but we could not possibly follow it through now. There are all sorts of difficulties in making this kind of comparison. That I touched on it at all was because it was repeatedly suggested that because one had a written constitution one must have a Bill of Rights to safeguard the people's rights. I do not accept that.
I return to what seems to me to be the central point of this discussion—whether in this country the rights of the people 529 are better secured by generalised Bills of Rights in the way that the hon. Member for Cleveland and Whitby said was to be started in Scotland and would develop thereafter in the rest of the United Kingdom, or whether they are better preserved in Parliament and by Acts that Parliament passes and are then interpreted in the courts.
I have no cathedral countenance that I adopt when I refer to the courts of this country. Anyone who is interested in the liberty of the individual and the development of rights knows the posisition. I shall not dwell at length on trade union rights, but I think of all sorts of important rights which we have come to accept today but which were not accepted a century ago and were very slow to be accepted by the courts. I have no great respect for the courts and their ability to keep pace with changing notions of what liberty should be and with the demands of a modern society.
One of the great problems with the judiciary is that it is almost impossible to alter its composition, let alone criticise it. It remains very old. We talk about the retirement age for everyone but judges. The judiciary remains appallingly unrepresentative in a social sense. I do not think that it should be completely socially representative. That would be a ludicrous proposition. But I understand that every High Court judge had a private education, went to public school.
§ Mr. Grocott
Perhaps there is an exception of one. Perhaps there has been a recent appointment. There is always a tame member of the Opposition who is allowed in to make it look convincing. But the judiciary is hopelessly unrepresentative. It has no concept of the problems and economic hardships of most of the people. It has no concept even of the problems of families bringing up their children and sending them to State schools.
§ Mr. Grocott
The hon. Gentleman should do his homework. What I have just said is incontrovertible. I expected the hon. Gentleman to get hot under the collar. I shall not bother to respond to 530 him, because he is greeted with a certain amount of amusement here. As the hon. Gentleman knows well enough, if he looks at the facts he will find that it is incontestable—I say this slowly so that perhaps he will understand—that the higher echelons of the judiciary are hopelessly unrepresentative. They are representative simply of a tiny, very wealthy, very privileged elite. In a democracy that cannot go on indefinitely. It cannot inspire confidence among the population as a whole.
When I look to the judiciary to safeguard my rights or the rights of my constituents, although the House has many limitations, as have legislatures generally, I much prefer to see those rights cared for by the proceedings of Parliament with all its faults than in the higher echelons of the judiciary.
§ Mr. Grocott
I have spoken for long enough and should come to a conclusion.
If legislation were introduced to construct a legislature like the House of Commons, we should be terrified of what we were doing. The opposition would go on indefinitely, because to give such a body the powers that the House has would be a terrifying prospect. There is no limit to what we can do. There is nothing to stop the House declaring the Conservative Party illegal or extending its own life for 100 years, indefinitely or for whatever period might seem convenient.
In theory, at least, we should be very fearful about entrusting the rights of the people of this country or anyone else to a legislature unchecked as the House of Commons is. But I believe that in practice it has been checked and is checked, that in practice the country's culture and history have meant that there are fairly well recognised boundaries within which the House operates, fairly well recognised rights which the House preserves. At the end of the day the public have the right to remove hon. Members and change the composition of the House, whereas they have no such right with regard to the judiciary.
Therefore, I much prefer to see my rights enshrined in decisions of the House, not the higher courts, and 531 accordingly I hope that the clause will be rejected.
§ Mr. Russell Johnston
This has already been a stimulating and instructive debate. The hon. Member for Cleveland and Whitby (Mr. Brittan) is to be congratulated both on raising the matter and on the way in which he did it. The debate looks like being a good ending to what has been in the main a good-humoured and interesting Committee stage.
From the Liberal point of view the question is not whether a Bill of Rights is acceptable per se but whether it is appropriate to introduce the change in this Bill. I want to concentrate on that matter rather than on the more basic question whether a Bill of Rights is a good thing to have. The hon. Members for Manchester, Withington (Mr. Silvester) and Lichfield and Tamworth (Mr. Grocott) concentrated on that, but we know that there are in the House strong—I will not use the word "intransigent"—opponents of that concept. They say, as did the hon. Member for Withington, that it is better that human rights are protected in this place or in an Assembly rather than that they be protected by X number of judges, possibly, as he said, "of a cultural and other background perhaps different from our own", making judgments.
We on the Liberal Bench do not accept that. That is perhaps most simply evidenced by the fact that two attempts at a Bill of Rights have been made from this Bench, one by my hon. and learned Friend the Member for Montgomery (Mr. Hooson) and one by my hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) under the Ten Minutes Rule, the latter being entirely based on the European Convention on Human Rights. There is also the Bill currently being considered by a Select Committee in the House of Lords—a Bill introduced by my noble Friend. Lord Wade.
With all respect to the hon. Member for Lichfield and Tamworth, I do not think that we advance the argument by hurling generalised abuse at the judiciary, as the hon. Gentleman did, without very much specific justification. I am prepared to listen to any amount of specific justification for anything, but I become bored by generalised abuse. I deeply suspect 532 people who state that anything is absolutely incontestable, as the hon. Gentleman did. As a politician and a Liberal, I do not think that there is anything in this world that is absolutely incontestable. When I hear people say that, I suspect them far more deeply than any judge, however venerable he may be.
I return to the issue whether we should enshrine a Bill of Rights in this Bill. Essentially the arguments against such a proposition—I dare say that the Minister of State will develop this later—have to a degree already been tackled by the hon. Member for Cleveland and Whitby. They are, first, that it would not be sensible or wise that there should be a Bill of Rights in Scotland and not in the rest of the United Kingdom; secondly, that the matter is under discussion in the Select Committee of the House of Lords; and, thirdly, that there is the Government's consultative document.
Let us take the first argument—that it is wrong to take a step of this kind in Scotland alone. We are essentially bringing into Scottish domestic law the European Convention of Human Rights. It is not a question of changing the law. The law is to be the same. It is a question of the recourse of the litigant being different, so that in Scotland—I assume that this is right, although I am not a lawyer—the Scotsman or Scotswoman would be able to go to the Scottish courts and the European Court, whereas if the litigant were resident in England or Wales he would be able to go only to the European Court, because the convention is not, as yet, enshrined in domestic law.
§ Mr. John Smith
It is fair to say that there would be a further difference. The activities of the United Kingdom Parliament and the United Kingdom Government, in so far as they related to England and applied to English citizens, would not be constrained in any way, while the activities of the Scottish Assembly and Executive dealing with Scottish matters would be constrained.
§ Mr. Johnston
I am not a lawyer, but is it not the case that the activities of the Executive stemming from this House are, to a degree, already constrained by the mere fact that we are a signatory of the European Convention of Human Rights?
§ Mr. Brittan
Does the hon. Member not agree that it is rather surprising to 533 hear a United Kingdom Minister say that the Government would not be constrained in any way by the fact that they were a signatory to an international convention?
§ Mr. John Smith
That is a perhaps innocent misinterpretation of what I said. The hon. Member for Cleveland and Whitby (Mr. Brittan) knows that what I am talking about is the direct applicability of the courts to the matter. It is quite a different thing to be constrained by the domestic courts and to have to go through the rather particular and sometimes difficult procedures of petitioning the European Convention of Human Rights. But there would be this difference, would there not, that the United Kingdom Government would be responsible for education and would be under no inhibition while the Scottish Administration, responsible for education north of the border, would be under an inhibition, a constraint. That is an important difference.
§ Mr. Johnston
It is a difference. I would be the last to deny that, as I would be the last to deny that the likelihood of the hon. Member for Cleveland and Whitby being innocent is remote. I do not see how—and this relates to an intervention I made in the speech of the hon. Member for Withington—this diminishes the human rights of the individual. It is the object of the exercise to protect these. Given that I accept what the Minister says I do not see how this represents a negative disadvantage for the citizen.
The hon. Member for Cleveland and Whitby argued—I would go along with him in this—that in a political sense, if a Bill of Rights were accepted as part of the Scottish settlement it would generate political pressure for a similar piece of legislation to be passed in this House, so that conditions were equivalent in all parts of the Kingdom. It does not appear to me that anyone who has so far spoken has suggested that to have the two systems out of kilter would make all that much difference in practical terms for the individual. That is why I begin to wonder to what extent this change would produce anything very dramatic in terms of its immediate effect, although I accept 534 that there would be a dramatic long-term impact.
The Minister of State intervened during the speech of the hon. Member for Cleveland and Whitby to make a point which I did not quite understand. If I mention it now he may clarify the matter later. The Minister told the hon. Gentleman, in a somewhat critical fashion, that he was not introducing a Bill of Rights but simply introducing the European Convention of Human Rights into Scottish domestic law. I did not follow that intervention or the point of the argument since the European Convention of Human Rights is a Bill of Rights. The fact is that the Conservative Front Bench has decided that it was the best and simplest thing to adopt an existing and agreed Bill of Rights and apply it to Scotland. That is, as the Minister knows, the same approach that we adopted in discussions with the Labour Government on this matter.
§ Mr. John Smith
What I was putting to the hon. Member for Cleveland and Whitby (Mr. Brittan) was that it might, perhaps, be better if a Bill of Rights were specifically designed to deal with the Scottish situation. I wonder whether it is appropriate to take the European Convention for Scotland only and prohibit the Assembly from introducing slavery, which is an unlikely event, given the responsibilities which the Assembly has for such things as education, housing and health.
§ Mr. Johnston
With all respects to the Minister—and I do respect him—I do not see that Bills of Rights are meant to be specially applicable to particular groups. There are basic universal human rights. Even if it is not a common thing to have slavery in Scotland, I am not at all satisfied that there is any reason why it should be excluded from a Bill of Rights for Scotland or the United Kingdom.
§ Mr. Dalyell
Was it not the hero of the Scottish National Party, Andrew Fletcher of Saltoun, after whom it called its so-called intellectual society, who believed in domestic slavery—for the Highlands?
§ Mr. John Smith
Perhaps the hon. Member would consider the point that, post-devolution, some parts of the government of Scotland will be dealt with by the Assembly—education, housing, and the like—while other parts will be dealt with by the United Kingdom Government and Parliament—trade, the economy, industrial relations, and the like. To introduce a Bill of Rights in this form merely offers protection in respect of the devolved subjects and does not cover the whole range of government in Scotland. Would it not be better, if we are moving to a Bill of Rights, to do the whole thing at one time for the United Kingdom and to put all citizens in the same position with respect to any so-called protection which is given?
§ Mr. Johnston
That is the nub argument—that we should not do it in one part of the United Kingdom but rather should apply it throughout the whole of the kingdom. As a variant of the central argument, the counter argument to that surely is that this matter has been discussed for some time and that to have it enshrined in legislation incontestibly—that is a proper use of the word—produces the political motive force for something actually to be done in the remainder of the United Kingdom. That surely is an argument for such a concept for those who favour a Bill of Rights as such.
§ Mr. Raison
Is not the force of the Minister of State's argument that perhaps it is not the best way to introduce such a thing to introduce it in only part of the United Kingdom rather than in the United Kingdom as a whole? When one is considering how to vote on this issue, if the Minister were to say that it was the intention of the Government to introduce such a provision for the country as a whole, one might well think this amendment to be an inadequate provision. It would be helpful if the Minister could enlighten us about the position of the Government.
§ Mr. Johnston
That point is extremely well made. For those who favour a Bill of Rights as such and are anxious to see such a measure incorporated in the law of the United Kingdom, it would be better if it were to be so incorporated rather than done in a partial way. I sympathise with the hon. Member for 536 Aylesbury (Mr. Raison), but I doubt whether the Minister is in a position to give the sort of assurance he asks for.
§ Mr. John Smith
The position of the Government on the question whether the convention should be incorporated into domestic law in the United Kingdom is that the question is still under consideration. A discussion paper has been issued, and the matter is being discussed by a Select Committee of the House of Lords. The hon. Gentleman would not expect any Government to come to a conclusion in advance of any of those considerations.
§ Mr. Johnston
As I have said, the fact that Governments discuss things is not a major reassurance to me.
It has been said that the Assembly could introduce a Bill of Rights itself if it were so minded. I do not think that that is an argument particularly one way or the other. It is simply a statement of what power the Assembly has. But if it is contested that there might be a likelihood of the Assembly introducing one, I would have thought that to do it at once might be a better course of action.
From the Liberal point of view, one of the favourable aspects of including Amendment No. 557 would be that it would provide one of the essentials of a federal approach which is a framework of legal protection for human rights and which, to us, is a logical and sensible thing to do and paves the way for further improvement to the Bill. I shall be inclined to support the amendment unless the Minister can produce more pertinent arguments against it than I have heard so far. It is not enough to say that the matter is under discussion, that it would be better to do everything at once, and so on. I think that the opportunity for Scotland to lead in this matter is one that we should not dismiss lightly.
§ Mr. Rooker
I apologise for having had to leave the debate for a brief period, thereby missing a couple of speeches.
Like the hon. Member for Inverness (Mr. Johnston), I make no complaint about the way this subject has been introduced. Although it is taking up a fair amount of time, it is an important subject and I welcome the debate, but for different reasons from those of the Conservatives. I am basically opposed to a written constitution and to a Bill of 537 Rights. My contribution to the Scotland Bill would have been New Clause 2, but, unfortunately, it was not selected. By implication, therefore, I accept that the House of Commons should impose limitations and restrictions and conditions on the way the Assembly operates. My view is all laid out in New Clause 2 for anyone to read.
I put down New Clause 2 for the same reasons and motives as the hon. Member for Cleveland and Whitby (Mr. Brittan) spoke of this subject; that is to say, I regarded it as the thin end of the wedge in the United Kingdom. I am aware of the argument that my hon. Friend the Minister of State may use. He may take up the point I made in an earlier intervention, that it may be possible for the Assembly to legislate a Bill of Rights of sorts for its own domestic purposes. In the same way, he would have met my argument on New Clause 2, that the Scottish Assembly should legislate for greater access to official documents by the Scottish electorate.
The details of the proposed Bill of Rights in Amendment No. 557, the related new schedule, concern me. I shall not go into detail, but there are certain contradictions in it. I am not clear, for example, whether Amendment No. 557 is an exact replica, without any additions other than references to Scotland, of the European Convention.
§ Mr. Brittan
The answer to that is "Yes". A few changes in wording have been made in order to include the word "Scotland". Also, one or two articles in the convention are not included because they relate to matters so plainly outside the powers of the Assembly and the Executive that there would be no point in putting them in. There are in it some points that are probably outside the powers anyway, but I do not think that that matters. There is nothing added from any source other than the European Convention.
§ Mr. Rooker
There is an anomaly in Article 10. Several times in the House over the last four years we have debated industrial relations legislation, particularly as it affects the individual problems of trade unions. We have heard constant reiteration by the Tories that there should be a right not to belong to a union, just 538 as there is a right to belong. Indeed, that was incorporated in the Industrial Relations Act 1971.
I therefore had a wry smile when I read Article 10, which says that there shall bethe right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions…".There is no mention there of a right not to belong. I could not believe that the Tory Party, having raised these fundamental human rights matters in the amendment, had not taken the opportunity to put in the right not to belong to a union.
§ Mr. Ian Gow (Eastbourne)
I refer the hon. Gentleman to Article 8, which says:Everyone has the right to freedom of thought, conscience and religion".The hon. Gentleman will recollect that it was the Trade Union and Labour Relations (Amendment) Act that removed the conscience clause which used to exist lot those who did not want to join a union. The hon. Gentleman has made a valid point. I would have expected my right hon. and hon. Friends to have that in mind when they included Article 8.
§ 7.0 p.m.
§ Mr. Rooker
With respect, I do not think that that meets the point. If the new schedule in Amendment No. 557 is an exact replica of the Convention, with the few additions or omissions to which the hon. Gentleman has referred, and if it has been so important during the past four years—in fact, from the legislation of 1971—for the Conservative Party to believe in certain rights and, latterly, to believe that there should be new rights for the Scottish electorate as a means of paving the way for legislation covering the United Kingdom as a whole, the idea being to sell it to the House of Commons here and to the United Kingdom electorate, I should have expected the Conservative Party to use the European Convention and in this context pursue the policy which it has advocated in the past.
The Tories cannot use that argument with reference to Scotland, with the idea of selling it later to the United Kingdom, if they do not include the right not to belong to a trade union.
§ Mr. Brittan
If that be put as a question, I can answer it quite simply. No further rights are included, even though one might want those rights to exist, precisely because, to be a constitutional enactment, the Bill must command all party support. We are proposing nothing here which could prevent that support. Because all parties support the European Convention and there is agreement at least on a common core of rights, we have set the matter out in this way. There are items not in it, items I should like to see, and I am sure that there are not in it items which the hon. Gentleman would like to see. Those matters should be dealt with by legislation, passed on a partisan basis, if necessary, but for constitution making one has reluctantly to accept the lowest common denominator of agreed rights.
§ Mr. Silvester
May I try to help further? There is at present a case before the European Court on the closed shop, arising out of the convention, so at least some lawyers think that it is covered by the convention as written.
§ Mr. Rooker
I shall not labour the point. At least we have it on record that the right to belong to a trade union is accepted as a lowest common denominator by the Conservative Party. Some of us on this side have been in some doubt about that in recent months. However, I think that I have made my point on Article 10, and I accept what the hon. Member for Cleveland and Whitby has said about his self-imposed limitations in drafting Amendment No. 557.
I come now to two other matters. I suspect that there is a contradiction raised by Article 11, which refers to the right to marry and found a family according to national laws, and Article 13:The enjoyment of the rights and freedoms set forth…shall be secured without discrimination on any ground such as sex, race, colour, language, religion…With those two married together, I reckon that there is a contradiction to what the right hon. Lady the Leader of the Opposition has been saying in recent days, and I find it difficult to square the circle between her argument and what appears in the amendment.
I come now to my last point on detail. Article 9 lays down that everyone shall 540 have the right to freedom of expression and thatThis right shall include freedom to hold opinions and to receive and impart information …I regard this as the most important part of the proposal before us. It was implied in my earlier comments on my New Clause 2 that I consider that the right to receive information, especially official information, is a supreme right. Indeed, I have come to the conclusion over the past four years that it is about the only safeguard left for democracy.
I cannot wholly accept that we can leave the safeguarding of democracy to the other House along the Corridor or to the courts, and I certainly do not accept that we can leave it to a Bill of Rights in the sense in which that is proposed here, since we know that one Parliament can overturn what another has done, a Government can overturn what a previous Government did, and even the present Government could overturn something which we enacted last year.
There is no such entrenched right as I wish to see. Even if the Bill is enacted and is put to the Scottish people in a referendum, although that would in some ways be an entrenchment of the proposed Bill of Rights, I should not be happy about it, because the House of Commons could overturn or amend any legislation in the form of the proposed new schedule. The House could amend the schedule, it could remove rights, and it could add rights without going back to the Scottish people in a referendum, because that is the normal way by which one amends an entrenched Bill of Rights.
Therefore, I do not regard this proposal as the protection of freedoms, of democracy and of individual rights, as hon. Members opposite suggest that it is. I want there to be a right to know what is going on, and not just for Members of Parliament or Members of the Scottish Assembly or the Executive. They will not have all that many rights, any more than we have here.
There are well over 100 subjects on which Members of Parliament are not even allowed to ask Questions, yet we are supposed to be the guardians of democracy, acting as a check on the Executive and representing our constituents.
541 Article 9 sets forth the freedom to receive and to impart information, and I should like to see the devolution Bill being used as a pathfinder for the rest of the United Kingdom in this sole respect, on which there is a Government commitment. We have no Government commitment about a Bill of Rights, but we have a specific Government commitment about freedom of information. We have had it from the Prime Minister at the Dispatch Box, and it was in the Labour Party manifesto on which we won the last election—a commitment that we should have a reform of the law governing information so that information would be made available unless the law said it should not be, as opposed to the present position, where the law says that everything is secret unless we legislate otherwise.
In my view, that would be a useful addition to the present Bill. It is a tragedy that it is not given enough emphasis even in the proposed new schedule setting out the Bill of Rights.
I imagine that the Assembly will have a lot of problems on its hands when it starts. This place has problems enough, too. I am sure that the devolved areas of Government will remain for a long time in uncertainty, in contrast to what I want in the way of rights and obligations.
We ought to direct our attention to trying to ensure that the Scottish, devolved Government will be a model institution. I am ambivalent about it myself. To be honest, I do not know how I shall vote on Third Reading; but I should like to think that, if the Bill is set on its way, being given approval by the Scottish people, we shall be setting up a system of devolved Government that will be a model not only to the rest of the United Kingdom but to the rest of the world.
§ Mr. Dalyell
I remind my hon. Friend of a topic in which both he and I have been interested, namely, the proposed development of a refinery at Nigg on the Cromarty Firth. Does that not illustrate one of the difficulties, since there would be many people who would say that it is the business of the Assembly and others who would say that it is the business of the United Kingdom Parliament? This 542 is another of the grey areas. In the matter of getting information, as in so many other things, there will be difficulty.
§ Mr. Rooker
That is right. In fact, without such proposals as I wished to put forward in New Clause 2, I remain extremely unhappy. As my hon. Friend reminds me, we had the experience almost two years ago of the attempt to pass through the House the Cromarty petroleum Bill, and because of other matters it was then taken out of the hands of the House. One of the problems then—it is still a great problem today—was the obtaining of information. It becomes a barrier to the working of democracy.
I was saying that, although I am not too sure that I shall vote for it in the end, I should want the Scottish Assembly, if it is to be set up, to be a model of democracy.
§ Mr. Rooker
I am not imputing motives to anyone. Indeed, I go so far as to say that there are grounds for thinking that we may have considerably fewer problems in the workings and openness of government in Scotland if certain sections of certain Scottish political parties do not get control of the Assembly. I shall be no more specific than that, before I have the rap down on me from north of the border. As I say, I am imputing no motives to hon. Members on the SNP Bench. They made clear to me a long time ago that they supported the intention behind the new clause which I wished to move calling for greater access to information for the Scottish people.
§ Mr. Andrew F. Bennett
Will my hon. Friend agree that one of the problems is that there are many good intentions in the House about reforming our procedures? However, because of the everyday major political problems that face us we tend to shelve the responsibility of getting these things right. Once the Scottish Assembly is in being, even though most of its Members will have good intention about setting up good procedures and good standing orders, they will tend to put it off and become entrenched in the ways of this Parliament.
§ Mr. Rooker
My hon. Friend has summed up the situation extremely well.
The access to information is not only important to the legislators. It is far more important to those outside this Committee as a safeguard to democracy. Pressure groups, aggrieved individuals, the Press and the other media should all have access to information. This would do the media's job for them in many ways. It is quite true that many of the great issues which Members of this Committee try to take up come about because some journalist somewhere has been tipped off and has taken the time to dig deep into the murky waters of Whitehall. We tend to get bogged down in the business of trying to operate the legislature without proper Standing Orders.
In setting up a new legislation we haw the opportunity to establish procedures for open government. There is a case for the Scottish Assembly taking the proposal in New Clause 4 and in Amendment No. 557, and if not legislating this for itself, at least taking on board the proposals in it and legislating a Bill of Rights giving access to information for Scottish local government.
It took a great deal of pressure from the House to get even the committee rooms of local government in England and Wales open to the public. The history of smaller democratic bodies, such as local government—and I do not want this to happen in the Scottish Assembly—shows that these bodies tend to make themselves closed societies. It is very easy for them not to pass legislation opening access to their deliberations and giving their electors greater freedoms and greater representation. There is an impetus not to do that, and this is what concerns me most.
The history of this country in expanding democracy bears out that point at every stage. We have a great opportunity in setting up this devolved Assembly—
§ The First Deputy Chairman
Order. The hon. Member knows full well that his proposed New Clause 2 was ruled out of order, yet he is developing the contents of that new clause in too great a depth.
§ Mr. Rooker
With respect, Sir Myer, it was not ruled out of order. It was simply not selected, and there is a differ 544 ence. I am not talking about New Clause 2. I am drawing attention to Article 9 in Amendment No. 557 about the freedom to receive and impart information. I have been addressing my remarks specifically to that.
In the interests of greater democracy, and the rights of the Scottish electors, the very concept of a Bill of Rights is to give rights to people outside so that they cannot be abused by an elected body whether it is the House of Commons or the Scottish Assembly. This is what our debate is all about. I have not gone very wide at all. I have not gone into the arguments about the courts not deciding anything. Many hon. Members in this debate have referred to this subject to illustrate their points. I simply mentioned in passing the point about access to information because of the contents of Amendment No. 557.
Even if the Committee does not pass the Bill of Rights clause or any other new clause or any of the amendments proposed, I want the Scottish Assembly to be a model of democracy. That is my intention, and that of my hon. Friends, and there is no reason to believe that it is not the intention of Conservative Members also. The point at issue here is the track record in the past in setting up devolved government, whether by local authorities or anything else. It is better to establish rules and rights to begin with in the original legislation. That is the whole point of passing this amendment and the new clause.
I began by saying that I am opposed to a written constitution in the widest sense because of the role and history of the courts in this country in basically frustrating radical legislation that usually emanates from this side of the Committee. That makes me very suspicious, and because of that I do not want to impose on the Scottish people a Bill of Rights in this devolution Bill. That is not to say that one cannot hope or recommend that after the referendum. If we still have this Bill, these ideas may permeate from this Committee to the Scottish Assembly. One may hope that the Assembly may take on the mantle of democracy which, in many ways, this Committee has cast aside.
The greatest safeguard against this country turning into a corporate State is 545 the provision of access to official information which does not prejudice the security of the State.
§ Mrs. Audrey Wise (Coventry, South-West)
Will my hon. Friend agree that one of the principal difficulties with this Bill of Rights clause is that it purports to give freedoms and then substantially modifies them in an entirely negative way? It does not impose on public authorities any positive duties to provide for people's welfare or to give them information to enable them to make their own judgments about the record of the Government, and whether their rights are being properly safeguarded by the Government.
§ The First Deputy Chairman
Order. I cannot allow this to develop into a method of getting around the fact that New Clause 2 was not selected, and it was not selected because it was out of order. I cannot allow any discussion on New Clause 2.
§ Mr. Rooker
I hope, Sir Myer, that you would not want to curtail the debate on a Bill of Rights for the Scottish people. I do not see any problem in having one set of laws for north of the border and another set for south of the border if these are good rights contained in the clause. Hon. Members may wish to use this as an example of how they can make this work in practice and as a means of giving these rights to citizens in the rest of the United Kingdom. The hon. Member for Cleveland and Whitby put forward the thin end of the wedge argument. I do not accept it in that sense, but at the same time I would hope that many other hon. Members would debate this issue fully as far as we are allowed under the guillotine because some of us have heard the word that there is a cosy relationship between the two Front Benches about curtailing the debate on this issue within the guillotine in order to debate Clause 8. I do not want to cut New Clause 8 out of the debate, but I am interested in having a Bill of Rights fully discussed, because it is extremely important.
There are negative procedures in Article 9. A lot of rights are given in the schedule in Amendment No. 557 but then, in one or two sentences at the end it says that if these rights are against 546 national laws they are not applicable anyway.
§ Mr. Andrew F. Bennett
My hon. Friend said earlier that he had some doubts whether to vote for Third Reading. If he were to take part in the referendum in Scotland, would it not be crucial to make up his mind which way to vote if there were some Bill of Rights that included the right to their own government and the right to receive all information? Would not that be decisive in the way he would decide to vote? Therefore, would that not be better contained in legislation—rather than in standing orders after he had a chance to vote?
§ Mr. Rooker
I would not wish to interfere in the referendum campaign in Scotland, but I would feel happier in interfering if there were an entrenched right to know that there would be democratic safeguards. However, there are few safeguards in the Bill, and these new clauses and the new schedule do not appear to include such safeguards.
Perhaps commitments will be given by hon. Members on both sides of the Committee that they will seek to ensure that proposals are put forward if a Scottish Assembly is set up. If we were to have such undertakings then, although those matters were not enshrined in legislation, I might feel happier about voting for this Bill on Third Reading.
§ Mrs. Winifred Ewing
I am grateful to the hon. Member for Cleveland and Whitby (Mr. Brittan) for allowing the Committee to have a most interesting debate, the most interesting I have ever heard in this place. I must inform the Minister that my hon. Friends and I in the SNP will support the new clause.
I do not wish in any sense to suggest that I am lacking in recognition of the Minister's dedication in trying to get the Bill through the House, and I pay a genuine tribute to him. I make no apology for being a lawyer. I know that lawyers are not a popular section of society.
§ Mrs. Ewing
It depends what kind of lawyer one is referring to. I merely seek to point out that this subject is of particular interest to me because of the fact that I am a lawyer.
547 The hon. Member for Inverness (Mr. Johnston) asked whether it was sensible to introduce such fundamental matters into the Bill. That is a most important question. I would reply by saying that we have had problems in Scottish private law throughout my lifetime and there has been much call for reform. There have been some reforms, but for 20 years of my legal life there was ground for serious complaint.
Therefore, when we are offered a prospect of reform of private law we should take it, because we do not know when another opportunity will be offered to us. In that sense, although on the face of it it may not be sensible to introduce matters piecemeal in Scotland rather than in the United Kingdom as a whole in relation to the Bill, one must ask when one will ever have such a chance again. For that reason I tend to take the view that it is better to have a Bill of Rights in Scotland alone than no Bill of Rights at all.
I thought that the hon. Member for Birmingham, Perry Barr (Mr. Rooker) was generous in his attitude and in taking the view that we should make the Scottish Assembly a model. Why should that not happen? The hon. Gentleman will have the support of the SNP in advancing that proposition. The fact that this formula does not include everything does not seem to me to be a fatal flaw. It is a minimum set of fairly acceptable rights. But the proof of the pudding is that these matters have been found acceptable by a number of legislatures in Western democracy. That does not mean that a legislature cannot take the view "We are sorry that X provision or Y provision is not included, but in your own legislature you can improve the situation". The fact that everything cannot be included is not a serious objection—although one takes that matter seriously—because the matter can be dealt with by a legislature, and could be handled in the Scottish Assembly.
I am assisted in my argument by the fact that recently a House of Lords Select Committee took evidence from all interested parties, including the SNP. We submitted written evidence, which is available in the Library, and we also gave oral evidence a week or so ago. Let me quote from the first paragraph: 548The SNP believe that it is right that in the constitution of a state there should be incorporated an enacted declaration of the fundamental rights, privileges and immunities to be guaranteed to every person within the jurisdiction that such rights should be justiciable before the ordinary courts, which should be charged with securing their full and speedy enforcement as against every act whatsoever that infringes them; and that none of the basic rights, privileges and immunities should be subject to abrogation or derogation by ordinary process of legislation".That sets out our position. It is not new, in the sense that we have set it out in a draft constitution. I have no hesitation in supporting the principle of the new clause.
I was interested to hear the hon. Member for Cleveland and Whitby say that he thought that Scotland was acting as the trail blazer. We do not mind that happening. If there is a favourable disparity, that is a pleasant change. We have had many unfavourable disparities to put up with in the last 250 years. We do not mind whether the Scots are to be used as guinea pigs. One hon. Member said that we were having to carry the can. Again, we do not mind so long as we identify ourselves with the basic principle.
It was also said that this reform should not be brought in by the kitchen door. It was interesting to have Scotland described as a kitchen door, because a little earlier it was described as the goose that laid golden eggs. I do not mind being a kitchen door or a guinea pig. It is better that we should make a genuine attempt to improve human rights than make no attempt at all.
I see nothing illogical in having a Bill of Rights for Scotland and the North of England, for the simple reason that those of us who are familiar with the practice of Scots law know very well that we have a different legal system. entrenched by the Treaty of Union Therefore, this is not an unusual situation; it is one to which we have become accustomed all our lives.
Many funny comments are made about this situation. It was once said that a Lord Chancellor said to the Lord Advocate of Scotland "Would it not be good thing if the laws of our two countries were the same?". The Lord Advocate replied "Yes. But do you not think that it would be difficult to get the English to adopt Scots law?". We have 549 been used to this situation. There is nothing startling or fearsome about it.
§ Mr. Fairbairn
Is it not a little dangerous for the SNP to point out that the Scottish Assembly is the first Assembly in this country that would be required to protect the rights of human individuals in Scotland—rights which are guaranteed and accepted in other parts of the United Kingdom?
§ Mrs. Ewing
I suppose that it is a little impertinent to say that the Scots need these rights while the English do not. Perhaps the hon. and learned Gentleman is suggesting that we in Scotland do not recognise human rights, but we all know that Scotland has taken in a vast number of immigrants, including Poles, Flemings, Irish and people from Pakistan.
§ Mrs. Ewing
And of course the English. We have made them all extremely welcome.
I do not think that it should ever be suggested that Scotland is a place where human rights are not recognised. But I am not prepared to impute to the movers of the amendment the impertinence; I am prepared to give them the benefit of the doubt and take a charitable view that the amendment is an attempt to improve human rights when there is a chance to do so.
§ 7.30 p.m.
§ Mr. Percy Grieve (Solihull)
I assure the hon. Member for Moray and Nairn (Mrs. Ewing) that there is no impertinence here at all. I hope to see the European Convention enshrined in the law of the United Kingdom, and I welcome it. I am pleased to hear the Scottish nationalists welcoming the clause, which will blaze the trail in Scotland, as Scotland has frequently blazed a trail in the United Kingdom.
§ Mrs. Ewing
I am grateful to the hon. and learned Member for Solihull (Mr. Grieve). I was using the word "impertinence" only because I was trying to answer the intervention of the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn).
There is no doubt that the Scots courts are adequate to deal with human rights. It is not because we are in special need 550 of protection or because there is anything wrong with our courts. It does not mean that because we have a good situation it cannot be bettered. I regard a Bill of Rights as a betterment. I regard it as a step forward and as progress from good to better.
There is no doubt in the minds of the jurists of the world that, rightly or wrongly the Scots legal system is one of the flowers of Scotland's contribution to mankind. It has been much complimented by jurists of all countries. That was perhaps because, having evolved a Roman law system, the European system—after all, we had our law evolved before we entered the Treaty of Union with England—we then had the tempering of a totally different system, the English system, which was a unique and genuine creation of the English. The combination of the two systems created a perfect system of law in many respects, in contract and in criminal law rights. This is recognised all over the world by leading jurists. I speak as one who used to be an academic in happier days gone by.
If we end up with a constitution in which the Scots are to have this extra right, in which the Englishman might have to go to the Court of Human Rights whereas the Scots can immediately have the convention in their domestic law, it would be regrettable. I welcome the intervention of the hon. Member who said that he hoped that this was just a first step.
I have already said that Scots lawyers feel part of Europe. Our law students went to European universities, where the legal studies were conducted in the universal language of Latin. This was done for hundreds of years, when no university in England taught law. If I can remember Blackstone's initial lecture, in either Oxford or Cambridge, he said "This is no subject for gentlemen." That was because the English lawyers were practical men, who thought of the remedy and the precedent rather than the august principles.
It is because we have been exposed to the two systems that we have ended up with the right, perhaps, to blaze the trail. That is why I support the amendment. It is not necessarily true that to have this incorporation of the convention in our domestic law means that w are on the way to a written constitution. I 551 think that any lawyer, in Scottish terms would bear me out in saying that it is probable that if we had not entered into the Treaty of Union in 1707 we would have had a written constitution. That is almost incontrovertible on the evidence, because it was at that time that we had the flowering of the Institute Writers. They were trying to codify our law because it was the fashion to codify the law of Europe. We were part of Europe and we were following the European tradition in which our lawyers were trained.
It was the Union that in certain respects held back our legal development, because we then came under the umbrella of a system that was not prepared to consider codifying its law or having a written constitution. Therefore, in a certain way it seems to be a proposition that takes us back to some of the basic philosophy about our legal system.
§ Mr. John Smith
Will the hon. Lady explain why she prefers to have a Westminster-imposed set of circumstances put upon the Scottish Assembly rather than letting the Scottish Assembly legislate about those maters for itself, if it so wishes?
§ Mrs. Ewing
The expression "Westminster-imposed", as used by the Minister, is very dramatic. Normally I like to agree with him, because I admire him very much. But I think that that comment was a little unworthy of him. We are dealing with a set of human rights laid down in a widely acceptable convention. I would be the first to resent a list of human rights that did not seem to meet the bill in regard to my very strongly held views on human rights. I have studied the Convention on Human Rights. It is a subject on which I speak in the European Parliament. It is a subject that interests me. There does not seem to be anything objectionable. It may not go far enough for me, but there is nothing objectionable in it.
On the question of "Westminster-imposed", the Scots lawyers developed their law partly because they were not averse to borrowing the best ideas. It was often said by our greatest lawyers "Let us borrow the best there is. If it is from England, let us borrow that. If it is from the European system, let us borrow that." 552 So if we have a good convention of Europe, I have nothing against borrowing it. If it is imposed on the House, what does it matter?
§ Mr. Raison
Is not the answer to the Minister that some of the things in the Bill of Rights are not devolved subjects? The Scottish Assembly would not be able to adopt the European Convention. For instance, that covers forced labour, which I suppose comes under the heading of employment. It covers the right to join unions, which seems to come under employment, and also race relations, which is not a devolved subject.
§ Mrs. Ewing
It is delightful for the Conservative Party to take the bold step of increasing the powers of the Scottish Assembly—if that is what it is doing. I do not object to its attempts to do so. But the hon. Member's argument will not help the hon. Member for Cleveland and Whitby to get the votes tonight.
On the question of parliamentary sovereignty, the squeals of pain that we are hearing about the Bill of Rights to some extent emanate from the fact that this House of Commons and England, in which we are physically standing, is thirled to the theory of parliamentary sovereignty as some sort of holy cow, some sacrosanct principle. I dispute that theory.
In the first place, it is not in accordance with Scottish constitutional law. Admittedly, that was dented when we entered the Treaty of Union. But there is no doubt in my mind that the Scottish constitutional law, long before it was possible in England, gave us the right, for instances, to sue the monarch in the ordinary courts. In the early days of the nationalised industries that meant that one could sue a Post Office van, and practical things of that kind. It was very important to the rights of the citizens. It was established in England, but it was never established in Scotland, because we did not regard the monarch as being above the law. While the English, naturally enough, are proud of the Magna Carta, we are very proud of the Declaration of Arbroath.
The interesting point about the Declaration of Arbroath is that those brave men, risking excommunication as they were all members of the Catholic Church, bravely 553 faced their Pope and said that they would not be under the domination of England. However, they also said that if the Scottish people so decided, they could expel their king. They said that if the Scottish people decided that he was not looking after their interests, they could expel him, and the words werechoose another in his place.In the matter of McCormick v. the Lord Advocate in 1953, on the matter of the Queen's Title, again it was established that there was a separate constitutional concept in Scots law about the sovereignty of the people, and not the sovereignty of Parliament. I leave it to those in this Chamber to consider which is the nobler concept and which is, perhaps, the wiser.
Again, I go to the Bill of Rights 1689. That was an English Bill, but, at the same time, we had the Claim of Right in Scotland. The wording may interest hon. Members. It is relevant to this point. The Bill of Rights in England said: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.That difference of opinion arose because there is a different concept.
I feel that the new clause is in keeping with the philosophy that has echoed through the centuries in our Scottish constitutional law, where even in the Scottish Parliament, although it was a long time ago, it was possible, on one day that was allotted with due publicity, for people themselves to come in with their petitions, to petition the King in Parliament. That concept has gone. It is an old idea, but it was a very open type of law and it ensured rights.
Now we are asked to consider whether this system in Westminster could be improved by the introduction of a Bill of Rights. Lord Hailsham made a very important speech six months ago, in which he said that the Westminster system was an electoral dictatorship and that it was time that we looked at the possibility of a written constitution. I know that a Bill of Rights is not a written constitution, but it is interesting that a lawyer of Lord 554 Hailsham's standing is prepared to look along those lines.
In the United States it was partly because of the framing of the constitution—which was done by a Scotsman, Wotherspoon, whose statute stands on Fifth Avenue—that Watergate was exposed. There was the segregation of powers. Without that, it would be very difficult to know whether the same could necessarily have been accomplished in this country. I do not find anything objectionable in the proposal. In the foreword to the discussion paper of the Standing Advisory Commission on Human Rights, which is available in the Library, Lord Feather said:No one can afford to be complacent about the adequacy of existing measures for the protection of human rights.That is obviously what all of us believe. He also said:Equally important, the subject must be approached with realism as well as hope.I think that this is a fairly realistic debate on the matter, which has raised hopes, but again, I do not think that anyone will imagine, in a sophisticated modern world, that just because one has a Bill of Rights, that is a panacea for all ills. I do not think that hopes will be raised falsely.
The rather strange so-called reform of local government that we had to put up with in Scotland, the division of Scotland into chunks, each being given so-called autonomy and massive powers, has resulted in the situation that one cannot get a decision out of Scottish local government in the way in which one could get a decision under the old system. There is a need for more protection of human rights, because the average person now cannot feel confident that his right will always be satisfied. In this country we do not have a codified system of administrative law or what many Western democracies guarantee by way of human rights. I see no reason why we should not advance a little on this road.
Lastly, on the international front, there is nothing more important in making the world smaller than ensuring that people who live everywhere in the world have human rights. Many people cannot leave their countries. I have raised this matter in the European Parliament on behalf of 555 people in the Soviet Union and others have raised matters of human rights affecting people in many countries where even slavery is still in existence. The more that any example can blaze a trail in the direction of being prepared to give at least a minimal set of guarantees, the more difficult it will be for countries that do not recognise human rights to resist the recognition of those rights.
In the international sense, this matter is extremely important. We cannot forget, for instance, that in India, the whole situation in regard to democracy changed overnight. We have seen a betterment in Portugal and Spain. In human rights, things can happen very quickly. At least if everything is guaranteed in writing, it is less likely that upheavals or changes will bear away the essentials, which are in the end the rights of people before the law.
I should like to make one last comment, perhaps with a little acidity. I believe this to be true from my heart. If there had been a United Kingdom Bill of Rights, the vote requiring, in effect, 80 per cent. of the Scots' aspirations in order to achieve devolution could not have been passed.
§ The First Deputy Chairman
Order. In view of rather lengthy speeches, I ought to remind the Committee that the guillotine falls at 9 o'clock.
§ Mr. Stokes
On a point of order, Sir Myer. You very rightly reminded the Committee that the guillotine falls at 9 o'clock, so that we have only about one and a quarter hours more. It might also be observed, perhaps, that the debate was shorn of one and a half hours at the start because of the two long Government statements.
§ The First Deputy Chairman
I appreciate that, but there is nothing that the House of Commons can do to alter the fact that that time is not provided for under the guillotine procedure.
§ Mr. Dalyell
I do not think that the last remark of the hon. Member for Moray and Nairn (Mrs. Ewing) was very fair, because in most countries—this is the reply to it—to change any constitu 556 tion requires two-thirds or in some cases three-quarters either of the people or of the legislature. Therefore, the suggestion of gerrymandering or of needing 80 per cent., or whatever the figure is, does not carry much weight.
§ Mr. Henderson
In that case, surely the hon. Member would say that the vote was invalid on that occasion because we did not have a two-thirds majority of those entitled to legislate.
§ Mr. Dalyell
I am willing to be drawn into that argument, but the Chair has reminded me about the time factor.
§ Mr. Dalyell
Perhaps we could deal with the argument on another occasion.
I come to another point, which is substantial, and I say this in not an unfriendly way to the hon. Member for Moray and Nairn. She cannot go on saying that for 20 years of her life she resented the way in which Scottish private law was not dealt with by the House of Commons. It was never a problem of Westminster time. It was a problem of very deep differences of opinion among elected Members of Parliament from Scotland on such matters as, surely, those to which she was referring—the divorce laws and the licensing laws. Some of my right hon. Friends—my right hon. Friend the Member for Kilmarnock (Mr. Ross) in particular—did not want—rightly, I think—reform along the lines for which others were pressing.
Indeed, coming to the present time and an issue in which both the hon. Lady and I are interested—the reform of the Scottish stated case procedure—my experience over the past year in relation to the case of Sergeant William Jamieson of Bo'ness is not of difficulties at Westminster but of trying to get some agreement among the various law bodies and lawyers in Scotland as to what should be done. In the stated case procedure, the problem is not at the Westminster end, but at the Scotland end.
§ The First Deputy Chairman
Order. We cannot have Adjournment debates on constituency matters during the discussion of new clauses.
§ Mr. Dalyell
I apologise, Sir Myer, but the hon. Member for Moray and Nairn 557 got away with it. Westminster produces Adjournment debates and ways of raising matters more quickly than any other form of government I know. The House gives endless opportunities to hon. Members to raise such matters and within a week of my asking for this subject to be raised, Mr. Speaker gave me the opportunity.
I cannot make up my mind whether the hon. Member for Cleveland and Whitby (Mr. Brittan) has had a brilliant insight on what should be done or is floating a kite of his own and conducting a campaign that is not relevant to devolution. I shall venture only briefly into the lawyer's den and concentrate on one issue, the parallel with the case of the Isle of Man. Added to the other question in relation to devolution, we now have the Isle of Man question.
The Lord Advocate reminded me that the Isle of Man is not part of the United Kingdom and that its status is that of a dependency of the Crown, but it has its own parliament, claimed to be one of the most ancient in the world, and it passes its own laws for its internal government. The British Government have remained responsible for the island's external affairs.
It was on that basis that the Isle of Man became associated with the European Economic Community with a specially negotiated relationship which appears to favour it with many of the benefits of Community membership without imposing more than minimal responsibilities. To what extent is the parallel with the Isle of Man valid?
The island became subject to the European Convention on Human Rights under the article that allows a signatory to extend it to any territory for whose international relations it is responsible, with the proviso that the convention should be applied in such territories with due regard to local requirements—an exception which the Manx representative adopted in arguing for the retention of birching.
The British Government retain the power to legislate for the Isle of Man on all matters in the interests of good government. It is possible that the residual power may have to be invoked if, as is likely, the court rules that birching contravenes the Convention. It is more than likely that the Manx Parliament, with the substantial support of the Manx 558 people, will refuse to legislate for the abolition of birching and the United Kingdom Government may find itself under a duty to carry out its international obligation to pass legislation in this House giving effect to the European Court's findings.
Is this different from the situation that would apply after the establishment of a Scottish Assembly? It is beyond doubt that such action would cause a constitutional crisis between Britain and the Isle of Man. The rights and wrongs of birching would be all but forgotten in what would be seen as a battle over Manx independence. This is the gut issue in the clause and I hope that the Minister will explain the position.
§ Mr. John Smith
It is a little unusual to ask me to explain a clause that I have not recommended to the Committee.
§ Mr. Robert Rhodes James (Cambridge)
Has the hon. Member for West Lothian (Mr. Dalyell) noticed in this context the curious implication in Article 1(1) that would enable capital punishment to obtain in Scotland while it did not obtain in the rest of the United Kingdom?
§ Mr. Dalyell
That is very much the pattern that worries us. The hon. Gentleman has mentioned capital punishment. I referred in an earlier intervention to abortion. We are creating the conditions that will enable the Assembly to create different laws on abortion—whether less liberal or more liberal. That is exactly the situation which arises in relation to the Isle of Man.
This issue is not unique to the Isle of Man. The dispute is representative of the sort of dispute that could emerge from any constitutional relationship in which the Parliament of the United Kingdom offered legislative devolution to any of its parts while retaining ultimate and overriding legislative authority.
§ Mr. Brittan
I do not dissent from what the hon. Gentleman has said. His assiduous attendance at these debates is a byword and an example to us all. He knows that our views are identical to his own, but if the question is whether we should avoid the problems he foresees, the answer is "Yes". We would rather not have the Bill. But if we are to have 559 it, the new clauses do not alter the situation in a direction that is material from the point of view that he is now taking. They do not make any difference to the point that he is raising.
§ Mr. Dalyell
The truth is that the consequences of the proceedings going on in Strasbourg and involving the Isle of Man have a direct relevance to the system that we are in the process of setting up in Edinburgh.
I concede to the Lord Advocate that the Isle of Man is not part of the United Kingdom, but there is a parallel which must concern serious people. If we go ahead there will, time and again, be the sort of unsavoury dispute that has gone on over the Isle of Man and birching. They will be transferred to a much larger forum and may involve altogether more serious subjects.
§ Mr. Brittan
Does the hon. Gentleman agree that the alternatives facing the Government are either to incorporate the new clauses into the Bill and to let the Scottish courts deal with these matters or to intervene directly and politically, using, their powers under Clause 20 or Clause 37? Either way there will be conflict and problems.
§ Mr. Dalyell
I do not want to take any more time, but I will give way to the Lord Advocate who knows what I am talking about and may wish to comment on it.
It seems that my right hon. and learned Friend does not want to make a comment. In that case, I conclude by saying that there is a serious problem and I want to lay down a marker. For all its shortcomings, the debate has opened a manhole. We have found yet another hornets' nest of difficulties in the Isle of Man problem.
§ The Lord Advocate (Mr. Ronald King Murray)
Unless I seem discourteous to my hon. Friend the Member for West Lothian (Mr. Dalyell), I intervene to say that I in no way disagree with the reply of the hon. Member for Cleveland and Whitby (Mr. Brittan) to my hon. Friend's question.
§ Mr. Dalyell
That confirms that we now have the Isle of Man question to add to all the other questions.
§ 8.0 p.m.
§ Sir David Renton
I do not suppose that when the hon. Member for West Lothian (Mr. Dalyell) referred to the Isle of Man question he happened to realise that nearly 20 years ago, speaking from the Government Dispatch Box, I had the unexpected duty of replying to an Adjournment debate initiated by the late Mr. Tom Driberg, who complained of the Parliament of the Isle of Man asserting its powers in respect of birching. I stated the proposition that it was fully entitled to do what it did. It has gone on doing what it wanted to do and, with respect to the hon. Gentleman, he made rather heavy weather of the issue. It is a strange anomaly—I suppose that that is how he regards it—that has worked, with toleration on all sides, for nearly 20 years.
§ Mr. Dalyell
Of course it has worked for 20 years, but the current situation at Strasbourg is that Britain is having to defend a Government for whose internal policies it has literally no responsibility. It is having to do so in circumstances of maximum embarrassment. The experience of 20 years ago was sweet enough, but in current circumstances, with all the dissensions that have been endlessly argued in 34 days of debate, does not the right hon. and learned Member for Huntingdonshire (Sir D. Renton), who was a member of the Kilbrandon Commission, recognise the possibility of maximum embarrassment when the British Government and the British Foreign Office are having to argue cases in Strasbourg—for an Assembly with Assembly law officers it may be that different cases would have to be argued—alongside the Isle of Man Attorney-General, for whose Parliament's internal affairs they have no responsibility? In such circumstances would not we make ourselves look collectively ridiculous?
§ Sir D. Renton
No, I do not think so. The hon. Gentleman has overlooked that the Isle of Man as an associated State is associated with the European Economic Community and has, in relation to the Community, its own independent status that is separate from that of the United Kingdom.
Having listened to a most interesting debate, I say without hesitation that I favour the case put forward by my hon. 561 Friend the Member for Cleveland and Whitby (Mr. Brittan). If I may say so, my hon. Friend laid the foundations of the debate candidly as well as effectively.
We are providing for a written constitution for a part of the United Kingdom. It is not the first time that we have done so. It was done for Northern Ireland in 1922, and now we are doing it for Scotland. It was suggested by my hon. Friend, supported by some other hon. Members, and opposed by my hon. Friend the Member for Manchester, Withington (Mr. Silvester)—
§ Sir D. Renton
—that a written constitution provides a good opportunity for a Bill of Rights. The opposing suggestion is that whether we have a written constitution or whether we do not, we do not need a Bill of Rights.
That overlooks the strange position in which we are placed. It is strange but acceptable to me because we have become a party to, have ratified, the European Convention on Human Rights. The United Kingdom is a party to it through the act of the United Kingdom Government in accepting it and through its having been ratified. It is, therefore, binding upon the United Kingdom. It is also binding on all of us in relation to the EEC. However, until it is made part of the law of the United Kingdom it is not binding on us internally in relation to each other. If I am wrong in that proposition, I hope to be challenged at once. I believe that it is fundamental to our discussion.
Surely we should pay attention to that position when legislating for a Scottish Assembly and Scottish Executive. Although we make various provisions in the Bill as a result of our having become members of the EEC, we find as the Bill stands that the Assembly as such would not be bound by the European Convention. Surely that is a matter that should be dealt with at some stage.
It is essential that we should take care that no Scottish Assembly is tempted, perhaps through an over-developed zeal for Scottish nationalism, to whittle down any of the basic rights of people, whether expressed in the ancient Scottish Claim 562 of Rights, the Declaration of Arbroath or other historical documents to which the hon. Member for Moray and Nairn (Mrs. Ewing) referred in her interesting speech. The hon. Lady had briefed herself so well that if I had been a member of the Scottish Bar I could have wished for nothing better than to be briefed by her. However, there is surely a need to ensure that the Scottish people keep these rights.
My hon. Friend the Member for Withington said that he did not want us to have a Bill of Rights for the United Kingdom or for Scotland. I must remind my hon. Friend that we have the European Convention on Human Rights. To the extent that I have mentioned, it is binding upon us. Therefore, it is no good our saying that we do not want a Bill of Rights. In effect we have one to the limited extent that has been mentioned. As the Minister of State said earlier, the Government are rightly considering whether Parliament should be asked to make it part of the law of the United Kingdom. I do not see how the Government can escape considering that. They may find it difficult to escape asking Parliament to make it part of that law, but I do not want to be committed to that because I have not been into the matter deeply as the Government are now attempting to do.
The hon. Member for Inverness (Mr. Johnston) perhaps referred to the crux of the issue when by implication—I think almost expressly—he said that this is a question whether we have to go to the European Commission and the European Court to get redress if they find that there has been a breach of the Convention on Human Rights in Scotland, affecting anyone in Scotland, or whether, on the other hand Scottish people uniquely within the United Kingdom should have the right to go to their own courts.
As the Minister of State knows, I have a friendly relationship with the Faculty of Advocates and a great admiration for the Scottish Bench and Bar. They are not perfect, but neither are the Bench and Bar of England and Wales. However, they are made up of people whose tradition, capacity and integrity are of an extremely high order. If I were a Scotsman living in Scotland after devolution, I should not want to be pressed by necessity to go to Brussels and then to the European Court. I should want to have the right to seek 563 redress in Edinburgh, Glasgow or wherever it might be that the cause of action had arisen.
In the event of devolution taking place, which I hope it will not, within the terms of the Bill, by the new clauses and schedule we offer to Scotland something that would be to its advantage, something of which we should not deprive Scotland, having signed the European Convention of Human Rights. Therefore, I gladly support the new clause.
Several other matters have arisen in the debate to which I want to refer. One Labour Member said that the judiciary was representative of a wealthy elite. I do not know whether he was referring to the Scottish judiciary, but as the Lord Advocate knows, that would be a most inaccurate description of that body. Indeed, it would be just as inaccurate of the judiciary in England and Wales. I know the son of a policeman who is a Queen's Bench judge and another who is the son of a prison officer.
§ Sir D. Renton
Yes, there is Lord Denning. They are great men of relatively humble origin and a good mix. I do not think that any judiciary in the world has ever been totally representative of the society whose laws it has to administer. I wish that the Labour Left would abandon its ridiculous posture in relation to our judiciary.
Next, I turn to the more than academic question of entrenched clauses. The hon. Member for Birmingham, Perry Barr (Mr. Rooker) said that if there were to be changes in the constitution or in a Bill of Rights, the people should be consulted. The hon. Gentleman maintained that when we had given independence to various Commonwealth countries, we had ensured that the people were consulted. I presume that he meant by the holding of referenda. But that has not always been so.
We have some entrenched clauses in the various independence statutes, but, for the most part, they refer to the requirement of a two-thirds majority in each House of Parliament in the country concerned. References to referenda are made only exceptionally.
Let us consider the entrenched clauses in the Bill. The principal one is to be 564 found, strangely enough, in Schedule 2, paragraph 7:A provision is not within the legislative competence of the Assembly if its effect would be to amend this Act.One could hardly have a stronger entrenched clause. If this Bill of Rights were to be incorporated in the Bill, the Scottish Assembly could not amend it at all. It could be amended only by Parliament. Therefore, any suggestion that we are attempting to introduce a Bill of Rights within the Bill which has no entrenched clause is without foundation.
For those various reasons—I apologise for dealing with the matter in a way that involved making miscellaneous points—I warmly support the new clause.
§ 8.15 p.m.
§ Mr. Gerry Fowler (The Wrekin)
I listened with interest and at length to the hon. Member for Cleveland and Whitby (Mr. Brittan). I hope that there will be no charges tonight that Labour Members have sought unduly to delay proceedings, given the length of the hon. Gentleman's speech. The hon. Gentleman referred to interventions. He said that he was not conducting a seminar. I agree. One of the basic principles for running a seminar efficiently is not to give the floor too often to the more obstructive pupils and, if one makes that mistake, to be careful to correct their errors before they become endemic in the whole class. I am not sure that the hon. Gentleman met either criterion. However, I listened with interest to what he said.
At the end of the day my long-standing doubts about a Bill of Rights, whether for the United Kingdom as a whole or for Scotland in particular, were reinforced rather than relieved. One of the great problems of a Bill of Rights for the United Kingdom was implicit in what the hon. Member for Cleveland and Whitby said about entrenching the Bill of Rights in some way. In some way? In what way? That is where the proposal founders. It comes into a head-on clash with the central principles of our albeit unwritten constitution.
What I fear most is that, if we attempt to entrench a Bill of Rights in an effective manner, we shall destroy those elements upon which the working of the constitution of the United Kingdom turns. 565 The one central element of that constitution is the doctrine of the sovereignty, put properly, of the Queen and Parliament which translates, once every five years or less, into the sovereignty of the people at a General Election and, between General Elections, into the sovereignty of Parliament.
It is virtually impossible to find a way of entrenching an Act passed by this Parliament, because part of the doctrine of the sovereignty of Parliament is that no Parliament may bind its successor. Therefore, if we wish we can pass a Bill with a provision that the Bill may not be changed save with a two-thirds majority of those voting. Therefore, all that the next Parliament has to do is to repeal that provision to make it possible for it to repeal the whole Act.
§ Sir David Renton
The hon. Gentleman is right that no Parliament may bind its successor. However, Parliament can bind a devolved Assembly. That is exactly what is proposed in Schedule 2, paragraph 7.
§ Mr. Fowler
I do not deny that. I have not yet turned to the problem of entrenching a Bill of Rights for Scotland. I was talking about a Bill of Rights for the United Kingdom. That may seem irrelevant to the new clause, but it is not, because the hon. Member for Cleveland and Whitby argued that it was desirable partly because embodying in legislation a Bill of Rights for Scotland took us along the road towards embodying or entrenching a Bill of Rights for the United Kingdom as a whole.
Therefore, it is proper to rehearse some of the traditional difficulties about having entrenched in legislation a Bill of Rights for the United Kingdom as a whole, not least because, if that were to be impracticable in the long run, we would be left with a Bill of Rights for certain parts of the United Kingdom but not for the whole of the United Kingdom which, if it were to exist in perpetuity, would be an absurdity.
The hon. Member for Cleveland and Whitby made play of the fact that we are creating for the first time a written constitution. I do not follow the logic of the argument that a written constitution demands a Bill of Rights. However, we should be clear on that matter, 566 because it occurs frequently in our debates.
In what sense are we creating a written constitution? In a way, the written constitutions that this Bill and the Wales Bill will create are again not central to the main principles of the British constitution. They do not touch upon the sovereignty of Parliament or upon the doctrine of Cabinet Government. We are really extending what we do when we create local government agencies or ad hoc bodies which exercise certain legal powers. It might be said that this is extreme because we are conferring legislative powers on the Assembly. But at any time this Parliament can withdraw, alter or add to the legislative powers that it has conferred upon the Assembly.
We must not confuse devolution with the creation of a federal system or with the establishment of an independent Scotland. The way in which we are beginning to develop a written constitution is limited. Accession to the Treaty of Rome, of which I am in favour, was a significant step towards a written constitution. In that situation, we accepted something which, unless we renege upon our treaty obligations, fetters the powers of Parliament.
I turn to the question of a Bill of Rights for Scotland.
§ Mr. J. Enoch Powell (Down, South)
Before the hon. Member leaves that point, and as the matter is of great importance—he said "Unless we renege upon our treaty obligations"—I suggest to him that it is more correct to say "Unless we make use of the implicit right in the treaty to terminate our adherence to it." The matter is, of course, bound up with the assertion in the Treaty that it is of indeterminate length. It would not be correct to regard withdrawal from the Treaty as reneging.
§ Mr. Fowler
The right hon. Member for Down, South (Mr. Powell) is correct. I was using shorthand.
I am opposed to the new clause for four reasons. First, it is unnecessary. As United Kingdom signatories to the European Convention, we remain after devolution as before. Any United Kingdom citizen who is resident in Scotland may petition the European Commission and ultimately gain access to the European 567 Court. That is not changed by the Bill. Furthermore, restrictions are built into the Bill about what the Scottish Assembly may do in contravention of treaty obligations. These restrictions are embodied in Clause 20(1)(b) and in Clause 37 as it concerns executive acts.
The new clause would prove to be a work of supererogation. It would make Clause 20(1)(a) apply as well as Clause 20(1)(b). Since the whole Act would be construed together and since Schedule 2 would be construed in the light of this new clause, any attempt at legislation by the Assembly which contravened the European Convention on Human Rights would not be within the legislative competence of the Assembly. Splendid. That is an Act of legislative overkill. It is not necessary. I cannot see that the rights of United Kingdom citizens living in Scotland would in any way be damaged after devolution if we do not add the new clause to the Bill.
My second objection is more positive. It is not only necessary but confusing. It is confusing because if we add the new clause to the Bill the right of a United Kingdom citizen to go to the Commission and to the Court would remain unchanged. There would be a parallel right in Scotland to use the domestic courts. It would be possible for the United Kingdom Government, using Clause 20 or Clause 37, to declare legislative or executive acts to be invalid. On top of that, because we would all remain United Kingdom citizens, it would not be a question whether a resident of Scotland was in contravention of some convention but whether that act occurred north of the border and whether that act about which the citizen complained fell within the devolved powers. That would create a jungle which would be unhelpful to the citizen because it would be exceeedingly confusing.
§ Mr. Brittan
There is no jungle except that which is created by the hon. Member for The Wrekin (Mr. Fowler). The European Convention would be part of the law of Scotland. An attempt by the Assembly or the Executive to act in contravention to it would be illegal under the law of Scotland. The citizen would have recourse to the courts of Scotland.
§ Mr. Fowler
The hon. Member for Cleveland and Whitby has come to terms with neither of the two points that have been raised in the debates, to both of which I have already referred. First, if the Scottish Assembly or the Executive attempted to act in contravention of the European Convention, it would be denying the spirit of the Bill in any event. The United Kingdom Government could ensure by their action that such a proposed action by the Assembly did not take place. That is the meaning of Clauses 20 and 37.
Secondly, the hon. Member has not come to terms with the fact that the Convention does not march precisely with the devolved powers. For example, it is pointless to pass legislation preventing a Scottish Assembly from taking people into slavery. It could not do that because it does not come within the devolved powers. If the hon. Member for Cleveland and Whitby put down an amendment adding that provision to Schedule 2, we could consider it at Report stage.
My third objection is that it would give power to the Scottish courts. My objection is not the same as that raised earlier to which the right hon. and learned Member for Huntingdonshire (Sir D. Renton) took exception. The clauses of the European Convention are exceedingly wide in their drafting. They are not specific. They do not touch upon specific acts—whether legislative or executive—of Government. I believe that it is a mistake—and this is in no way an attack upon the judiciary but rather a defence of democracy—to give the courts the right to determine whether a wide range of acts falls within the wide provisions of legislation. I think that the error in doing that is that one then commits oneself to legislation by the judiciary, and that is why I prefer a system whereby people may come back to a democratically elected Assembly with their detailed complaints which may provide for each complaint to be looked at afresh rather than trying to set it within a very broad framework of provisions.
Finally, I object to the clause on a political ground. Regardless of what the hon. Member for Moray and Nairn (Mrs. Ewing) said this evening, I have not the slightest doubt that there will be those in Scotland who, if the clause is added 569 to the Bill, will say that England is all right because it does not need a Bill of Rights and there is no possibility of oppression there, but it is necessary to put the clause into a devolution Bill for Scotland. The right hon. and learned Member for Huntingdonshire is the last person to believe that the Scots are barbarians, but he said, in all innocence, that we had to guard against the possibility that the Scots might legislate or act executively in contravention of the European Convention on Human Rights.
There is the great danger in adding the clause to the Bill that one will give yet another weapon to those who wish to fuel the flames of nationalism, perhaps a nationalism much more dangerous than we hear advocated from SNP Members in this House. For all those reasons I hope that the Committee will reject the clause.
§ Mr. Stokes
I am sorry that the new clauses are deemed to have been thought necessary. I should like to think that they are necessary only because the whole Bill is of such a revolutionary character and introduces into the United Kingdom constitution such novel conceptions that further safeguards over and above the ordinary laws of the land may be required.
The very fact that we have to oppose the introduction of these clauses shows how far the Bill has taken the Committee away from the well-established and long-respected constitution of the United Kingdom, a constitution which has been the envy of many other countries for a long time. Like Burke—I am surprised that no one today has quoted him—I do not have much sympathy with abstract rights. They smack to me of the French Revolution and theoretical concepts of politics. In this country we have always preferred the actual to the theoretical and the specific to the general.
In the normal course of events I also have little sympathy for so called human rights, a conception that I believe to be vague or meaningless. Actual rights or duties in a given situation are quite a different matter, and it is with them that we should be concerned here.
However, in the completely uncharted seas of this Bill—the Minister and the Government try to play down just how unchartered these seas are and to ignore the rocks and shoals about which we have 570 heard for so long—it may be necessary to have further safeguards for the people of Scotland. This is because if the Bill becomes law those people will be in a different position from that of any other subject of the Queen in other parts of the United Kingdom.
No other part of the United Kingdom will have a Parliament—Wales will certainly not have one, whether or not the Wales Bill is proceeded with. There is no knowing how far the new Scottish Assembly will go in trying its luck at extending its influence. Its Members may, of course, be highly responsible, or they may, as I fear, be not so responsible. They may, for instance, try to legislate—although it may be ultra vires—about the monarchy and about the Church of Scotland. If one party achieves power, I fear that it will certainly wish to diminish wherever possible, those links which have bound England and Scotland together so happily since the Union of 1707.
I believe, therefore, that ordinary Scottish people may in time fear the Assembly and fear this legislation. Safeguards for their liberty, which they have taken for granted all this time under the United Kingdom constitution, may be either taken away from them or put at risk.
§ Mr. Gerry Fowler
Does the hon. Gentleman realise that he is saying exactly what I was talking about a few moments ago? He is saying that the Scots are incapable of governing themselves without denying human rights. When I said that the new clause would be perceived in that way by some Scots, there were Conservative Members who shook their heads, but here we have their hon. Friend making my case for me.
§ Mr. Stokes
I am saying no such thing. The hon. Member ought to have been here long enough not to put words into my mouth. I was talking about the new Scottish Assembly, not about the entire people of Scotland. Most of the people of Scotland, I believe, do not want this Assembly, or any Assembly at all. It is to those people, and to the people in the whole of the United Kingdom, that we in this Chamber ought to be talking, whether it is popular or not, whether it gets votes or not. I have been here almost every day on this Bill and I intend to speak the truth as I see it, whether it is popular or not.
§ Mr. Douglas Crawford (Perth and East Perthshire)
May I reassure the hon. Gentleman that there is no desire on the part of the Scottish National Party to break up the United Kingdom? What we are seeking to do is to dissolve the Union of Parliaments of 1707, not to break up the Union of the Crown of 1603. It is as simple as that.
§ Mr. Stokes
I am glad to have the hon. Gentleman's reassurance at least about the monarchy. Whether that would survive in the convulsions that would take place if Scotland became a separate country, I very much doubt. What I fear about the hon. Gentleman's party, what people in all parts of this Chamber fear about his party, and what the country fears about it, is that it is using the Bill and the Assembly as a stalking horse for separation and independence.
As I said in an intervention earlier, the new constitution for Scotland is, of course, a written constitution. That is something which, except for Northern Ireland, is entirely new in British constitutional history. It may be argued whether a written constitution requires written safeguards. I admit that that is a matter of judgment. In my view, it probably does.
I am, nevertheless, sad to support these clauses. In general I do not believe in vague, general human rights, but in the new dispensation that may affect Scotland I believe that further safeguards may be necessary. It is with some sadness, therefore, that I shall go into the Division Lobby tonight in support of this amendment because I have fears about the new Assembly.
§ Mr. John Smith
In moving the new clause, the hon. Member for Cleveland and Whitby (Mr. Brittan) said that he was personally in favour of a Bill of Rights for the whole United Kingdom. I accept that that view is held by some hon. Members. The general principle of having a Bill of Rights was endorsed by the hon. Member for Inverness (Mr. Johnston). That view has been in his party for a long time, and I respect the way in which it is held. But there is quite a strong contrary body of opinion in the House and the country.
The hon. Member for Cleveland and Whitby put the clause forward as an 572 attempt to improve the Bill. Indeed, that must be the attempt of any new clause or amendment, but the hon. Gentleman also said—and it was significant that he said it—that it would advance the cause of a Bill of Rights for the United Kingdom as a whole. He therefore invited the support of those who favoured that cause by saying that Scotland should be a pioneer. I have also heard in this debate the phrase "stalking horse" and other such expressions.
Those who oppose a Bill of Rights for the United Kingdom as a whole, whose view was well expressed by the hon. Member for Manchester, Withington (Mr. Silvester), will not be attracted by the argument that they should support an amendment to the Bill on the ground that it will advance the cause of a Bill of Rights for the United Kingdom as a whole. That is a fundamental matter which has been considered and is being considered by a Select Committee of the House of Lords. There are arguments on both sides of the matter.
I do not think that it would be wise to come to a decision on whether there should be a Bill of Rights for the United Kingdom as a whole substantially within the context of a Bill creating a devolved Assembly for Scotland. [Interruption.] The hon. Gentleman said—and it was not necessary for him to say it in the course of advocating his new clause—that he thought that it would advance the cause of a Bill of Rights for the United Kingdom as a whole.
§ Mr. Brittan
The hon. Gentleman is not taking it in context. What I said was that I put forward that idea merely in response to the argument that if we were to legislate we should legislate for the United Kingdom as a whole. I said that those who favoured doing that need not be against the legislation for Scotland, because if we legislated for Scotland it would tend in that direction. But the case for doing so for Scotland stands on its merits as well.
§ Mr. Smith
The hon. Gentleman may argue that there is a case for doing it for Scotland alone, irrespective of the general case, but he said that it would advance the cause of a Bill of Rights for the United Kingdom as a whole and thus 573 sought to attract support for an amendment to the Bill from people who favoured the general concept of a Bill of Rights. I merely say to those who are against the concept of a Bill of Rights for the United Kingdom as a whole that what attracts one side of the argument must repel the other.
Many Conservative Members are genuinely opposed to having a Bill of Rights for the United Kingdom and would be opposed to importing into the domestic laws of the United Kingdom the European Convention on Human Rights. What is not at issue in the debate is whether one agrees with the convention. The effect of the clause would be to import into the law of Scotland, so that they could be enforceable in the courts, the provisions set out in the convention, to which the United Kingdom adheres but which it has not yet thought suitable to import directly into our domestic laws.
In passing, I should mention that New Clause 6 is not all that well adapted for use in the Scottish courts. Although the hon. Gentleman got "injunction" translated properly into the Scots word "interdict", he left in the middle of the clause the words "plaintiff" and "defendant", neither of which is known to the law of Scotland.
§ Mr. Smith
No, Sir. There are much better points, but, as the hon. Gentleman has a number of colleagues who are Scots lawyers, he should take not 50 per cent. instruction from them but 100 per cent. It is clear that he did his best when he put "interdict" in, but he could have done better by getting rid of the words "plaintiff" and "defendant". [Interruption.] The hon. Member must not be so sensitive about having made a mistake. The best thing when one makes a mistake in the House of Commons is to admit it and not to become too sensitive towards those who have discovered it. The hon. Gentleman ought to allow himself to be teased a little from time to time. It helps our proceedings to be able to do that and for hon. Members to be able to take it.
574 8.45 p.m.
The main reason why I invite the Committee not to accept this new clause is that I think it would be unwise for Parliament to take any decision regarding the relationship between the European Convention of Human Rights and our domestic law when we are considering this matter at the moment. As the Committee knows, the Government have issued a discussion paper setting out the arguments for and against. It would be wrong to move into devolution importing into the Bill this convention which, as my hon. Friend the Member for The Wrekin (Mr. Fowler) has said, does not march very easily with the detailed provisions of the Bill.
My hon. Friend the Member for The Wrekin pointed out the references to slavery in the European Convention of Human Rights. He also referred to the rights to join trade unions. Those of us who have been with this Bill in Committee know that the Assembly does not have rights over trade unions. Employment law is a reserved subject. My hon. Friend was also right to say that these provisions are extremely wide in their application. They are set in very general terms.
I say to the hon. Member for Moray and Nairn (Mrs. Ewing) that she may be putting great inhibitions on the power of a Scottish Assembly, bearing in mind how wide the convention's provisions are. Legislation emanating from the Assembly could frequently be attacked in the courts on the basis of some of the wide provisions of the convention. It is not a convention designed for the powers which the Assembly will have. A little unwittingly the hon. Member may be placing a halter around the neck of the Assembly. As I understood it, the SNP position has been that there should be ever wider powers for the Assembly, with no United Kingdom restrictions.
§ Mrs. Winifred Ewing
Will the Minister consider the point on which I ended my speech, which was that in a world where there is slavery, where there are problems of human rights, for instance when people are prevented from leaving a country, this convention represents at least a minimum standard and we would 575 be setting a good example? The nationalist Bench is at least prepared to take whatever consequences there may be as a result of such a noble aim.
§ Mr. Smith
I do not know whether the aim is noble. It may be intended to be noble. I would have thought it much better, if we want a Bill of Rights to function in the Assembly, entrenching certain rights for the citizens of Scotland, to design such a Bill specifically for that purpose. Instead of that it is suggested that we take the European Convention, designed with the normal powers of Parliament in mind, and apply it, holus-bolus, to a devolved Assembly which has responsibility for only some of the issues in one part of the United Kingdom.
If this clause were carried there would be direct access to the courts by all citizens of Scotland but not by those in England. It would be wiser for the United Kingdom to deal with the matter as a whole in one way or another. To import this convention into the Bill would not sit easily with the definition of responsibilities. That has been clearly demonstrated by the examples of slavery and trade unions.
My hon. Friends the Members for Stockport, North (Mr. Bennett) and Birmingham, Perry Barr (Mr. Rooker) took the argument in a slightly different key. They pointed out that the difficulty about the proposal for a convention was that it was largely negative. They wanted certain things which were much more positive, such as rights of access—the "open government" case that they have argued assiduously so often. I have had the opportunity of discussions with them about the subject. No doubt, if New Clause 2 had been selected they would have been able to develop their arguments more fully, although even so they were able to demonstrate some of them in favour of the proposition that they wished to advance.
But, with the greatest respect to the sincerity with which my hon. Friends hold their views, we do not think that it would be appropriate to build matters into the Assembly which we believe it should be able to take its own decision about. Little is said about procedures in the Scotland Bill and in the Wales Bill—much less than in the Scotland and Wales Bill of the last Session. I am sure that 576 when the Assembly is established, the case that my hon. Friends have made will be carefully considered by its Members. I hope that it will be. I do not endorse everything that my hon. Friends have said, but they have raised important points well worthy of consideration by the Assembly.
No doubt, since my hon. Friends are persistent men, and as there are some persistent ladies who associate themselves with the general cause, they will pursue their arguments with those responsible in the political parties, with those elected to the Assembly, and with those who may form the Administration.
§ Mr. Andrew F. Bennett
My hon. Friend is hoping to get as many people as possible to vote for this Bill in the referendum. Surely he should be prepared to spell out the details. For many people in Scotland, the question whether devolution will be a good or a bad thing is not as important as whether they will get more open government than they get at the moment. If that is to be left to the Assembly, it puts off the question until the Assembly votes on it.
§ Mr. Smith
One of the difficulties is that so many people with very good causes seek to put them into the Bill. We prefer on the whole to leave such matters for the Assembly. One has to have reasonable confidence in it. I hope that the result in Scotland will not be the sort of closed society as that to which my hon. Friend the Member for Perry Barr referred—for example, not giving public access to the proceedings of the Assembly, and so on. I hope that government will be conducted as openly as possible. It should be possible to do that in a country of only 5 million people, considering the range of responsibilities that the Assembly will have. It is a far more difficult task for the United Kingdom Government, with the multifarious responsibilities that they have.
If this is regarded as a general debate about whether a Bill of Rights is desirable for the United Kingdom, it has been interesting, but I must advise the Committee that it would not be wise to tack on to the Bill, dealing with devolution, this set of rights which are defined in advance, which are not suited to the structure of the Bill, and which would, 577 indeed, cause great difficulty in the operation of the Assembly. The Assembly would find itself confined, perhaps, by a series of cases against it on the very wide principles contained in the European Convention.
§ Mr. Russell Johnston
Can the hon. Gentleman give some examples of the difficulties which would be experienced?
§ Mr. Smith
I think that the difficulties that would arise from direct enforcement include provisions which deal with the criminal law. For example, there are provisions in the convention that no one should be liable to imprisonment for breach of contractual liability, and so on. Such things might cut across the freedom of the Assembly to legislate in these matters. Moreover, as was said by the hon. Member for Cambridge (Mr. Rhodes James), difficulties could arise under Article 1.
Another example is Article 7(1):Everyone has the right to respect for his private and family life, his home and his correspondence.I am not sure precisely what that means. I am sure that it is included with the very best of intentions, but one of the difficulties is that a litigant might take any act of the Scottish Executive or of the Scottish Assembly to court and manage to get on its legs an argument which in the end was fallacious, using the pretext of some of these provisions.
The major difficulty, however, is that the proposed Bill of Rights is not designed to go with the structure of the Bill. If it were, there would, perhaps, be a much more powerful argument for advocates of a Bill of Rights. But I think that even those in favour of having a Bill of Rights for the United Kingdom will recognise that this is a bad way of doing it, tacking on something because one is enthusiastic about a general principle although its incorporation may cause great difficulties in the operation of the Assembly.
§ Mr. Brittan
There is nothing that ill accords with the Assembly or the structure of the Bill. The truth is that, Bill of Rights or no Bill of Rights, if the Scottish Assembly sought to do the things which the Minister says might cause difficulty, it would be acting contrary to its powers 578 because it would be in breach of a United Kingdom international obligation under the European Convention. Moreover, not only would the Assembly be in breach of its powers and acting ultra vires but the individual would have redress. The only difference at the moment, if our proposal is not incorporated in the Bill, is that the individual will have redress to the European Commission and Court, whereas if it is in the Bill he will have redress before the Scottish courts.
§ Mr. Smith
There is quite a difference between accepting an international treaty and allowing certain principles embodied in a convention, which is part of that treaty, to be enforced directly in the courts of this country. The hon. Gentleman cannot get away with saying that there is no question of infringement of parliamentary sovereignty if the European Convention on Human Rights is imported into the domestic law of both England and Scotland. There is a serious question about limitation of parliamentary sovereignty. One might find some ingenious ways of getting round it, but there is no question whatever that parliamentary sovereignty is one of the serious issues involved.
If this Parliament were bound by the European Convention being imported into the domestic law of England and Scotland, perhaps at the same time, it would be open to aggrieved citizens to challenge the vires of Acts of this Parliament in the courts on the ground that they infringed the convention which has been imported into part of our law.
The hon. Gentleman says that the Scottish Assembly is different because it is not a sovereign institution. But we should then have a situation in which the Assembly was confined by the convention but the United Kingdom Parliament was not, so that there would be access to the courts, for example, on a change in education made by the Assembly but no access to the courts about a change in 579 education made by the United Kingdom Parliament affecting England.
It is not desirable to take an international obligation such as the European Convention and have it enforced directly in only one part of the United Kingdom. It makes no practical sense to have different rights on that scale and about a matter which at root relates to a United Kingdom obligation. The whole of the hon. Gentleman's case was that he was seeking merely to put into our domestic law what is a United Kingdom obligation already in terms of the treaty.
I do not believe that the proposal before us makes much sense, and I assure the Committee that it does not sit well with the structure of the Bill. I am sure that even those who favour having a Bill of Rights for the United Kingdom, for Scotland or for any other part of the United Kingdom, if it came to that, would find it difficult to run both of these together.
The Bill has been carefully constructed, and its division of responsibilities is precise. Some hon. Members have criticised it as too precise. I urge the Committee that at this late stage to import this new principle, which has implications for the whole United Kingdom—though I leave that aside at this moment—would not be wise and would not be a way of creating effective legislation.
§ The Committee would be much wiser to leave the whole question until it has been decided after full consideration. As hon. Members know, it is under active consideration now. When a conclusion has been arrived at, the House can come to a decision, if the European Convention is to be incorporated into our law, on how it is to be done. This is not the time.
§ Moreover, as I have said, the proposal is unnecessary. It is not necessary to protect the citizen, because the United Kingdom Government can block any legislation under an international obligation under Clause 20. However, though, unnecessary, it has been useful for a general discussion on the question of a Bill of Rights. But I do not think that useful discussion means that there should be a change made in the Bill which does not sit well with its structure and with the way in which the Bill has been organised. Great difficulty and confusion would be caused if we embodied the change proposed in the new clause at this stage.
§ It being Nine o'clock, The CHAIRMAN proceeded, pursuant to the Order [16th November] and the Resolution [22nd November], to put forthwith the Question already proposed from the Chair.
§ Question put, That the clause be read a Second time:—
§ The Committee divided: Ayes 227, Noes 251.581
|Division No. 90]||AYES||[9.0 p.m.|
|Adley, Robert||Buchanan-Smith, Alick||Fisher, Sir Nigel|
|Alison, Michael||Buck, Antony||Fletcher, Alex (Edinburgh N)|
|Amery, Rt Hon Julian||Burden, F. A.||Fookes, Miss Janet|
|Arnold, Tom||Butler, Adam (Bosworth)||Forman, Nigel|
|Atkins, Rt Hon H. (Spelthorne)||Carlisle, Mark||Fowler, Norman (Sutton C'f'd)|
|Atkinson, David (Bournemouth, East)||Chalker, Mrs Lynda||Fox, Marcus|
|Awdry, Daniel||Channon, Paul||Fraser, Rt Hon H. (Stafford & St)|
|Bain, Mrs Margaret||Churchill, W. S.||Freud, Clement|
|Baker, Kenneth||Clark, Alan (Plymouth, Sutton)||Fry, Peter|
|Banks, Robert||Clarke, Kenneth (Rushcliffe)||Galbraith, Hon T. G. D.|
|Beith, A. J.||Clegg, Walter||Gardiner, George (Reigate)|
|Bell, Ronald||Cockroft, John||Gardner, Edward (S Fylde)|
|Bennett, Sir Frederic (Torbay)||Cooke, Robert (Bristol W)||Glyn, Dr Alan|
|Bennett, Dr Reginald (Fareham)||Cope, John||Godber, Rt Hon Joseph|
|Benyon, W.||Crawford, Douglas||Goodhart, Philip|
|Berry, Hon Anthony||Critchley, Julian||Goodhew, Victor|
|Biffen, John||Crouch, David||Goodlad, Alastair|
|Biggs-Davison, John||Crowder, F. P.||Gorst, John|
|Blaker, Peter||Dean, Paul (N Somerset)||Gow, Ian (Eastbourne)|
|Body, Richard||Dodsworth, Geoffrey||Gower, Sir Raymond (Barry)|
|Boscawen, Hon Robert||Drayson, Burnaby||Grant, Anthony (Harrow C)|
|Bottomley, Peter||Durant, Tony||Grieve, Percy|
|Boyson, Dr Rhodes (Brent)||Dykes, Hugh||Griffiths, Eldon|
|Braine, Sir Bernard||Edwards, Nicholas (Pembroke)||Grimond, Rt Hon J.|
|Brittan, Leon||Emery, Peter||Grist, Ian|
|Brocklebank-Fowler, C.||Ewing, Mrs Winifred (Moray)||Grylls, Michael|
|Brooke, Peter||Eyre, Reginald||Hall-Davis, A. G. F.|
|Brotherton, Michael||Fairbairn, Nicholas||Hamilton, Michael (Salisbury)|
|Brown. Sir Edward (Bath)||Fairgrieve, Russell||Hannam, John|
|Bryan, Sir Paul||Farr, John||Harrison, Col Sir Harwood (Eye)|
|Harvie Anderson, Rt Hon Miss||Mawby, Ray||Sainsbury, Tim|
|Hastings, Stephen||Maxwell-Hyslop, Robin||Scott, Nicholas|
|Havers, Rt Hon Sir Michael||Mayhew, Patrick||Shelton, William (Streatham)|
|Hawkins, Paul||Meyer, Sir Anthony||Shepherd, Colin|
|Hayhoe, Barney||Miller, Hal (Bromsgrove)||Shersby, Michael|
|Henderson, Douglas||Mills, Peter||Sims, Roger|
|Heseltine, Michael||Miscampbell, Norman||Sinclair, Sir George|
|Higgins, Terence L.||Mitchell, David (Basingstoke)||Skeet, T. H. H.|
|Hodgson, Robin||Moate, Roger||Smith, Timothy John (Ashfield)|
|Holland, Philip||Monro, Hector||Spence, John|
|Hooson, Emlyn||Montgomery, Fergus||Spicer, Michael (S Worcester)|
|Hordern, Peter||Moore, John (Croydon C)||Stanbrook, Ivor|
|Howell, David (Guildford)||Morgan-Giles, Rear-Admiral||Stanley, John|
|Howells, Geraint (Cardigan)||Morris, Michael (Northampton S)||Steen, Anthony (Wavertree)|
|Hunt, David (Wirral)||Morrison, Charles (Devizes)||Stewart, Rt Hon Donald|
|Hunt, John (Ravensbourne)||Morrison, Hon Peter (Chester)||Stewart, Ian (Hitchin)|
|Hurd, Douglas||Mudd, David||Stokes, John|
|Jenkin, Rt Hon P. (Wanst'd&W'df'd)||Neave, Airey||Stradling Thomas, J.|
|Jones, Arthur (Daventry)||Nelson, Anthony||Tapsell, Peter|
|Jopling, Michael||Neubert, Michael||Taylor, R. (Croydon NW)|
|Kaberry, Sir Donald||Newton, Tony||Temple-Morris, Peter|
|Kellett-Bowman, Mrs Elaine||Onslow, Cranley||Thomas, Rt Hon P. (Hendon S)|
|Kershaw, Anthony||Page, John (Harrow West)||Thompson, George|
|King, Evelyn (South Dorset)||Page, Rt Hon R. Graham (Crosby)||Townsend, Cyril D.|
|Kitson, Sir Timothy||Page, Richard (Workington)||Trotter, Neville|
|Knight, Mrs Jill||Parkinson, Cecil||Vaughan, Dr Gerald|
|Lamont, Norman||Pattie, Geoffrey||Viggers, Peter|
|Langford-Holt, Sir John||Penhaligon, David||Wainwright, Richard (Colne V)|
|Lawrence, Ivan||Percival, Ian||Walder, David (Clitheroe)|
|Le Marchant, Spencer||Peyton, Rt Hon John||Wall, Patrick|
|Lester, Jim (Beeston)||Price, David (Eastleigh)||Walters, Dennis|
|Loveridge, John||Pym, Rt Hon Francis||Warren, Kenneth|
|Luce, Richard||Raison, Timothy||Watt, Hamish|
|McAdden, Sir Stephen||Rathbone, Tim||Weatherill, Bernard|
|MacCormick, Iain||Rawlinson, Rt Hon Sir Peter||Wells, John|
|McCrindle, Robert||Rees, Peter (Dover & Deal)||Welsh, Andrew|
|Macfarlane, Neil||Reid, George||Whitelaw, Rt Hon William|
|MacKay, Andrew (Stechford)||Renton, Rt Hon Sir D. (Hunts)||Wiggin, Jerry|
|Mackintosh, John P.||Renton, Tim (Mid-Sussex)||Wilson, Gordon (Dundee E)|
|McNair-Wilson, M. (Newbury)||Rhodes, James R.||Winterton, Nicholas|
|McNair-Wilson, P. (New Forest)||Ridsdale, Julian||Wood, Rt Hon Richard|
|Madel, David||Rippon, Rt Hon Geoffrey||Young, Sir G. (Ealing, Acton)|
|Marten, Neil||Roberts, Michael (Cardiff NW)||Younger, Hon George|
|Mates, Michael||Roberts, Wyn (Conway)|
|Mather, Carol||Rodgers, Sir John (Sevenoaks)||TELLERS FOR THE AYES:|
|Maude, Angus||Ross, Stephen (Isle of Wight)||Mr. John MacGregor and|
|Maudling, Rt Hon Reginald||Rossi, Hugh (Hornsey)||Lord James Douglas-Hamilton.|
|Abse, Leo||Cartwright, John||Fernyhough, Rt Hon E.|
|Allaun, Frank||Clemitson, Ivor||Flannery, Martin|
|Anderson, Donald||Cocks, Rt Hon Michael (Bristol S)||Fletcher, Ted (Darlington)|
|Archer, Rt Hon Peter||Cohen, Stanley||Foot, Rt Hon Michael|
|Armstrong, Ernest||Coleman, Donald||Ford, Ben|
|Ashley, Jack||Colquhoun, Ms Maureen||Forrester, John|
|Ashton, Joe||Concannon, J. D.||Fowler, Gerald (The Wrekin)|
|Atkins, Ronald (Preston N)||Cook, Robin F. (Edin C)||Fraser, John (Lambeth, N'w'd)|
|Atkinson, Norman||Corbett, Robin||Garrett, John (Norwich S)|
|Bagier, Gordon A. T.||Craigen, Jim (Maryhill)||George, Bruce|
|Barnett, Guy (Greenwich)||Crawshaw, Richard||Ginsburg, David|
|Barnett, Rt Hon Joel (Heywood)||Crowther, Stan (Rotherham)||Golding, John|
|Bates, Alf||Cryer, Bob||Gould, Bryan|
|Bean, R. E.||Cunningham, G. (Islington S)||Gourlay, Harry|
|Benn, Rt Hon Anthony Wedgwood||Davidson, Arthur||Grant, George (Morpeth)|
|Bennett, Andrew (Stockport N)||Davies, Bryan (Enfield N)||Grant, John (Islington C)|
|Bidwell, Sydney||Davies, Denzil (Llanelli)||Grocott, Bruce|
|Biggs-Davison, John||Davies, Ifor (Gower)||Hamilton, James (Bothwell)|
|Bishop, Rt Hon Edward||Deakins, Eric||Hardy, Peter|
|Blenkinsop, Arthur||Dell, Rt Hon Edmund||Harper, Joseph|
|Boardman, H.||Dempsey, James||Harrison, Rt Hon Walter|
|Booth, Rt Hon Albert||Doig, Peter||Hart, Rt Hon Judith|
|Boothroyd, Miss Betty||Dormand, J. D.||Hattersley, Rt Hon Roy|
|Bottomley, Rt Hon Arthur||Douglas-Mann, Bruce||Hayman, Mrs Helene|
|Boyden, James (Bish Auck)||Dunn, James A.||Healey, Rt Hon Denis|
|Bradford, Rev Robert||Dunnett, Jack||Horam, John|
|Bray, Dr Jeremy||Dunwoody, Mrs Gwyneth||Howell, Rt Hon Denis (B'ham, Sm H)|
|Brown, Hugh D. (Provan)||Eadie, Alex||Hoyle, Doug (Nelson)|
|Buchan, Norman||Ellis, John (Brigg & Scun)||Huckfield, Les|
|Callaghan, Rt Hon J. (Cardiff SE)||English, Michael||Hughes, Rt Hon C. (Anglesey)|
|Callaghan, Jim (Middleton & P)||Ennals, Rt Hon David||Hughes, Robert (Aberdeen N)|
|Campbell, Ian||Evans, Gwynfor (Carmarthen)||Hughes, Roy (Newport)|
|Canavan, Dennis||Evans, loan (Aberdare)||Hunter, Adam|
|Carson, John||Evans, John (Newton)||Irving, Rt Hon S. (Dartford)|
|Carter Jones, Lewis||Faulds, Andrew||Jackson, Colin (Brighouse)|
|Jackson, Miss Margaret (Lincoln)||Molloy, William||Spearing, Nigel|
|Janner, Greville||Molyneaux, James||Spriggs, Leslie|
|Jay, Rt Hon Douglas||Moonman, Eric||Sproat, lain|
|Jenkins, Hugh (Putney)||Morris, Alfred (Wythenshawe)||Stallard, A. W.|
|John, Brynmor||Morris, Charles R (Openshaw)||Stewart, Rt Hon M. (Fulham)|
|Johnson, James (Hull West)||Moyle, Roland||Stoddart, David|
|Johnson, Walter (Derby S)||Murray, Rt Hon Ronald King||Stott, Roger|
|Jones, Alec (Rhondda)||Newens, Stanley||Strang, Gavin|
|Jones, Barry (East Flint)||Noble, Mike||Strauss, Rt Hon G. R.|
|Jones, Dan (Burnley)||Oakes, Gordon||Surmmerskill, Hon Dr Shirley|
|Judd, Frank||O'Halloran, Michael||Swain, Thomas|
|Kaufman, Gerald||Orbach, Maurice||Taylor, Mrs Ann (Bolton W)|
|Kerr, Russell||Orme, Rt Hon Stanley||Thomas, Dafydd (Merioneth)|
|Kilfedder, James||Ovenden, John||Thomas, Jeffrey (Abertillery)|
|Kilroy-Silk, Robert||Padley, Walter||Thomas, Mike (Newcastle E)|
|Kinnock, Neil||Park, George||Thomas, Ron (Bristol NW)|
|Lambie, David||Parker, John||Thorne, Stan (Preston South)|
|Lamborn, Harry||Parry, Robert||Tierney, Sydney|
|Lamond, James||Pavitt, Laurie||Tinn, James|
|Lestor, Miss Joan (Eton & Slough)||Pendry, Tom||Tomlinson, John|
|Lewis, Ron (Carlisle)||Perry, Ernest||Tomney, Frank|
|Litterick, Tom||Powell, Rt Hon J. Enoch||Torney, Tom|
|Loyden, Eddie||Prescott, John||Varley, Rt Hon Eric G.|
|Luard, Evan||Price, William (Rugby)||Wainwright, Edwin (Dearne V)|
|Lyon, Alexander (York)||Radice, Giles||Walker, Harold (Doncaster)|
|Lyons, Edward (Bradford W)||Rees, Rt Hon Merlyn (Leeds S)||Walker, Terry (Kingswood)|
|Mabon, Rt Hon Dr J. Dickson||Richardson, Miss Jo||Ward, Michael|
|McCartney, Hugh||Roberts, Albert (Normanton)||Watkins, David|
|McCusker, H.||Roberts, Gwilym (Cannock)||Watkinson, John|
|McDonald, Dr Oonagh||Robinson, Geoffrey||Weetch, Ken|
|McElhone, Frank||Roderick, Caerwyn||Weitzman, David|
|MacFarquhar, Roderick||Rodgers, George (Chorley)||White, James (Pollok)|
|McGuire, Michael (Ince)||Rodgers, Rt Hon William (Stockton)||Whitehead, Phillip|
|MacKenzie, Rt Hon Gregor||Rooker, J. W.||Whitlock, William|
|Maclennan, Robert||Roper, John||Willey, Rt Hon Frederick|
|McMillan, Tom (Glasgow C)||Rose, Paul B.||Williams, Rt Hon Alan (Swansea W)|
|McNamara, Kevin||Ross, Rt Hon W. (Kilmarnock)||Williams, Alan Lee (Hornch'ch)|
|Madden, Max||Ross, William (Londonderry)||Williams, Rt Hon Shirley (Hertford)|
|Magee, Bryan||Sandelson, Neville||Williams, Sir Thomas (Warrington)|
|Mallalieu, J. P. W.||Sedgemore, Brian||Wilson, Rt Hon Sir Harold (Huyton)|
|Marks, Kenneth||Sever, John||Wilson, William (Coventry SE)|
|Marshall, Dr Edmund (Goole)||Shaw, Arnold (Ilford South)||Wise, Mrs Audrey|
|Marshall, Jim (Leicester S)||Sheldon, Rt Hon Robert||Woodall, Alec|
|Mason, Rt Hon Roy||Shore, Rt Hon Peter||Woof, Robert|
|Maynard, Miss Joan||Short, Mrs Renée (Wolv NE)||Wrigglesworth, Ian|
|Meacher, Michael||Silkin, Rt Hon John (Deptford)||Young, David (Bolton E)|
|Mellish, Rt Hon Robert||Silvester, Fred|
|Mikardo, Ian||Skinner, Dennis||TELLERS FOR THE NOES:|
|Millan, Rt Hon Bruce||Smith, John (N Lanarkshire)||Mr. Ted Graham and|
|Miller, Dr M. S. (E Kilbride)||Snape, Peter||Mr. Thomas Cox.|
§ Question accordingly negatived.