§ Order for Second Reading read.—[Queen's Consent, on behalf of the Crown, signified.]9.36 am
§ Sir Edward Gardner (Fylde)
I beg to move, That the Bill be now read a Second time.
I am sure you will agree, Mr. Speaker, that the House of Commons is full of surprises. I have had the pleasure and privilege of being a Member of this House for 23 years and, faithfully each year, I put down my name for the ballot in the hope that, ultimately, I would be able to present a private Member's Bill. The years passed and nothing happened. Now, in what appears to be, alas, my last year in the House before I retire at the general election, I find myself in fifth position in the ballot. I have no hesitation at all in the choice of Bill that I would like to see go through the House, the Human Rights Bill.
The theme of the Bill has always attracted me. I could almost say that its theme has been my lifelong political interest. It has a theme of grandeur, of such grandeur that inevitably it gives one a sense of personal humility. However, the greatness of the theme contrasts with the simplicity of the aim of the Bill. That is because its simple aim is to incorporate in British law the European convention on human rights so that all of us who enjoy the rights that are set out in the articles of that convention will be able, if the Bill becomes law, to go to our own courts. In those courts, our own judges will decide whether our rights are being abused or violated, and whether those rights apply to the case that is before the court. That is the single ambition of the Bill. That ambition has attracted the attention and support of a vast number of people outside this House. I can also say with great satisfaction that it has attracted a large measure of all-party support within the House.
Today is an important day for the future of British law. That is because, at the moment, our law contains a gaping gap. Anyone who wants to rely on the convention to protect his human rights cannot come before a British court. That is because the court would say it could not look at the convention and the rights that are contained in it. It would say that the European convention on human rights is a treaty and, therefore, not part of British law, and that it could not take notice of it. II the Bill becomes law, every one of us will have the right to go to any court in the land and, subject to the Bill's stringent provisions, be able to say, "I want to rely on my rights as contained in the convention, which is now part of English law." 1224 The rights that the Bill refers to are the rights in the European convention on human rights. That sounds a grand and, to some perhaps, off-putting title, but they are the rights which belong to each one of us. They are not the rights of an egotistical idealist or rights which give a licence to betray state secrets or to breach security; they are rights which we all recognise are fundamental to our lives. They are rights which shape society and guarantee our freedoms and to which, as Edmund Burke said of religion, nothing is so fatal as indifference. They are the rights to life, liberty, free trial, freedom of expression, privacy, freedom of association and the right to he protected from degrading punishment whether in the school or by the state.
I submit that there are rights, with or without the convention, to which we have looked throughout the centuries. The House should consider a way in which, without impediment, British people can take advantage of those rights.
The European convention on human rights was signed and ratified by the 21 countries of the Council of Europe. The rights were drafted by two English lawyers. One was a skilled parliamentary draftsman and the other was Sir David Maxwell Fyfe, who later became Lord Chancellor Kilmuir. The House should look at the language of the articles in the convention. It is the language mainly of the English common law. It is language which echoes right down the corridors of history. It goes deep into our history and as far back as Magna Carta.
If anybody suggests that these are foreign laws which are foreign to our minds and spirits, I suggest that he has not read the convention's articles. In 1951, with the support of Churchill and Macmillan for the Conservatives, Lord Layton for the Liberals and Ungoed-Thomas for the Labour party, which was in government, Britain ratified the convention. We were the first country to ratify it. In those days, we saw it as I hope we see it today—as a supreme instrument to guarantee our rights. We thought it so important that, in 1953, the- Government decided to extend what they believed to be the benefits of the rights in the convention to 97 million people who lived in Commonwealth territories for which we had some responsibility.
I am sure that the House agrees that, in 1951, when the Government ratified the convention, it was assumed—it must have been—that the rights in it were covered by the law in Britain. I am perfectly sure that it was not the intention of the Government or the Opposition to create two conflicting jurisdictions. We still hear—no doubt we shall hear it today—a reflection of the view that there are two conflicting jurisdictions. I hope that 1 anticipate wrongly, but I anticipate that hon. and possibly right hon. Members will say that we do not need the convention and the rights in it because it is all covered by English law and, if such law does not exist, we can deal with matters bit by bit. They argue that, when a problem comes up, we can introduce legislation piecemeal to deal with it. That view has gone on since the treaty was ratified. Since then, it has been demonstrated time and again in Strasbourg how wrong we are to suppose that our law in its present state covers all the needs demanded by the articles in the convention. It does not at all.
I do not want to weary the House with many cases, but I remind it of one which will be strongly in the memories of right hon. and hon. Members. It involves freedom of expression as illustrated by the Times Newspapers case. It was not allowed to publish an article dealing with the 1225 Thalidomide pledge. The case went to Strasbourg, where the court said that the law of contempt, as applied by the House of Lords, was far too wide and should be altered. It was.
There was another case concerning the right to privacy, which appears to be in people's minds at the moment. Mr. Malone complained that his telephone had been tapped. He said that that was an invasion of his privacy, but the law of privacy in Britain relates to property and not to private people—or it did not.
§ Mr. Tony Marlow (Northampton, North)
While my hon. and learned Friend is going through a catalogue of cases, perhaps he could draw our attention to the case of corporal punishment in schools. Does he feel that that is something which should be enshrined in this sort of legislation, or does he feel that it is something on which the House should be able to take its own decision?
§ Sir Edward Gardner
I am grateful to my hon. Friend, because I was about to come to that. I am sure that he will listen carefully to my argument. I was dealing with privacy and telephone tapping and saying that Mr. Malone complained that his telephone had been tapped. He went to the Chancery Division of the High Court, where the vice-chancellor said, "We are very sorry, but the convention is a treaty and not part of English law, so it cannot be applied." Mr. Malone had no remedy. The judge also said that such a case cried out for legislation. In 1985 we got the legislation—the Interception of Communications Act 1985.
§ Mr. Nicholas Budgen (Wolverhampton, South-West)
My hon. and learned Friend talks about a judge saying that such a situation cries out for legislation. My hon. and learned Friend's Bill would mean that judges would not merely be offering their personal opinion to citizens as to what the legislation should be; it would mean, once the judges had ruled, that the legislature would be obliged to follow the ruling of judges.
If that situation arose and, for instance, there was a Labour Government and they abolished the right of people to send their children to private education, and the judges overruled that, does my hon. and learned Friend think that it would be possible to keep judges out of the political arena? Does my hon. and learned Friend think, once the Labour Government had been overruled in that way, that there would be a cry for judges to be elected and to be subject to the political process?
§ Sir Edward Gardner
I shall deal in some depth with that point, and I am sure that my hon. Friend will accept it from me, because it is one that will concern the House and opinion outside the House. I shall deal specifically with what I suppose is generally being called a politicising of the judges. It is an important point, and I have an important argument to meet it.
I shall now deal with freedom of association, contained in the convention. This issue was directly relevant to the question of the closed shop. The House will remember the three railwaymen who objected to the closed shop. They did not get a remedy for their complaint in Britain. They had to go to Strasbourg, where it was discovered, and became part of the judgment, that the railwaymen had a right to freedom of association. What happened? Our law was changed.
§ Sir Ian Percival
The railwaymen could not have been put by a Conservative Government in the position in which they were placed by a Labour Government, because we changed the law before the decision, to make sure that they could not be so dealt with.
§ Sir Edward Gardner
I agree with my right hon. and learned Friend, but he leaves out the knowledge that the Government had and fear that the Government had, that that case was before Strasbourg. They anticipated the result.
§ Sir Ian Percival
That is quite unreasonable. Right from the start we declared that the measures taken against the railwaymen were totally unfair, and that, at the first opportunity, we would reverse them. It did not depend on fear of the outcome of the hearing at Strasbourg.
§ Sir Edward Gardner
My right hon. and learned Friend pulls me up for using the word "fear". Perhaps I should say "influence". I accept everything that my right hon. and learned Friend says on the question of fact, but it does seem not unreasonable to suppose that the Government of the day could be influenced and could, among the influences that were being brought to bear, have taken these influences into account when considering future legislation.
The last case that I invite the House to consider is the question whether our law is sufficient to deal with the rights of a person to be protected from degrading punishment. The House will remember that a case went to Strasbourg—more than one case—on this right, and again it was found that there was a breach, a violation of the law.
I hope that I report faithfully to the House what I heard on the radio last night—that yesterday the court at Strasbourg found in favour of a young man, who is now in his twenties, who as a child had refused to submit to the prospect of corporal punishment and was asked to leave his school. He has been awarded £3,000 and the British Government have been ordered to pay his costs.
People who have to go to Strasbourg, as so many have, inevitably find themselves in difficulties. First, there is a difficulty of getting to the court. They have to go through the Commission of Human Rights, which acts as a sieve, and if the case is held to be admissible it goes before the court. That may take seven years of anybody's life. It took seven years of the life of the man who succeeded yesterday. He was a schoolboy when the action was started, and he is now in his twenties; seven years after the action started, the court came to its conclusion.
If any hon. Members take satisfaction from the difficulties, the delays and costs that stand in the way of people going to Strasbourg and making sure that they get their rights, one can understand their attitude. They are not interested in these rights. They do not want the convention to be part of the safeguard of our liberties and life. They believe that all is fine, that we can all relax and hope that the Government of the day, when the matter comes up, will provide a remedy. All the experience of the years since 1951 has shown the fallacy of that argument.
§ Sir Edward Gardner
I am not perorating. I am dealing with a point that my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) raises, rather like an elegant parrot.
Anyone who goes to Strasbourg has to face the fact that it might cost more than £70,000. Where is the money coming from? It does not come from Europe, because the most that one can obtain from legal aid in Europe is £700. Apart from the difficulties, delays and costs, can we imagine the frustration that must pass through the minds of anyone who is subjected to this kind of diffficulty? It is not surprising—I think that this can be said with some confidence—that support for the Bill, and the incorporation into British law of the convention which it will bring about, is widely supported outside the House as well as inside the House on an all-party basis. Seventy-one per cent. of the people questioned in a recent Gallup poll said that it would increase their confidence in British democracy, and of those questioned, a ratio of 2:1 said that they wanted the convention incorporated into British law.
§ Mr. Eric Forth (Mid-Worcestershire)
I do not make this point flippantly. Can my hon. and learned Friend guess how many of the people to whom he has referred with approval have any knowledge of the contents of the convention or have set eyes on it, read it or understood it? My hon. and learned Friend challenged hon. Members on that point. What is his guess?
§ Sir Edward Gardner
My guess is that if everyone who has been asked these questions had read the convention, the figures would he much higher.
§ Mr. Marlow
Will my hon. and learned Friend answer the question whether he feels that it is more appropriate for a court, either here or in Strasbourg, to make a decision about corporal punishment in schools or whether he feels that that decision should be made by an elected House of Commons?
§ Sir Edward Gardner
I promised that I would deal wih that point. I shall come to it after I have gone briefly through the Bill. Time is passing, and many right hon. and hon. Members wish to speak.
The purpose and effect of the Bill are made clear in the long title and the memorandum. That aim is that judicial remedies in the United Kingdom should be available for all who suffer, or who can establish that they have suffered, from violations or breaches of the human rights which are referred to in clause 1 as "fundamental rights and freedoms".
Clause 2 is a key provision. It states:the fundamental rights and freedoms shall have the force of law in the United Kingdom.Those fundamental rights and freedoms are set out in schedule 1. I shall not go through all the provisions in detail, because I think that all right hon. and hon. Members are fully aware of all the rights contained in the convention—or am I mistaken?
Clause 3 prohibits breaches of the convention and makes such breaches actionable in law in the United Kingdom. Clause 4 is a very important clause—[HON. MEMBERS: "Hear, hear."] I am glad to have my hon. Friends' approval and support. The aim of the clause is to 1228 ensure, as nearly as possible and subject to the sovereignty of Parliament, that the observance of human rights is securely based in British law.
Clause 5 is a limitation clause. Clause 6 is a technical provision on judicial notice. Clause 8 refers to the technical application of the Crown Proceedings Act 1947. Clause 9 deals with the power of derogation by Order in Council in a war or other public emergency. As the House well knows, the convention and protocol 1 will become British law if the Bill is passed.
I say without immodesty and without any personal motive that this is a beautifully drafted Bill. I only wish that it were mine and that I could be credited with the drafting. But the drafting was mainly the responsibility of two right hon. and learned Members of another place, Lord Broxbourne and Lord Scarman. Lord Broxbourne introduced a similar Bill in another place, supported by Lord Scarman, and it passed through all its stages. I hope that it will do the same here.
I should like to return to the point that has been agitating my hon. Friend the Member for Northampton, North (Mr. Marlow) for so long. Who should decide whether someone has to be submitted to corporal punishment in a school or to judicial birching? In relation to the right to be protected from degrading punishment, is it beyond the wit of our High court judges to apply the language of article 3 to a particular case? No one has said that that is too difficult for the 21 judges in Strasbourg. They do it time and again. Why should not our judges do it? Are our judges to be regarded as political and their impartiality to be queried? Are they to be regarded as having their impartiality undermined in any way if they are asked to deal with the convention and its various articles?
I do not want to go through all the articles, but I shall take, for example, education, which was rightly mentioned by my hon. Friend the Member for Northampton, North. I say rather nervously, in view of the intervention of my right hon. and learned Friend the Member for Southport (Sir 1. Percival), who has ministerial experience and knowledge which I sadly lack, that because of Strasbourg's influence, our law has been altered so that there will no longer be corporal punishment in our schools and judicial birching. Corporal punishment has gone, whether we like it or not. [HON. MEMBERS: "We do not like it."] My right hon. and hon. Friends do not like it very much, and I am sorry that that should be so. They should read Mr. Justice Barry's report on corporal punishment and they might change their minds. As a result of Strasbourg's decision, we have had this change of law. It is a good change. Furthermore, it does no politicises the judges. If our judges cannot make decisions on such subjects, on what cart they decide?
§ Mr. Marlow
The question which I asked and about which, as my hon. and learned Friend rightly said, I continue to agitate-I am not asking whether judges can make these decisions on whether they would do so in a biased or an unbiased way-is whether it is right that decisions of this political magnitude should be made by judges, whether they are in the United Kingdom or in Strasbourg. Is it not right that decisions of this sort. I am not saying this particular decision-and of this political magnitude should be taken by the House of which my hon. and learned Friend has for such a long time been a distinguished Member?
§ Sir Edward Gardner
If I may say so, I take issue with that. Parliament is supreme. Its sovereignty will be unimpaired by the Bill. If Parliament in its wisdom wants to repeal any part of this legislation, it can. Under article 65 of the convention, if the House wished, it could denounce the convention. Is that the logic of my hon. Friend's point?
There are some arguments on which those who oppose the Bill rely. I shall not go into them in detail. One is the sovereignty of Parliament. They say that it is the supreme power of Parliament to make and unmake laws. I say firmly, unequivocally and emphatically that, when the Bill becomes law, it will be as vulnerable as any other part of our legislation to the will of Parliament if at some stage the House wishes to amend or repeal it.
§ Mr. Fred Silvester (Manchester, Withington)
Could my hon. and learned Friend comment on the Tyrer case, which abolished judicial corporal punishment in the Isle of Man? My hon. and learned Friend will recall that at no stage has the Manx Parliament altered the law, and that since the passing of that judgment, the courts in the Isle of Man have, on more than one occasion, continued to pass the sentence of judicial corporal punishment. Those punishments have not been carried out, because the Home Office came to a deal with the Executive Council of the Isle of Man that such punishment should not be carried out. In 1981 the Manx Court of Appeal decided that, since the convention was in operation, carrying out that punishment would be in breach of its international obligations.
§ Mr. Silvester
I am being as brief as I can. [Interrupton] This is an important point.
The domestic law that was set up in the Isle of Man has been overridden by the convention, despite the fact that the Manx Parliament has taken a different view of the matter.
§ Sir Edward Gardner
I do not disregard in any way what my hon. Friend has said, and no doubt he will make those points in his speech. It is true that no law has been passed about judicial birching in the Isle of Man—my hon. Friend is right about that—but the judiciary there decided rightly or wrongly, that there should be no more judicial birching in the Isle of Man as a result of the Strasbourg case.
The impartiality of judges has been dealt with at some length, but it is my submission that we trust the judges—
§ Sir Edward Gardner
—to look at the obscurities of some of the legislation that is passed by this House, and trust them to come in a way that is perhaps beyond human comprehension—
§ Sir Edward Gardner
May I just finish my sentence? We trust them to come, in a way that perhaps is beyond human comprehension, to the meaning of a particular statute. If one contrasts those difficulties with what might be regarded as the celestial clarity of the convention, one sees that the latter is written in the simplest language. It may be wide, it could be argued that it is imprecise in some of its statements, but it is not impenetrable, nor could it 1230 mislead anybody. It is the sort of material upon which our judges have worked for centuries, and upon which they can be relied to work now with that same virtue of impartiality that has made them famous.
§ Dr. Godman
I am grateful to the hon. and learned Gentleman for giving way. It is not only parliamentarians who question, legitimately, a Bill of Rights. In one of his Reith lectures, Lord McCluskey asked whether judges should be allowed to overrule the decisions of democratically elected legislatures. Surely that is a valid criticism.
§ Sir Edward Gardner
It would be a very valid criticism, and I bow with respect towards the learned judge and his stature as a lawyer. However, if he was referring to my Bill—it is not clear whether he was—he was, if I may say so respectfully, mistaken. As I have already tried to satisfy the House, there is no question of undermining the sovereignty of Parliament. The premise upon which Lord McCluskey proceeded was that the supremacy or the sovereignty of Parliament would be impugned.
Three arguments are available in this debate. I shall not discuss them in detail but will merely outline them. One is sensible and logical, the second is logical and the third is neither logical nor sensible. The sensible and logical argument is that, because we have the convention, which gives us certain rights, there should be no impediment to our ability to enjoy those rights. To follow the logic through, one should enable people who want to rely on those rights to come to a court and before judges of their own country.
The second argument is logical: "We do not like the rights that are contained in the convention and we never needed them. British law is equally sufficient and extensive and will satisfy all our needs. Therefore, we do not need the convention and we should denounce it." As I have already said, we shall do so under article 65. If that is the argument, let the people who support it say so.
§ Sir Edward Gardner
I am not suggesting that hon. Members are frightened of anything. I am suggesting only that they are not being very sensible. I submit to the House, as a matter of well understood fact, that that argument would be in conflict with the mass of public opinion outside the House and with the majority of right hon. and hon. Members within it.
The one argument that is neither sensible nor logical would say: "Yes, we applaud the rights that we have. Let us keep them, but let us make it as difficult as possible for anybody who wants to enjoy them. Let us not make it easy for people to go to a British court, let us send them off to Strasbourg to face seven years of delay and £70,000 worth of costs, with all the discouragement that we can put in their way".
I could not finish better than by quoting the Lord Chancellor, who is on tape—I was going to say, on record—because he took part in a radio discussion on the Reith lectures, with Lord McCluskey and Lord Scarman, and I am delighted that he did so. To my delight, these are some of the words that he used:We have signed the European Convention on Human Rights…and what we have done is to put ourselves in the hands of judges at Strasbourg, instead of putting ourselves in the hands of judges in Westminster or Edinburgh.1231 That was a mistake which my Bill will correct. In so doing, the Bill will fill a gap in our British law that has caused immense frustration, which should be removed as soon as possible, and which will be removed if the Bill becomes law. I commend the Bill to the House.
§ Mr. Deputy Speaker
Order. It will be evident to the House that many right hon. and hon. Members wish to speak. I hope that those who are called will bear that in mind.
§ Mr. David Steel (Tweeddale, Ettrick and Lauderdale)
I am sure that I speak on behalf of all right hon. and hon. Members when I warmly congratulate the hon. and learned Member for Fylde (Sir E. Gardner) on his presentation of the Bill to us. It was lucid, charming and witty, and we are grateful to him.
I have a great deal of personal sympathy with the position in which he has found himself in that, in his last year, after 23 years in the House, he has emerged in the lottery that we dignify with the name of ballot for private Members' Bills. I had the opposite experience. I had the misfortune to win a place in the lottery on my very first appearance in the House. Therefore, I wish him well personally and sympathetically.
I was heartened—no doubt the hon. and learned Gentleman was also—by the widespread editorial support for his Bill among the serious press, for example in The Independent, The Guardian, and the Financial Times. What confirmed my belief that we were on the right track in supporting the Bill was the editorial opposition of The Times, which appears in its nature and ownership, to have changed from the days of the great thalidomide case, to which the hon. and learned Gentleman referred.
Although it is unusual for party leaders to participate in private Members' legislation—members of my party will have the same free vote as every other hon. Member at the end of the debate—I have chosen to speak because my party and our colleagues in the Social Democratic party support the measure unanimously and have supported it consistently over the years. The hon. and learned Gentleman referred to Lord Broxbourne and Lord Scarman, and I am sure that he would also wish to pay tribute to Lord Wade, a former hon. Member of this House, who twice piloted this measure through all its stages in the other place. It is a salutary lesson to us in this House that the other place has on at least three occasions passed this legislation through all its stages. Therefore, we can debate the measure today knowing that if, as we hope, it is given a Second Reading, it will have an easy ride in the other place, which has been waiting for us to catch up with its advanced ideas on the matter.
The hon. and learned Gentleman referred to the authorship and participation in the writing of the convention of David Maxwell Fyfe and made great play of the language of English common law. With great respect I must point out that David Maxwell Fyfe was the first politician I ever met and he had the additional benefit of a sound Edinburgh education. This legislation will apply equally in Scotland and England.
When I was a student of constitutional law at Edinburgh university I was brought up on the classic doctrines of Dicey and the supremacy of Parliament. In 1232 my 20 years in the House I have come to recognise that the need for the Bill arises precisely because many of us feel that Parliament on its own can no longer adequately protect our citizens. The increase in the executive arm of Government and in the number of areas of Government activity, under Governments of all parties, and the increasing complexity and speed of modern life have meant that the individual is in need of greater protection, but is afforded less.
Our courts have had no set of guiding principles on individual liberties which is why so many of us have long campaigned for a Bill of Rights. As a result there has been a steep rise in the number of applications for judicial review from 533 in 1981 to 1,169 in 1985. As hon. Members we find ourselves unable to remedy a large number of wrongs. Despite the advent of the ombudsman, justice for the individual is still often frustrated.
The sheer scope of Government activity and the bureaucracy and technology that support it have increased exponentially over the past century since Dicey was writing his learned works. Inevitably, the individual is at an increasing disadvantage in the massive system of social management and ultimately of control, which is inherent in the world of computer files, satellite surveillance and telephone tapping.
It is a stange anomaly that British citizens must take the road to Strasbourg at great expense to seek redress for the abuse of rights which the Government have a treaty obligation to protect. The fact that more have done so and more have had their cases upheld than people from other signatory countries has been a proper embarrassment to successive Governments.
A good reason for incorporating the convention in to law is so that we can start doing our own dirty laundry in Britain rather than send it abroad. Virtually every other signatory to the convention deals with human rights cases in its courts and we shall only be catching up with them if we approve the Bill today.
It is bad for the United Kingdom's reputation, for its citizens, administrators and judges alike that the freedoms guaranteed by the convention cannot be invoked directly before the courts of England and Scotland. Since 1965 when the right of individual petition was introduced in Britain, petitions have flowed to Strasbourg. About 800 provisional files are opened on cases from the United Kingdom every year. No other state sends as many cases as that to Strasbourg. No other state has had so many cases declared admissible by the Commission, or lost so many cases before the court.
The rights that have been upheld by the Commission have always been fundamental and often far-reaching. Few rights in a democracy are more fundamental than the right of a free press, yet, as the hon. and learned Gentleman has said, the European convention had to require English law to lift the muzzle that it had placed on The Sunday Times in the thalidomide campaign. It is thanks also to the European convention that prisoners in the United Kingdom are no longer fettered in what they may write to their Member of Parliament. It was the European convention which established an even more fundamental right: a prisoner's right of access to a lawyer in connection with prison discipline. Therefore, inch by painful inch the European Court has often pushed a reluctant British Government to conform to the convention. I side with the hon. and learned Gentleman rather than with the former Solicitor-General in agreeing 1233 that the existence of cases at Strasbourg has often pushed our Government towards legislation. Another example of that is the dramatic amendments to mental health legislation which are the result of cases before the Strasbourg court.
Twenty years after United Kingdom citizens were first allowed to petition Strasbourg, the European convention continues to extend civil rights in the United Kingdom, but through an uncomfortable, tortuous process. Until the European convention is enshrined in United Kingdom law, it will continue to carry an inferior status in our courts and United Kingdom citizens who need the protection that it provides will continue to have to appeal to Strasbourg which is difficult, expensive and arcane.
§ Mr. Steel
I am just finishing and Mr. Deputy Speaker has called for short speeches.
I noticed that Conservative Members who sought to interrupt the hon. and learned Gentleman suggested that the man on the Clapham omnibus was not greatly exercised by whether or not the convention was enshrined in our law and that it was not a topic of everyday conversation. Perhaps it is not, but I am absolutely certain that the Bill seeks to increase the most basic rights of every citizen in the land. For that reason, it is of great importance and I warmly endorse it.
§ Sir Ian Percival (Southport)
My hon. and learned Friend the Member for Fylde (Sir E. Gardner) spoke in moving, noble terms of noble sentiments. I, too, congratulate him most warmly. We have both been here for a long time and we have agreed for almost all of that time, so I am sorry to have to disagree with him to some extent in what may be, for both of us, our last year.
I wish to express some doubt about what we are doing, but no hon. Member will include me in the category to which my hon. and learned Friend referred of those who do not want these rights to be enjoyed by our people. In one way or another I have fought for all of these rights all my life.
The biggest danger to democracy is that the expectations of most of our people are far higher than any Government can ever deliver, with the result that almost everybody is almost always disappointed with the performance of every Government. This is an extremely serious development. The biggest danger of this Bill is that too many people could expect far too much to flow from it.
I am all for ensuring that our people enjoy the rights enshrined in the convention, but we must never forget that the remedy in most cases lies in our own hands. That must not be underestimated. The biggest danger of infringement of these rights, for example, lies in the hands of the House. In my view, the most oppressive development of recent years has been the quantity and the quality of the legislation that has emerged from the House. The remedy for that lies in our own hands, and our hands alone.
We should not underestimate what protection we already enjoy. How fortunate we are—we have been free men and women for centuries, not because of the "one man, one vote" principle or because of the convention, but 1234 because we have established the rule of law. Under the rule of law, an independent judiciary has built up a body of law, the philosophy of which is to protect the weak from the strong. The strong can protect themselves. The strongest of all is the state. Our laws protect individuals, particulary the weak, against any kind of wrong. There must be an element of wrong. We tend sometimes to say that we shall give this, that and the other right, but sometimes we must think about the people against whom we are giving a right. The common law has held the balance between different contenders. Let us not forget that.
There has been a development in the past few years of which we should be immensely proud—that is, the development of the scope of judicial review. It perhaps happened without any form of legislation. It happened by consensus. I am proud that my Government—the Government that I support—in no way tried to stand in the way of that development. The effect has been to make Government more and more vulnerable to review by the courts. Let not the House underestimate the value of that development.
On the other side of the coin, we must look a little more closely at what the Bill will add to what we already have. I remind the House that, on the occasion on which this matter was sent to a Select Committee in another place, the Select Committee uttered these words of caution:in any country, whatever its constitution, the existence or absence of legislation in the nature of a Bill of rights can in practice play only a relatively minor part in the protection of human rights.I am sure that the House will appreciate the significance of these words:What is important above all, is a country's political climate and traditions. This is, the Committee think, common ground among both those who favour and those who oppose a Bill of Rights, and they received no evidence that human rights are in practice better protected in countries which have a code of fundamental rights embodied in their law than they are in the United Kingdom.Those words remind us that it is our duty to protect those rights. We should not look to anything outside for that protection.
I shall now examine what is added, and I refer to a point upon which there appeared to be a difference of opinion between my hon. and learned Friend the Member for Fylde when he allowed me to intervene. I do not quarrel with the proposition that the existence of a right to go to Strasbourg may influence some Governments. The Labour Government was wholly uninfluenced by public opinion. It adhered to certain laws that were detrimental to the railwaymen despite strong public opinion to the contrary. If they had persisted in resisting the case in Strasbourg and were found to be in the wrong, they may have changed the law. It was clear that they would not do it in advance because they were afraid of Strasbourg.
The point that I wish to make clear—it is right that it should be made clear—is that the matter of what might have happened in Strasbourg played no part in the decision of the Conservative Government to change the law. I say that from first-hand knowledge. We were committed to changing the law years before we held office. We opposed the legislation that placed railwaymen in a shocking position. We were commitied, from the time that the legislation was passed, to repealing it at the first possible opportunity. I am proud to have had a hand in the fulfilment of that promise. That may be a useful effect of the convention. I do not deny that. In some cases the 1235 Government may have been influenced. If the Government are not influenced—it may be that the Labour Government, on an adverse finding by the court, would have been forced to change those provisions—that is an advantage.
I refer now to the suggestion that what we are doing will introduce simplicity. I speak with some feeling because I have had to argue this case. The case concerned article 11. Article 11 paragraph 1 looks perfectly simple and, indeed, is in rather grand terms. It states what any of us would love to hear, the sort of sentiments that are dear to us. When one interprets this as a matter of law, as I have, it is a different matter.
My hon. and learned Friend will know that even judges in the court could not agree what it meant. Some judges came to different decisions and others came to the same position by different rules. If one thinks that this measure introduces simplicity, I say from first-hand personal experience that that is not so. It raises some difficult questions. I urge right hon. and hon. Members to remember that, if we pass the Bill, we shall introduce into our law a wholly new concept of what a judge must decide. In the railwaymen's case, the first matter to be decided was whether there was a breach of article II paragraph 1, which states: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.The first argument was whether the Labour legislation was in breach of that provision. In the end, that was the only matter that the court decided because, on behalf of the Government, 1 abandoned all defences based on paragraph 2 of article 11. If I had not done so, the Court would have had to decide another matter. Paragraph (2) states:No restrictions 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 protection of the rights and freedoms of others.That was the second issue raised by the Labour Government as defendants in those proceedings. There were piles of paper justifying the allegation by the Labour Government that, even if they were in breach of paragraph 1 of article 11, they were saved by paragraph 2. They said that what they were doing was necessary in a democratic society in the interests of the matters that I have recited. On behalf of the Government, I abandoned that defence. All the way along, we said that it was utterly disgraceful and could not be justified by any means. However, if we pass the Bill, that is the kind of issue that our courts will be called upon to decide. The Bill does not give everybody the right to take proceedings against everybody else who is thought to be in breach of its terms. It gives the right to take proceedings against public authorities, a right that is already covered by judicial review. However, our courts would be called upon to decide issues like that. To say that our judges are the best judges in the world is to state the obvious, but to say that they are qualified to make that kind of decision has no foundation whatsoever.
§ Sir Ian Percival
I shall give way in a minute, but not until I have finished developing my argument.
§ Sir Ian Percival
Yes, but perhaps my hon. Friend will allow me to develop this point first.
The House must also remember that although the proceedings would start with our judges, who might make what we would think were sensible decisions, the ultimate authority would be with Strasbourg. Our judges might decide the issue of corporal punishment in a way that we thought was sensible, but the complainant could then go to Strasbourg and say that the English courts had interpreted the law wrongly and that he wanted Strasbourg to make the final decision. That is a possible remedy for great ill feeling and lack of confidence. to put it mildly. I beg the House to bear these matters in mind and not to he carried away by thinking that the advantage is all one way.
§ Mr. Hanley
My right hon. and learned Friend referred to the qualifications of British judges. Will he turn his mind to the qualifications of the judges who sit on the European Court of Human Rights? Does he know their lack of qualifications?
§ Sir Ian Percival
Let me choose my words carefully. I appeared before the European Court of Human Rights, and that got me into the "Guinness Book of Records." When I first went there, 21 judges were sitting as a court, and I wondered what it would be like. Each country that is a signatory to the convention nominates one judge. On that occasion Luxembourg had nobody that it wished to appoint, so a Canadian judge was appointed. I do not say that to denigrate the European Court of Human Rights; I just point it out as a fact. Everyone ought to bear in mind that there would be the advantage in the first instance that our judges would be called upon to decide, but there would also be the disadvantage that at the end of the line there would still he the European Court of Human Rights, and if it were to disagree with our courts I do not think that the effect would be to lead to the confidence that my hon. and learned Friend believes that his Bill would instill.
§ Mr. Richard Ottaway (Nottingham, North)
My right hon. and learned Friend expressed the opinion that judges should not be entitled to pass judgment on the terms of article 11. Is he aware that the Contempt of Court Act 1981 contains the very same words to which he referred.?
§ Sir Ian Percival
That does not detract from my proposition. I speak as a practical man. I have seen the document that was before the court, when the issue was whether paragraph 2 had been satisfied in relation to trade union legislation. Anybody else who has had the misfortune to see it will agree with the view that I am putting forward: that I merely express some doubt and a word of caution—albeit, I hope, very firmly. The fact that something may create a difficulty in one sphere is no possible argument for enlarging and multiplying those difficulties.
My hon. and learned Friend said that when we ratified the convention we must have thought that it would 1237 implement our own law. I dare say that we did, but things have moved on since then. Anybody who believes that at that time we should have allowed the Strasbourg court to tell us what to do about corporal punishment is mistaken.
§ Mr. Budgen
Is it not right that although we ratified the convention it was many years before we gave the right of individual petition to our citizens? We were recognising the will of Europe, particularly the will of Germany to apply some form of external discipline to its internal political scene. By our ratification of the convention we gave a nod in that direction, but by our failure to allow indvidual citizens to do that did we not say that we did not think that it was necessary here?
§ Sir Ian Percival
My hon. Friend will develop his point later, if he catches your eye, Mr. Deputy Speaker. I shall stick to my own argument.
Whatever anybody thought when we signed the convention, a great deal of it has come true. Things have moved on, and now we have some experience. I ask the House to have regard to that experience and to the difficulties that have emerged.
I do not believe that it adds to the argument to say that 70 per cent. of the public are in favour of the Bill. Probably more people are in favour of all of us having the rights that are set out in the convention, but to say that that means that they are in favour of the Bill is a complete non sequitur. It is simply a statistic. Hon. Members who have much more opportunity than do the public to understand what would be the effect of such a Bill must ensure that we do not attach too many hopes to it.
My hon. and learned Friend referred to my noble Friend the Lord Chancellor. It is true that there is a programme "in the can" which has not yet been transmitted in which the words that my hon. and learned Friend has recited were spoken by my noble Friend the Lord Chancellor, so I had a word with him. I understand that when we hear the programme we shall be told that that was said in the context of what Lord McCluskey said in his Reith lectures, not in the context of this Bill. [Interruption.] That is not intended to be amusing. It is a fact. I know that my hon. and learned Friend would not wish the House to attach more significance to it than is necessary. Therefore I am sure he welcomes my saying that.
§ Sir Edward Gardner
Of course I was reading the Lord Chancellor's words. I read them accurately and I have submitted them to the House. I said that they suggested that a mistake had been made and that the Bill would put it right.
§ Sir Ian Percival
I think that my hon. and learned Friend has overstated it, because no reference was made to the Bill putting anything right. That is something that we have to consider ourselves. I was not in any sense being critical of my hon. and learned Friend. I referred to that matter only as a question of fact.
§ Mr. Rippon
When Lord Wade introduced his Bill, to which reference has been made, in the other place, my noble Friend the Lord Chancellor said:I shall vote for it on Second Reading."—[Official Report, House of Lords, 8 November 1979; Vol. 402, c. 1069.]
§ Sir Ian Percival
Let us, when we look at something, look at the other side of it as well. My noble Friend said that he would vote for the Bill not because he agreed with everything in it but because he felt another look could be taken at it. We have all had quite a few other looks at it since then. My noble Friend has always made it clear that he regards sovereignty in Parliament as immensely important, and whenever he has supported the principle of Bills such as this, he has made it clear that the provisions of the convention prevail only where they are not expressly or by implication overruled by statute. All I am doing is sounding a note of caution over some of the points that need to be looked at if the House decides to give the Bill a Second Reading.
§ Sir Ian Percival
We can all have a bit of fun with interventions. However, I want to end my speech so that my hon. Friends can make their own. I query whether clause 4 meets the text that I have been outlining, and right hon and hon. Members can look at it and form their own conclusions. Mine is that I am dubious about it.
I am glad to have had the opportunity to speak so early in the debate because I have another duty of immense importance which I have to perform, and I shall not be able to stay for the whole of the debate. I say that to make my apologies in advance both to my hon. and learned Friend the Member for Fylde and to the House. I hope that it will be clear that I have personal experience of trying to see how the provisions are implemented. I have no doubt as to what I want to see as the rights of our people, but I doubt whether the Bill in its present form adds anything to them. My fear is that too many people will place too much importance on it and we shall disappoint them. We should avoid that.
§ Mr. Austin Mitchell (Great Grimsby)
I shall not follow the argument made by the right hon. and learned Member for Southport (Sir I. Percival), because I could not. It seemed to be the argument that the best is the enemy of the better and that he did not want the advance or achievement that it is in our power to make because he wanted something better, which is mythical. However I congratulate stongly and sincerely the hon. and learned Member for Fylde (Sir E. Gardner). The Bill is the triumph of his career. He introduced it in a graceful, witty and powerful speech, and as a sponsor of it I wish it every success in its progress.
We have two purposes in the House and Parliament. The first is to provide for the well-being of our people, to enlarge the nation and to increase their joy, as it is put in Isaiah. The second is to protect and advance their rights and freedoms. For both those purposes we have always used the power of Parliament, which these days means the power of the party majority, and thus the power of the Executive. We should ask, before we rush to reject the Bill as an infringement of the power of Parliament, whether that power has served the people well. We have had the strongest Executive but the slowest rate of economic growth and development. We are now one of the comparatively declining industrial powers, so a strong Executive has not served us well there.
1239 When it comes to the rights and freedom of people, the strong Executive has become one of the most serious restrictions. This very week, as if the Government have carefully stage-managed the events to provide support for the Bill, what has been going on in BBC Scotland has shown that point.
The power of the Executive and of Parliament is a particular problem for us in the Labour party, and I address my remarks to my hon. Friend the Member for Newcastle upon Tyne, East (Mr. Brown) on the Front Bench. I would not want the Labour party to praise with faint damns. We can leave churlishness to the Government, to whom it comes naturally, and not take their position on this Bill, which is of great importance to the Labour party as well as to the rest of the House. In the Labour party we are traditionally suspicious of a Bill of Rights and of judges and courts—in many cases with good reason. We rely on Parliament as the engine or instrument of Socialism and on the power that the mandate confers to carry through a programme as the lever of Socialism.
We have to ask now how well, in the past decade, those two instruments have served us to advance the cause of improving the lot of the people. They have in fact become engines for reversing so much of what we have achieved over the previous decades. I am clear that rights, properly defined as they are in a European convention—although less adequately defined than I would like them to be—would provide the basis for the resistance to the rearguard action carried out by the Government, undermining the rights and position of the people. They are a base for resisting the reaction that has gone on over the past few years.
We should also consider the role of rights in Socialism. In the past weeks, two books have been published, one by my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), and a good book on Socialism and freedom by my hon. Friend the Member for Dagenham (Mr. Gould). They have both emphasised the undoubted truth that Socialism is about freedom. It must be about freedom, because economic advance gives people the power to fulfil their freedom, and a base from which they can grasp freedom. In the abstract, freedom is no use. The power and the means are needed to fulfil it. The advance of the economic well-being of the people is the advance of their freedom.
§ Mr. Mitchell
I shall not give way.
Freedom implies the opportunity to exercise rights, as well as the concession of them.
Traditionally, we have looked to the state for that means of advance. We have seen it as Socialism by prescription, handed down by Government through the state. We have to ask whether, at the level of advance and well-being that our people have reached, as our pluralistic society develops, even if it is in slow motion here—we are behind the rest of the world, but we are becoming more a diverse and pluralistic society—prescription is any longer the sole and adequate weapon to advance the cause of the people. As people are making conscious and deliberate choices as consumers in a consumer society, we have to ask whether those choices can be compartmentalised and whether we should not enlarge their choices in the political arena, in administration and in justice.
1240 Should we not look to Socialism to advance not only by prescription but by empowering the people, giving them rights and the ability to stand on their own two feet and pursue their causes in the way that they want and to make deliberate choices? That is now a major engine of advance to which we should look, through the concession of rights and the advancement of the people, to provide for the future and rights, to advance their cause, to give them information—information is power—to have Government brought closer to them by the process of decentralisation and to have Government more open to influence by them. In short, we progress by empowering the people because that is what our people want. There is a widespread desire for rights and for the strength that those rights will bring. They will give people the ability to stand on their feet and face the world. That is why it is so important that we get back to full employment. There is no greater power to help somebody face the world than the power that comes from having a job and to be able to tell one's boss to get knotted if one wants to move on to another job and to provide for one's family. We must enlarge that and bring it into the political arena. We need as a party to accept rights—not churlishly to quibble and deny them or find arguments against giving them, but to embrace the act of giving them.
I was born with one supreme advantage; I am not a lawyer. However, the Bill takes a major step on the road for rights. Even though I am not a lawyer, I could write a better convention. Indeed, it is important to note that the New Zealand Labour party is now in the process of introducing a Bill of Rights and drafting its own convention of rights that will update so many of the provisions of the European convention. It will give the people rights of trade union membership, rights in housing and all sorts of areas that are important.
It would be possible to write a better convention, but the advance proposed in the Bill is immediate, practicable, in our grasp and necessary. It is necessary because people are forced into the folly of pursuing cases to Strasbourg with an inordinate delay and expense. It can take up to eight years for a case to get through that procedure and five years is probably the minimum. It can cost about £70,000, for which only a pathetically inadequate sum of legal aid is available. Why should people be forced to that expense when they could pursue those rights through our own courts, with our own judges, and when they can use our legal system rather than having to go all the way to Strasbourg? It would help the image of Britain if those rights were brought into our law, because fewer cases would be ruled admissible by the court, to the humiliation of this country We have been ruled against in twice as many cases as any other country in Europe. That is a national humiliation. We would not face that if we could pursue rights in our own courts in our own way. That is a major practical argument.
It is important to say that this measure is popular. The hon. and learned Member for Fylde quoted the opinion polls to show the strength of support. That may well be, but the 2:1 majority who said that the they wanted the Bill, 71 per cent. of whom said that it would give them more faith in our system did not know every dot and comma of the European convention, just as I do not. However, they have a yearning and a desire for rights. We see that in our constituencies. People want to be able to stand on their own feet and pursue their own rights. That is what they 1241 were expressing. This Bill satisfies that need. The list of organisations supporting the Bill such as the British Council of Churches, the Civil and Public Services Association, the Consumers Association, Justice, MIND, the National Council for Civil Liberties and the National Council for Voluntary Organisations should give us an indication of the support for the strengthening of rights that it will confer.
It will not be a new dawn of liberty, but it will strengthen the citizen against the Executive. The citizen will be given the right to complain and to pursue his rights and the Executive will have at the very least, to answer and put up a case for what they are doing and not to act on their abstract will and power. That is a major advance.
The Bill advances the cause of liberty in another way. It introduces an element of pluralism into our system which is necessary, given the overseeing power of the Executive in Britain. It is the dominant feature of our system of Government. It is all very well for the right hon. and learned Member for Southport to say that we should rely on the power of Parliament. The power of Parliament is a party majority, not the power of independent judgment by independent-minded Members. It is a steamroller driven by the Executive. The Executive in Britain is all powerful. An element of pluralism is a check on that.
The words of Neal Ascherson in The Observer on Sunday sum up so many of my feelings about the Bill. He said that the conventionis absolutely alien to the practices and theory of the British State and, if it survived, would begin to subvert, split and topple them one after another. And that is why—on balance—I am for it.So am I, for the same reason. The Bill will introduce an element of pluralism and choice. It is another opinion by which people have to be influenced. Incorporating the convention into our legislation will educate the judges. That is vital. I can think of no higher purpose than that. It is a tragedy that we cannot advance and strengthen rights in Britain because we do not trust the judges to enforce them. That is one of the problems for the Labour party.
Professor Griffiths in his book on the politics of judiciary sees the judges, rightly, as hopelessly unfit to stand between the citizen and the state. In the view of Professor Griffiths and myself, they are insitinctively Conservative, respect property, have establishment attitudes and are grovellingly servile to the Executive. All that is true. We have to change that. How do we change it? We change it by educating them and by including another element in the system to which they have to pay attention. We have to introduce the rights which the convention will confer on the people. The judges must then listen to that and not follow their own instincts as they often do. They will have to listen to the rulings and prescriptions of the convention. That is an important process of education that we have to accept in our system.
§ The Solicitor-General (Sir Patrick Mayhew)
If the hon. Gentleman considers that the judges are grovellingly servile to the Executive of Britain, how does he explain the development by the judges, not by Parliament, of the jurisdiction of the judicial review of the exercise of discretionary power by the Executive?
§ Mr. Mitchell
I am grateful to the right hon. and learned Gentleman for that point. I should say, in passing, that I hope that he will not fulfil his role as the killer of infant Bills on this Bill, as he did on mine to take the power of conveyancing from solicitors. I hope that he will have a more magnanimous spirit towards this Bill and that he will not introduce a quibbling argument about the Bill suggesting that role.
I welcome that system of judicial review. In spite of that, the attitude of the judges is still too sympathetic and, particularly on matters of national security, they look to the wishes and instincts of the Executive. They take far too much account of that. It is interesting that a Government who developed that sort of conditioned reflex of expecting servility from the judges were humiliated in Australia when they expected Australian judges to behave in the same fashion. Therefore, we need to educate them by including this element in the system.
It is necessary to do that, because it is the only way in which we can pursue rights and enlarge the perception of the judges. An example of the affect of this legislation can be seen in the case against the BBC and the dramatic events in Glasgow last week. It was clear in the House that the Government were embarrassed by the mess that they had got themselves into. Government Members do not usually sit as silent as they did then. There was embarrassment and Ministers were half-hearted about defending a position with which they were not happy. Some Back Benchers tried to slur Duncan Campbell as a means of justifying what had happened. If the convention had been in force, those events could not have happened. The Bill confers a right of privacy and the freedom of the press to have and to use information. That can be overruled by national security.
§ Mr. Mitchell
I will not give way.
National security can overrule that argument, but the Government would have to prove national security and not just assert it and do what they do all too often, by saying, "Our convenience is national security." They would have to prove it. They could not have argued that national security had any bearing on the confiscation of the five other programmes that were carted away in those three vanloads of confiscated material. That included the tape of the state opening of Parliament, presumably so that the police could see whether Sir Antony Duff appeared on camera at any moment during the state opening. The argument of national security could not have been used. It could have been argued on one programme, but the Government would have had to prove it. That is the important advance that is made in the Bill.
§ Mr. Mitchell
I am not giving way; I am sorry.
In all those respects—pluralism and education of the judges—the Bill is a great advance. We cannot now rely—if we ever could—on the standards and integrity of good sound chaps in power, in Parliament and in the judiciary. We now have a much more populist political climate. We now have not "sound chaps" but professional politicians who respond to populist instincts in a declining nation in an economy that is in decline. Those instincts can be nasty. Those people are not committed to the defence of standards in the same way as once they might have been 1243 —we cannot trust them any longer. We need the backing of a written convention because, in this new climate, rights can all too easily be trampled upon.
To enforce the Bill, we need a more democratic and more open legal profession, which serves the people, not in its own selfish interests. We now have a legal profession that is a service industry that has ceased to serve anything but its own selfishness. We need a legal National Health Service. The power of the law should be brought to bear so that people's rights, their disputes, their right to work, and their right to get social security are enforced in a way that is open, accessible and available. At present the legal profession is certainly not that. The Bill will advance us in that direction, too. The important point is that it brings rights into the purview of the system, and forces the system to listen to them.
The arguments against the Bill have been purely quixotic—the myth of the sovereignty of Parliament; the myth of the independence of the courts. Today, we advance rights by putting them in writing and by forcing the judges to take cognisance. I hope that my party will not, out of a churlish attachment to myths, oppose the real advance in the Bill, which offers to strengthen our people against the powers of their majority.
§ Mr. Geoffrey Rippon (Hexham)
I join in the congratulations to my hon. and learned Friend the Member for Fylde (Sir E. Gardner) on using his good fortune in the ballot to propose the Bill. I especially congratulate him on the way in which he explained its provisions and its purpose with his customary skill and clarity.
In the light of recent events to which the hon. Member for Great Grimsby (Mr. Mitchell) referred, there has been a great clamour, especially on Opposition Benches, about human rights and civil liberties. That has not happened suddenly. Right hon. and hon. Members on both sides of the House—especially in opposition—I emphasise that—have made ringing speeches about individual freedoms in the face of the growing power of the Executive, to which the hon. Gentleman so rightly referred. I hope that all his right hon. and hon. Friends who made those ringing speeches about human rights and civil liberties will be here today to support the Bill instead of being at a coffee morning or a wine and cheese party in their constituencies.
This is a matter of concern particularly to right hon. and hon. Members when in opposition, because I recall my right hon. Friend the Member for Leeds, North-East (Sir K. Joseph) saying that it was the actions of the right hon. Member for Blaenau Gwent (Mr. Foot) that had made him decide that we had to have a Bill of Rights. He said of the right hon. Member for Blaenau Gwent that he was a Brutus in opposition but Caesarian in office. Indeed, at that time, one did not hear very much from the right hon. Member for Blaenau Gwent or the right hon. Member for Chesterfield (Mr. Benn) about the importance of freedom of information. I have no doubt that when they were members of the defence and overseas policy committee sometimes they did not even talk about those matters to their colleagues in the Cabinet, much less their party.
The truth is that all Governments, of whatever persuasion, have a tendency to be authoritarian, and future Governments may be even more so. That is why it 1244 is important today that right hon. and hon. Members should demonstrate that their fine words and speeches are not merelysound and fury,Signifying nothing.I emphasise to the hon. Member for Great Grimsby that this is not to say that the Bill would be of any help or encouragement to those who seek to act contrary to the interests of national security. It would, however, give everyone the opportunity to pursue his legitimate rights before the European Court, such as the right to respect for his private and family life, his home, his correspondence and his freedom of expression. My right hon. and learned Friend the Member for Southport (Sir I. Percival) said that when he went into court, to his horror, he was faced with a large pile of documents. I should have thought that the nature of his long and extensive practice meant that he was continually confronted with a pile of documents. Nobody suggests that it is easy to interpret the law or that a lawyer of his standing could get through a case in a single day. There were many documents at Sizewell, and the issues there are fairly clear. Is one reactor safer than another; is any reactor safe? It may be a simple question, but it can be difficult to answer.
§ Sir Ian Percival
I am much obliged to my right hon. and learned Friend for his nice comments. I should like to make just one point. Anybody who thinks that the Bill introduces simplicity might be wrong.
§ Mr. Rippon
I am sure that none of us would argue for simplicity in matters of law. Of course, difficulties arise. The fact that we face today is that we are already bound by the convention. Under international law, we are bound by it. Our lawyers largely drafted it, we were the first to ratify it and we have consistently recognised the decisions of the court.
The principal effect of the Bill, as my hon. and learned Friend the Member for Fylde explained, is that it gives British citizens the right of immediate recourse to a British court if they believe that their rights under the convention have been infringed. I believe that that would reduce the number of cases in which British citizens would be forced to take the long trail to Strasbourg to get a judicial hearing. The trouble is that, as long as the convention remains only an international obligation and forms no part of our domestic law, it is our citizens alone who have recourse only to that remote, delayed and costly remedy. The citizens of every other country that is a party to the convention have a right of recourse to their own domestic courts. Although that is not in the Bill, it was the intention of article 13 of the convention. It does not need to be in the Bill because, if we pass it, it will have the effect of applying article 13.
Lord Scarman observed in another place:the wisdom and experience of our judges and the traditions of English law never become available for consideration by the European Court." —[Official Report, House of Lords, 4 December 1980; Vol. 415, c. 543.]The Government might have lost fewer cases if the European Court had had the benefit of the views of English judges. The convention already binds us. This point has been made frequently in the debate. In those circumstance, why should we be more afraid of British judges than of European judges? We are told that it would be dangerous for our judges to be politicised, whatever that may mean. Those who are doubtful about the Bill make a great point about the fact that our judges are 1245 already politicised by the exercise of judicial review, a process which has been readily accepted and welcomed by my right hon. and learned Friend, the Solicitor-General. The very fact that the process of judicial review has developed, emphasises that judges can and should deal with these matters.
Another point which must be emphasised is that the Bill gives no legislative initiative to judges. Nor does it give them a veto on legislation. From time to time, courts may strike down a statute on the grounds, in effect, that it has been badly drafted or perhaps does not have the result that Parliament imagined. The courts may describe an order of regulation made by the Executive as ultra vires. However, the Bill cannot ensure that this House cannot introduce legislation because the judges will strike it down. The Bill can enable a claim that a particular statute is wrong in its drafting or intention and a court may go against the Government in a way that the Government does not expect. It can state that the European convention applies. However, the Bill cannot prevent the House from passing a law which the courts would have to obey; for example, providing that caning may take place at any time, anywhere, under any circumstances if that is what Parliament wishes. I do not know why people claim that judges are not qualified in these matters. I do not know what qualifications some hon. Members have to express views on such matters.
Parliamentary sovereignty would remain inviolate if the Bill becomes law. The Bill would, however, help to ensure that the exercise of parliamentary sovereignty was subject to more careful scrutiny with regard to basic human rights and civil liberties. In effect, the Bill would provide a check—not a total check, but a salutory check—on the exercise of arbitrary power.
The Bill does not provide a new constitution, as a leading article in The Times implied yesterday. This is not a Bill of Rights with entrenched provisions. It does not pre-empt, if anyone would so wish, the establishment of some form of constitutional court as the article in The Times today suggests. The Bill does not pre-empt or prejudge the still awaited all-party talks on a Bill of Rights which were envisaged in the Conservative party manifesto in 1979.
Today we have the opportunity to recognise that the great victories of the past, including of course the Bill of Rights of 1688, were won by Parliament acting against the Crown, the Executive. Of course, now the Executive and the law-making power are predominantly in the hands of the Government of the day. I remember Harold Macmillan once saying to a group of junior Ministers, "Remember, we are the Queen's men."
The purpose of Government, whether it is Government from the Conservative Benches or from the Labour Benches, is to get their programme through. They have to deal with Parliament. Anyone who believes that in these days a Parliament rises time and time again to exercise its authority against the Lobby fodder or the payroll vote, is living in a world of total illusion and everyone in this House and outside knows that. We can no longer take it for granted that human rights and civil liberties in this country need no more protection than is provided by parliamentary vigilance. The stream of citizens that have headed for Strasbourg to seek remedies over the years testifies to that.
1246 Our trouble today, which was identified by the late Lord Radcliffe in his Reith lectures on "The Problem of Power" in 1951—and I suggest that he was at least as good an authority on these matters as Lord McCluskey—is that at a time when the Executive and the legislature are combined:the Security of what used to be called constitutional rights is a very frail thing.The Bill, if it does not do everything, will help sustain such rights. A Bill very similar to this has passed through all its stages in another place three times. This Bill should be given a Second Reading in the House so that it can be given the same scrutiny as has been given in another place.
I interrupted my right hon. and learned Friend the Member for Southport, the former Solicitor-General, in the discussion about what the Lord Chancellor was about to say, although that was already on tape—
§ Mr. Rippon
In a moment.
When a Bill very similar to this was debated in another place, the Lord Chancellor said:I shall vote for it on Second Reading—except that I do not think that a vote will be taken—They had no doubt in another place that a Bill of this kind should be given a Second Reading and a vote was taken. The Lord Chancellor added:and I shall give it as fair a wind as I can." —[Official Report, House of Lords, 8 November 1979; Vol. 402, c. 1069.]That is what I believe the Government should do today. They should vote for the Bill on Second Reading and give it as fair a wind as they can. They are not precluded, nor is any other hon. Member, from making some of the detailed arguments, raising doubts and expressing various points in Committee.
§ Mr. Deputy Speaker
Do I understand that the right hon. and learned Member for Hexham (Mr. Rippon) has resumed his seat?
§ Mr. Rippon
No, I want to reply to a question from my hon. Friend the Member for Northampton, North (Mr. Marlow).
§ Mr. Marlow
My right hon. and learned Friend has said that it would be perfectly possible for the House, should it so wish, to pass a new law on corporal punishment. Article 3 of the convention states:No-one should be subjected to torture or inhuman or degrading treatment or punishment.It may well be that some aggrieved citizen would wish to take this through the judicial process. Can my right hon. and learned Friend take the House through the way in which that process would apply and tell us what the likely outcome would be?
§ Mr. Rippon
British judges in British courts and the European Court could state that something is contrary to the convention on human rights. That would have great force with public opinion and I hope have great force with the Government of the day and the House. However, the 1247 ultimate sovereignty of Parliament remains absolute. It can pass what law it likes and British judges would have to enforce that.
§ Mr. Tam Dalyell (Linlithgow)
I found the speech of the hon. and learned Member for Fylde (Sir E. Gardner) not only eloquent but moving. The speech was moving because it was made by an hon. and learned Member who really cares about the subject on which he was speaking. The hon. and learned Gentleman was overmodest about his own role in relation to that of Lord Scarman and Lord Broxbourne. I shall support him with enthusiasm on the Second Reading. I do not promise necessarily to support him on Third Reading because my right hon. Friend the Member for Bethnal Green and Stepney (Mr. Shore) may be correct in his suggestion that there is a case for a Select Committee. These matters should be discussed and I share some of the misgivings expressed by the right hon. and learned Member for Southport (Sir I. Percival).
At 11 o'clock last night, Professor Michael Zander said on the radio that proposals in the Bill would have been of great importance in relation to the BBC visitation in Glasgow. If this Bill had been in operation, the BBC could immediately have gone to the kind of institution that the hon. and learned Member for Fylde is proposing. There would not have been arguments over the Official Secrets Act 1911, and the delay. That was Professor Zander's opinion.
I argue from the particular to the general. There has been an un-British event at Queen Margaret drive. On Sunday morning, when I heard the BBC news of the operation, I jumped into my car to go to Glasgow. However, I thought better of that, took advice from friends and decided that I did not want a row about a Member of Parliament interfering with the course of the law.
I am a Scot with a lot of firsthand information, and more since I was in Scotland on Tuesday gathering facts, even at the expense of not being present to vote in the House. The truth is that many Scottish policemen are appalled. Were I to name sources, I would jeopardise careers and I will not be taunted into doing that. Resenting the very idea of rifling through the BBC, with whom they had daily, decent relations, the Scottish police asked the Metropolitan police to convince them that the case for entering Queen Margaret drive was watertight. Except over Northern Ireland questions, the Metropolitan police have no status outside London. They can only ask for help from forces such as Strathclyde. Not only did the Scottish police go to the procurator fiscal and the Crown Office, of which more anon, but they pressed the Metropolitan police as to the origin of the instructions. The Scots police knew that they would get public and media odium, descending on them.
At this point, reference was made to the advice of Mr. Bernard Sheldon, the legal adviser to the security services.
§ Mr. Deputy Speaker
Order. I find it difficult to relate the hon. Gentleman's remarks to the Bill. He must relate them to it.
§ Mr. Dalyell
Professor Zander is a professor of constitutional law, and this is what he said at 11 o'clock last night. Indeed, my hon. Friend the Member for Great Grimsby (Mr. Mitchell), without consulting me, made precisely the same point. One is entitled in this House to argue from the particular to the general. It would be much quicker, because I shall be brief, if I was allowed to continue my speech.
Superintendent Hilton Cole of the special branch was working closely with Mr. Sheldon. A little later, Lord Clyde made his ruling. The Strathclyde police had proverbial kittens. Some of them saw what they were being asked to do as cocking the proverbial five fingers at the Court of Session, and police officers of quality and experience in Scotland do not cock a snook at the High Court.
After Lord Clyde's intervention, the police from Strathclyde asked further questions, and they were told explicitly by the Metropolitan police that not only was there the advice of Bernard Sheldon but the authority of Downing street for entry into Queen Margaret drive and the seizure of material.
I believe my sources—I am something of a receptacle for information and am discriminating about it—who assure me that very precise questions were asked by the Scottish police about ministerial authority for what to them was a mind-boggling and unprecedented act, and that they were given the clear understanding that they had No. 10 Downing street as the authority for their action.
§ Mr. Deputy Speaker
Order. I am still waiting for the hon. Gentleman to relate his remarks to the Bill.
§ Mr. Dalyell
Nothing of this sort would have happened if, in the opinion of Professor Zander and others, the institution which the hon. and learned Member for Fylde is proposing was in operation.
I will be acquitted of being a Scottish nationalist or of having Scottish nationalist tendencies, but I have heartfelt sorrow for the Scottish police and share their seething anger of some decent, good police officers at the way in which this operation was run from London. We should remember that the operation could have been killed stone dead if this Bill had been in operation. Scottish Conservative Members should be warned that Mr. Ingham and Mr. Sheldon are excellent recruiting officers—I mean sergeants—for the Scottish National party—
§ Mr. Marlow
On a point of order, Mr. Deputy Speaker. You are always very wise and you are aware of what is happening, but it appears to some of us that the hon. Member for Linlithgow (Mr. Dalyell) is getting a great deal of latitude. Would you give the same sort of indulgence to Conservaive Members should they be speaking about something wholly unrelated to the Bill?
§ Mr. Deputy Speaker
The hon. Member for Linlithgow (Mr. Dalyell) has endeavoured to explain to the House how his remarks relate to the Bill. I am sure that he will continue to do so.
§ Mr. Dalyell
They are precisely related.
Conservative Members of Parliament are padding round the corridors of Westminster, casting blame and aspersions on the Lord Advocate. Let me assure them that those careful and distinguished lawyers in the Crown Office know their history. This Bill is partly about history. 1249 It is about 1763 and John Wilkes, about the North Briton and about general warrants. If we are to be concerned about general warrants, thank heaven for the right hon. and learned Member for Fylde.
It is inconceivable that able and conscientious men of the quality of the Advocate Depute, Mr. G. W. Penrose, would be party to encouraging the Lord Advocate, off his own bat, to allow BBC Scotland to be trawled.
Let me say a kind word about the Lord Advocate. It is simply not in Kenny Cameron's nature—decent-minded, able, rather non-political person that he is—to initiate or acquiesce in a massive police visitation on Queen Margaret drive unless he had assured himself that he was required to do so by the highest ministerial authority. It was to the Head of Government's office that they understandably turned. I do not blame them, as the press and public consequences were foreseeable and foreseen, predictable and predicted. I leave it to my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), in his letter to the Secretary of State for Scotland on 4 February 1987, to clear up the discrepancies arising between the Secretary of State, at column 857 of Volume 109—
§ Mr. Dalyell
It has everything to do with it. There were discrepancies between the Secretary of State and the Solicitor-General, at column 852, about the role of the Lord Advocate and possible contacts with the Secretary of State for Scotland.
What I was told in Scotland on Tuesday 3 February, confirming information that had come to me earlier from other sources, was that the Crown Office, alarmed by the enormity of what it was being asked to do in authorising a police descent on Queen Margaret drive, made a direct approach to Downing street.
§ Mr. Dalyell
They relate to article 10 of the convention.
The Lord Advocate and the Crown Office were told what was expected of them: bluntly, to allow special branch to take anything and everything from BBC Scotland. Lord Cameron of Lochbroom, a good lawyer known for his good works in relation to the heritage of Edinburgh and other worthwhile causes, and brought into the Government for his personal virtues and legal reputation, was confronted with an appalling dilemma—whether to defy his Prime Minister's wishes—
§ Mr. Forth
On a point of order, Mr. Deputy Speaker. A moment ago, the hon. Member for Linlithgow (Mr. Dalyell) referred, in defending the relevance of his comments, to article 10 of the convention. Will he explain to you and to the House what relevance that article has to the personal accusations that he is making and the detailed discussion of matters that do not remotely relate to the Bill?
§ Mr. Deputy Speaker
Order. I remind the hon. Gentleman and the House that many hon. Members wish to speak. Those who are fortunate to be called must relate their remarks to the Bill.
§ Mr. Dalyell
Freedom of expression concerns very much the behaviour of the Prime Minister.
On Wednesday 4 February, the Lord Advocate made a statement denying ministerial involvement. We could all rest assured, he said, that he knew what his duty was.
§ Mr. Richard Holt (Langbaurgh)
On a point of order, Mr. Deputy Speaker. Will you rule whether freedom of expression means that any hon. Member may speak on any subject at any time irrespective of what we are debating?
§ Mr. Dalyell
We need this Human Rights Bill so that we are protected from Sir Robert Armstrong's definition of the truth. On this, the Lord Advocate may be on terra firma. One of my major complaints is that Ministers were bypassed. This is where the Bill comes in. "Guidance" came from Mr. Bernard Sheldon and Downing street. For the Prime Minister to claim that massive entry to BBC Glasgow was purely a police matter is equivalent to a claim—
§ Mr. Deputy Speaker
Hon. Members are allowed to refer to copious notes, but I remind the hon. Member for Linlithgow to take note of what I said. I have not heard him refer to the Bill for some time.
§ Mr. Dalyell
This matter concerns freedom of expression. It is equivalent to a claim by Henry II that the murder of Saint Thomas a Becket on his own altar at Canterbury waspurely a matter for the Four Knights.Just as the source of the decision to do away with Becket was royal tantrum, so the source of the rummaging of the BBC is prime ministerial tantrum. This Bill would defend us from prime ministerial tantrum. "Who will rid me of Duncan Campbell and all his programmes?" Surrounded as she is by thugs of her choice in Downing street, it is scarcely surprising that the wretched Lord Advocate and his officials were left in no doubt about what, to their distaste, they were told was their duty. Prime ministerial vengeance is no basis for a prosecution policy.
Of course, Conservative Members can feign pain. They may genuinely have no inkling of contact between Downing street and the Crown Office. But they can hardly be surprised. This is a rerun of the Solicitor-General's letter on Westland a year ago. I am glad that the right hon. and learned Member for Richmond, Yorks (Mr. Brittan), to whom I am deeply sympathetic, is in his place. In January 1986 the Attorney-General and the Solicitor-General threatened resignation on a matter of principle and were dissuaded only when it was put to them that such an action by Law Officers—who are far more important than the Secretaries of State for Defence and for Trade and Industry in this context—might topple the Government. On that occasion, they were abused and bypassed by their Prime Minister. They were given not the slightest indication of the use to which Mr. Bernard Ingham, via Miss Collette Bowe, who has locked away her version of events in a bank vault—a strange thing to do if they 1251 coincide with the Government's version of events—would put the Solicitor-General's letter. Again the Law Officers were bypassed by the Prime Minister.
§ Mr. Deputy Speaker
Order. The hon. Gentleman must explain to me and to the House how he relates his remarks to the Bill that we are discussing.
§ Mr. Dalyell
If this Bill had been passed, the whole question of the BBC in Glasgow and what happened previously, given the Prime Minister's style of operation, would have been different.
Was the raid by the police postponed from Friday 30 January because Special Branch knew that the Secretary of State for Scotland was due to go to Queen Margaret drive for a radio interview?
The whole BBC case is about politics and not about national security, and that is where the Bill comes into it. The raid was directed from London and by Superintendent Hilton Cole. One might ask what Mr. Ingham had to do with legal decisions in Scotland. A justified answer would be: about as much as the Prime Minister's press officer had to do with the private letter from the Solicitor-General with regard to Westland and the then Defence Secretary within minutes of it being received in Downing street. We know that it was before 6 January 1986 that the Prime Minister instigated the Solicitor-General's letter and left everything thereafer to her henchman, Bernard Ingham. I hope that this is an anti-Ingham Bill.
§ Mr. Deputy Speaker
I ask the hon. Gentleman to consider whether he is being fair to the House. He has an Adjournment debate today relating to the Official Secrets Act. I hope that he will bear that in mind.
§ Mr. Nicholas Baker (Dorset, North)
Further to your remarks, M r. Deputy Speaker, we are hearing a discussion about how the Government take their decisions. That has nothing to do with the right to free expression under the Bill or with the Second Reading of the Bill.
§ Mr. Deputy Speaker
I have appealed to the sense of fairness of the hon. Member for Linlithgow. He almost always responds to the Chair on that ground and I ask him again to remember that he has an Adjournment debate today.
§ Mr. Dalyell
We are dealing with protection from the Prime Minister, the most powerful "man" in British politics. When pressed, she blamed misunderstandings between civil servants. When pressed by the Attorney-General with the threat of resignation, she reluctantly set up an inquiry into that which she knew full well she herself had instigated: wasting police time, as the Liberal Leader put it. It was wasting time.
In 24 years as an MP, I have seen many letters of resignation—some curt, some acrimonious, others sad and affectionate, as between old political friends. Never has there been anything like the negotiated correspondence between this Prime Minister and her erstwhile Trade and Industry Secretary. I quote from the Daily Telegraph:You have been a steadfast exponent of Government policy and I have admired the dedication and loyalty with which you have carried out your duties. I hope that it will not be long before your return to high office to continue your Ministerial career.1252 How could she say that, if the whole story was of the right hon. and learned Member for Richmond, Yorks having deceived his senior Civil Servants, his Cabinet colleagues and his Prime Minister for 14 whole days.
How could the Prime Minister say that if the whole story—
§ Mr. Marlow
On a point of order, Mr. Deputy Speaker. The hon. Gentleman maintains that he is relating his remarks to freedom of expression. It seems to us on the Government side that what he is seeking is freedom of innuendo. Is there any way in which you can protect the House from that? Can I also ask whether you would allow any other hon. Member to abuse the rules of procedure in the same way as the hon. Gentleman?
§ Mr. Deputy Speaker
I have the impression that the hon. Gentleman is coming to the end of his speech.
§ Mr. Dalyell
The Bill is about freedom from scapegoat politics. I have had no previous discussion with the right hon. and learned Member for Richmond, Yorks. but, speaking bluntly, I think he has been treated extremely badly. If the story about having deceived his civil servants and his Cabinet colleagues and his Prime Minister for 14 days is true, the Prime Minister could hardly have written him such a letter. We are dealing with the breakdown of trust in the public life of Britain. Many times bitten, twice shy of believing this Prime Minister. After the Ponting trial and what emerged there and after the untruths—
§ Mr. Deputy Speaker
Order. I have already explained on many occasions to the hon. Gentleman that he must relate his remarks to the Bill. I can see no relevance to the Bill in what he is saying. I ask the hon. Gentleman yet again to respect the ruling that I have given. If he does not I shall have to ask him to resume his seat.
§ Mr. Dalyell
The protection of truth and the protection of the position of the Law Officers will be greatly helped by this Bill. Over Peter Wright's prosecution, as over Westland, the Prime Minister has treated her Law Officers, the holders of great offices of state, as the most inconsequential of junior ministers. She bypassed them on matters of central concern and relied instead on shadowy and sinister figures like Mr. Bernard Sheldon. In the case to which my hon. Friend the Member for Great Grimsby (Mr. Mitchell) spoke, the Scottish Law Officers were treated no better. The Crown Office in Edinburgh is no ivory tower. The civil servants there are of a high quality and are politically sensitive. The Solicitor-General is a parliamentary colleague of whom I and many of my hon. Friends think well in spite of our political differences. The Lord Advocate is a man of many qualities. Just as she treated the right hon. and learned Member for Richmond, Yorks over Westland, the right hon. Member for Cambridgeshire, South-East (Mr. Pym) over the Falklands, the right hon. Member for Guildford (Mr. Howell) over the miners in 1981, she has left her Law Officers carrying the can. This is a Teflon Prime Minister, a Prime Minister who above all makes sure that nothing will stick to her. The BBC raises the Prime Minister's Teflon characteristics.
The Bill will be a great help. The Prime Minister operates through the instigation of improper acts. She makes sure that they are done through Mr. Ingham and others. To suggest that she had no inkling of the police visit to the BBC in Glasgow is make-believe. One needs a 1253 long spoon when dealing with Downing street. The Crown Office should realise the need for a long spoon. The Prime Minister and her office behaved with extreme economy towards the truth. They take refuge in philologically clever language. What is meant by "to consult" and "to inform"? The issue is about our protection from the highest officers of government and their misbehaviour. In these cases we see a bypass operation of Parliament, a parliamentary bypass operation. Together with many hon. Members I passionately want to see responsibility and decisions come back to this House. Decisions should not be taken by unelected people operating under Prime Ministerial insinuation and over whom we have no control. That is why the Bill should have a Second Reading.
§ Mr. Fred Silvester (Manchester, Withington)
The hon. Member for Linlithgow (Mr. Dalyell) is a sufficiently experienced Member of the House to know that he has stayed just within the bounds of order. He knows that he has seriously abused the way in which this debate was set up. He has sought to put on the record things which no doubt will get a good press. However, they have little to do with this Bill.
My hon. and learned Friend the Member for Fylde (Sir E. Gardner) deserves congratulations on getting this matter to the Floor of the House with sufficient time for a good debate and a vote. It would be nice for him if, in his last year in the House, he got his Bill through. However, I hope that he does not. I am sure that it will get a Second Reading, given the extensive lobbying and advertising that has gone on. If he does not get 200 votes to four on the final vote, he should be disappointed.
The European convention seems to be the basis on which a number of hon. Members have argued in favour of the Bill. The Bill incorporates the European convention as the Bill of Rights that would apply in the United Kingdom. The justification for that is slim. The convention has never been debated in the House or voted on. In 1950, it was debated on a take-note motion before it was completed, and no vote was taken. The House then went on to discuss the meat content of sausages. Since then, the matter has not come before the House at all.
The Royal prerogative and the Ponsonby rules, which apply to treaties, ensure that there is no need for the matter to be raised in the House. My right hon. and learned Friend the Member for Hexham (Mr. Rippon) said that we were the first to ratify the convention. Of course we were. In every other country, the parliament had to discuss the matter and vote on it. Here we simply do it on the nod.
We are asked to support the Bill because we are bound by a convention which Parliament has never discussed or accepted. It seems that the options which my hon. and learned Friend the Member for Fylde presented to us were that we could accept the Bill, which would enable us not to go to Strasbourg, or to renege on the convention. There is another way, which I hope in due course a Government will have the courage to pursue. It is to cease to adhere to articles 25 and 46.
Article 25 permits individual petition to Strasbourg and article 46 makes compulsory the jurisdiction of the court. They were added by the then Prime Minister, Harold Wilson, in 1966. Before then, British Governments of all complexions felt that the convention served a useful 1254 purpose but that there was no requirement for it to be adopted internally as part of our domestic law or to give citizens a right to appeal to Strasbourg. That seems right. A wrong decision was made in 1966. That decision also has not been referred to the House. Due to the assiduity of my right hon. Friend the Member for Worthing (Mr. Higgins), it was raised on the Floor of the House during Question Time, but, since then, at two, three or five-yearly intervals, the matter has been dealt with by written answer.
This massive change in the British constitution—it is the largest since the war—has been done entirely by Executive order. I feel no moral or legal obligation to support the Bill on the grounds that it stops the journey to Strasbourg. There are other and more soundly based means of doing that.
The 1966 decision submitted Parliament to the jurisdiction of a panel of overseas judges. The Bill proposes that we should submit Parliament to a panel of English judges. That is somewhat more satisfactory, but it is not a sufficient argument. We must judge this matter entirely on the merits of the Bill and put the Strasbourg argument to one side. We have to face the fact that we have permitted the situation to develop without any debate or vote. I still cannot understand how the Commons, which huffs and puffs at the slightest prospect of constitutional change, has allowed this to go through with no voice and no vote. That has done Parliament no honour.
I hope that the Bill's sponsors will retain at least one tradition of the House—that matters of constitutional moment are taken in a Committee of the whole House and not sent upstairs.
As my right hon. and learned Friend the Member for Southport (Sir I. Percival) said, the Bill will not release us from the trap. I do not believe that any of the sponsors have recommended that the articles which require us to submit to the Strasbourg court should be repealed. There will, therefore, always lie an appeal against whatever decision is made by English judges to international judges. That does not seem to be in any doubt. We have to be certain about how the appeal will operate.
Much play has been made about The Sunday Times case. That case attracted a lot of attention because of the emotional overtones because it dealt with children deformed by the Thalidomide drug. If we take away those overtones, what we were faced with was a decision of this kind. The judges, to whom my hon. and learned Friend's Bill would transfer these rights—in our case, the House of Lords—unanimously made a decision in respect of contempt of court. They did not make that decision in an attempt to put down the citizen. They had to balance two freedoms. There is the right to free expression, but there is also the right of a fair trial and not to have that trial influenced by outside events. Those are two very important principles which can be honourably argued by judges.
The House of Lords argued the Thalidomide case through and made their decision. My right hon. Friend the Member for Hexham said that if we had the Bill the judges in Strasbourg would know what the English judges felt, and therefore we would not be overruled. In the Thalidomide case they knew perfectly well what the English judges felt, but nevertheless they overruled us.
That decision in Strasbourg was eventually decided by 11 votes to nine votes. It was a very narrow vote, and it should be pointed out that two of those 11 judges in the majority were appointees of countries which did not accept 1255 the right of individual petition to the European court. We have there, not a great trial of freedom of expression, but a narrow balance of argument taken by judges of standing and legitimately argued. The case is further complicated by the fact that Lord Diplock has changed the law further since we passed the Contempt of Court Act.
The Strasbourg court overruled a unanimous decision of the court to which my hon. and learned Friend's Bill would refer; not on the grounds that it exceeded its powers, not on the grounds that it was unreasonable, not on the grounds that it was not made in good faith, not on the grounds that it was uncertain or arbitrary. But on the grounds that it was "unnecessary".
Lord McCluskey, who has been quoted several times, is right when he said:The case is a telling example of how the interpretation of vaguely worded rights can lead different judges to arrive at novel and different conclusions as to the character and effect of public interest argument.
§ Mr. Rippon
Would my hon. Friend agree that judges often disagree, and in many cases a decision is taken by the House of Lords on a fair majority of one?
§ Mr. Silvester
I do not dispute that. The point at issue is whether—if my hon. and learned Friend's Bill is carried through and we have a decision, unanimous or otherwise in the House of Lords—the right of appeal will still lie to Strasbourg. This case clearly demonstrates that the right of appeal does so lie.
My hon. and learned Friend's Bill, unlike the convention, has been before the House. It has been mentioned a number of times that it has been before another place, but it has been before this House. My right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan), almost exactly nine years ago to the day, was proposing a Bill of Rights in these terms, which was to be introduced into Scotland. It is of minor amusement that five of the sponsors of the present Bill voted against it on that occasion. I will not make any point of that. It was presumably because it applied to Scotland only. However, the fact is that they felt it was unsatisfactory. On that occasion it was defeated by 255 votes to 215 votes.
More importantly, the House of Lords Select Committee, which considered this matter in detail, was almost equally divided on whether we should have such a Bill. I doubt, therefore, whether we shall gain any further benefit by having a Select Committee or any other committee, —which I understand is proposed in some quarters—to consider the matter. At issue are not the finer points of whether this or that right should be included but the essential principle of whether we should go down this road at all. That principle should be decided on Second Reading.
I do not want to consider at length the question of rights in general, but the hon. Member for Great Grimsby (Mr. Mitchell) spoke at great length on the importance of supporting rights. The trouble with such phrases is that everyone has to agree with them. They are like motherhood and apple pie—one cannot possibly go wrong. To stand up and say that one is against human rights is like saying that one is against the whole principle for which Western democracy stands. If one says that one is not for the Bill, people conclude that one is against human rights and, therefore, on the side of the devil.
§ Mr. Silvester
I am not accusing the hon. Gentleman of that, but it is a danger.
The hon. Member for Great Grimsby showed another danger. He said that, if he were drafting the Bill, he would have done it differently. That is interesting. He cited the example of New Zealand. Exactly the same problem was raised in the Council of Europe when the convention was first set up. Where is the limit on rights? Do they include economic and housing rights and the right to work—all those rights that are necessarily matters of argument and debate? It is not easy to determine what we mean by "rights". We may say, "We mean civil rights." But we then say, "That is a difficult concept. We mean the civil right that Maxwell Fyfe and his friends put in the convention in 1949 and 1950." But even that is not as simple as it seems.
I refer hon. Members to the Lithgow case. My right hon. and learned Friend the Member for Hexham has always taken a particular interest in that case. In the early days, it was set out as a case in which the individuals' rights of property were being subverted by the state. Various shareholders claimed that they had received inadequate compensation following nationalisation. They went to Strasbourg, and Strasbourg turned them down. For the court it became a matter of balancing economic and social conditions and economic and social rights with the civil right which was claimed by Lithgow and his friends. I understand that Sir Willaim Lithgow was quoted as saying,"It is now bye-bye to all that privatisation." He may have been right. That is not a legal or civil right matter. It is a policy matter. Even when one considers a limited civil right, one quickly moves into matters of economic and political concern.
§ Mr. Rippon
Does my hon. Friend agree that, whether it was right or wrong on the merits of the case, it would have been much better if a British citizen had had the right of immediate recourse to a British court so that we, too, had had the benefit of the views of a British court? Perhaps the case would have been disposed of there.
§ Mr. Silvester
That follows, of course, from my right hon. and learned Friend's position. But I think—this is purely my view—that the people involved in that case would have done better to pressurise Members of Parliament to raise the subject. Once the shareholders went to Strasbourg, they more or less forced the Government to defend their position at a time when many of us felt in our hearts that it would have been better to have given greater compensation.
We are continually faced with the problem of whether rights are better defended by adopting a Bill of Rights, whether in a convention or in this legislation.
I shall not go on much longer, Mr. Deputy Speaker, but I should like to make two or three points. Why are we so motivated towards this legislation? I remember that in 1976 the then Lord Chancellor produced a booklet on elective dictatorship. In my view, that phrase did us great harm, because this country is not an elective dictatorship, and will not become one while Parliament is elected. In that pamphlet, the Lord Chancellor encapsulated the fear of several of my hon. Friends. He stated that Parliament had not abused its powers but that it might. However, he could produce no evidence that things were falling down about our ears and that our freedoms were being removed .
The Lord Chancellor was fixed on the question of parliamentary sovereignty and was concerned about the 1257 way in which this House works. God knows, we all know how ineffective it is in many ways. However, he was fixed on that issue and felt that he should do something about it. I remind the House that his solution was a written constitution, of which a Bill of Rights was only a part.
It is a curious argument to say that we should adopt a radical change in our constitution on the hypothesis that evil may come, but without any evidence that it has. The elective dictatorship could only come about if all the existing institutions that preserve our freedoms suddenly collapsed about us. However, I see no evidence of that. Where is the evidence that the press is to be silenced, that business is to be supine, that Parliament is to become subservient, or that the electorate will be permanently fooled? Why are we suddenly plunged into the position of feeling that in panic we must change our constitution because of an evil that is not yet with us?
I refer back to the case that I raised with my hon. and learned Friend the Member for Fylde, because I wish to consider whether we are exaggerating, when we say that we are faced with a situation in which we are giving judges the power to overrule Parliament. With respect to my hon. and learned Friend, he sidestepped the issue.
In advertising, we use the term "weasel". That refers to something that appears on the face of it to be absolutely 100 per cent. accurate, of which one knows the meaning and which one can justify. However, we all know that its intent and effect are quite different. In this case, the "weasel" is the belief that what Parliament does, it can undo. Therefore, the sovereignty of Parliament remains inviolate, but we know that that is not how constitutions operate. My hon. and learned Friend who introduced the Bill and those hon. Members who support it do so precisely because they believe and intend that the Bill of Rights should because that is the whole purpose of the natural law on which it is based, to be able to override the—
§ Sir Edward Gardner
I have listened with great respect to my hon. Friend, but he must not mislead himself or the House about the aim of my Bill. I have already said, but shall repeat again now for the third or fourth time, that it seeks to incorporate into British law, the convention on human rights. That is its simple aim and purpose.
§ Mr. Silvester
Of course, I accept that. However, I am not misleading myself and am certainly not trying to mislead the House. This simple Bill, if that is how my hon. and learned Friend defines it, is nevertheless a Bill that imposes upon the House, as the convention has already imposed on the House, a judicial control over what the House can do.
§ Mr. Silvester
My hon. and learned Friend shakes his head. Perhaps I was overlong in my intervention on the Tyrer case, but my hon. and learned Friend did not answer it. That was a clear case in which Parliament took one view, the court took another, and the court's view prevailed. There is no doubt about that. If in time we have a Bill of Rights, precedents, habits and constitutional practices will inevitably develop which will ensure that this House is eventually regarded as subsidiary.
The case is further complicated. The House will remember vividly how it was put in an embarrassing and 1258 imposssible position on the question of corporal punishment in schools. First, we had the pantomime of having children who could and could not be caned in the same class and then—I make no complaint about this—some of my hon. Friends decided that they had to vote for the change in corporal punishment, not on the merits of the case, but to bring us in line with the European court's ruling. There is no doubt that that is the object of the exercise. It may take time before it is fulfilled, but that is the end of this process.
Finally, judges and those who speak in favour of this measure should consider what is said about the politicisation—a horrid word—of judges. The facts are there for all to see. The experience of the United States is often cited in this regard. On every occasion when the President has had power to intervene he has used that power to change the political complexion of the court. He has done so, not because he is a wicked man, but because he must. It is not possible to allow the Supreme Court not to approve the New Deal or to continue to preside over racial inequalities, as it has done for decades. Therefore, the politicians change the complexion of the court.
Those who argue in favour of the Bill had better beware that in future Governments will not only be tempted to inspect the political and judicial claim of candidates for office but will have a duty to do so.
§ Mr. Andrew F Bennett (Denton and Reddish)
I, too, congratulate the hon. and learned Member for Fylde (Sir E Gardner) on choosing this Bill. He has done a great service to the country and the House in achieving an effective public debate on the issue. However, I would prefer it if, when the House has finished debating the measure—I hope that that will be in Committee—we do not pass it into legislation at this stage, because we have not fully explored the many problems that a Bill of Rights raises.
I have three major objections. The Bill will encourage the House to abdicate its rights and duties further than it has done in recent years. We have not spent long enough exploring the fact that in many areas rights are not absolute—the convention itself sets out boldly most of the rights, but follows them up with qualifications and in many areas one individual's so-called right imposes a restriction on another individual. Finally if we enforce an Act of Rights, as it will become, through the courts, we must have a major reform of our courts.
Although we claim that everybody has equal access to the courts, in practice that is not the case. The courts are easily available to the rich, the articulate and those who can find their way around society, but for many people they are not easily accessible. So long as the courts enforce such an Act and the present system of legal expenses and so on remains, we shall confer rights only on a certain group, not on the whole of society.
To return to the question of the House relinquishing powers, it is ironic that we are discussing a Bill of Rights when recently the House has had many opportunities to enforce particular rights in detail and in practice. It was unfortunate that, in the last Parliament, the Freedom of Information Bill failed to attract 100 supporters to ensure that the debate could continue. I should have thought that it would have been far better for the House to assert itself and pass that legislation. This Parliament has passed data protection legislation that, in my view, is virtually 1259 worthless. It does not enforce individual rights of privacy. Of course, we imposed the Police and Criminal Evidence Act 1983, which, again, has considerable shortcomings.
If we were all that concerned about rights, would it not have been better for us to assert ourselves and insist, as a House of Commons, that those rights be enshrined in legislation, rather than leave it almost to the very end of the Parliament to say that we must come along with a blanket measure—a Bill of Rights—that may put right some of the omissions and errors? The House will be tempted to say, "We have an Act of Rights, so we do not need to concern ourselves with particular bits of legislation." It will be only too easy for us to pass Bills that give greater powers to the police or to the Executive. We can always say that the Act of Rights will step in. Hon. Members will be less diligent—they have not been all that good up till now—in asserting rights when they deal with individual pieces of legislation. It would be far better for us to act in the spirit of the European convention, but insist that we put it into our own detailed legislation.
If we give up our powers, we shall hand them to judges. I am amazed at the number of people who have such great confidence in judges, particularly in view of the sentences imposed this week in the rape case. The judges certainly demonstrated that they are not particularly attuned to the population at large. The more we hand over to judges the duty to take political decisions—in many cases it is a matter of balancing one right against another—the more we shall insist that judges become politically accountable. My hon. Friend the Member for Great Grimsby (Mr. Mitchell) welcomed such a move because it will educate judges. I do not think that judges will welcome the fact that they will have increasingly to make political judgments. I certainly would not welcome asking them to make political judgments. They are appointees, not people who must face the problem of getting re-elected if they make wrong decisions. I am sure that few people would support an elected judiciary.
§ Mr. Alex Carlile (Montgomery)
Will the hon. Gentleman tell the House what is political about having to decide whether someone is subjected to torture or inhuman or degrading treatment? What is political about having to decide whether a person has liberty or security? What is political about deciding whether a person's right to life is protected by law? Indeed, what is political about asking judges to decide these fundamental individuals freedoms?
§ Mr. Bennett
I disagree with the hon. and learned Gentleman. One cannot define these matters as fundamental. The hon. and learned Gentleman picked out only one or two.
§ Mr. Bennett
I have looked at it. The hon. and learned Gentleman should read it. The right to life is mentioned, but we qualify it by giving the state the right to take it away in certain circumstances. It is an absolute, it is there, yet we qualify it. All the way through, there is continual qualification. Different opinions have been voiced in the cases that have been argued in the House, particularly the principle of the closed shop. In the end, it is a political judgment. It is not an absolute right that we can define.
The more we draw judges into political matters, the more we shall create problems for them in terms of the 1260 general public's attitude to and respect for the judiciary. Most judges do not want to be political arbiters. We should examine the cases that have been made for the use of the convention and the fact that it should have been in our law rather than be removed, particularly the Thalidomide case. That case illustrated the fact that this House had abdicated its responsibilities. If hon. Members had asserted themselves at that time, there would have been a much speedier remedy. Instead, the case went through the courts and took a very long time. The same applies to the telephone-tapping incidents, then and now. There is a remedy if the House asserts itself, but its record has to be called into question.
I am delighted that we have abolished corporal punishment, but that is no great triumph for the convention. It was a political judgment that corporal punishment should be abolished. There is no absolute right that people should not be subjected to corporal punishment. The court did not rule that everybody has a fundamental right not to be subjected to corporal punishment. It said that parents could exercise that choice. I believe that it should have gone further and said that children ought to be able to exercise that choice.
The court did not say that corporal punishment should not be administered. It said only that it should not be administered if the individual concerned objected. In the end, the House decided not to introduce a system under which some could choose corporal punishment while others could choose not to have it. We said that corporal punishment ought to be abolished.
The Bill will not help over closed shops. When the industrial relations legislation was discussed in the House, we argued about whether there should be a right to belong to a trade union and whether there should be a right for those who belong to trade unions not to work with certain people. If lawyers were to accept that there is an absolute right not to belong to a closed shop, I should accept it too, but lawyers insist that there must be a closed shop and that only those with legal qualifications should be able to plead in the courts. I understand the logic of that argument—lawyers want to work with those with certain professional standards and training—but I believe that that principle could be extended.
We were not greatly served by the judgment of the European Court of Human Rights, because it made a political judgment. It is not enshrined for ever that a new Bill cannot be introduced to deal with the closed shop. Such a Bill could be introduced. We could say that, notwithstanding the Bill of Rights, certain principles ought to apply. A weaker provision could also be introduced. We could say that, to avoid doubt, a particular provision should take precedence over the Bill of Rights. The closed shop shows that one person's rights may not necessarily be compatible with the rights of somebody else.
I wanted to participate in the debate and the vote. Also, I want to carry out my responsibilities to my constituents this evening at my advice bureau. Normally on Fridays I can fly to Manchester airport with no difficulty and fulfil those two responsibilities. However, there is a strike by firemen at Manchester airport. I believe that they have an absolute right to be able to strike. I cannot legitimately argue that they should not be able to strike, but their rights conflict with mine. That illustrates the problems that can be caused by absolute rights.
The Murdoch newspaper dispute at Wapping illustrates three rights. Unfortunately, however much wisdom judges 1261 may have, they cannot ensure that all three rights will be enjoyed by everybody. There is the right to publish, the right to picket and to protest and the right of the people who live in the area to go peacefully about their business. On many occasions those rights come into conflict. The size of a demonstration makes it difficult for lorries to leave the plant in a way that causes no problems, or the size of a demonstration prevents the lorries from leaving. At the moment, they come out regularly at speeds considerably in excess of 30 miles an hour and put at risk the life and limb of the people in the area.
Although it has been claimed that the Bill gives absolute rights, it does nothing about the right to work, which is an absolute and fundamental right. Some 50 per cent. of those between the ages of 20 and 30 in the Brinnington ward in my constituency are unemployed, and many of the Bill's so-called liberal rights to help them are not as important as the right to a job.
There is a fundamental right to life, but we all know that many people who need kidney dialysis do not receive it. As a result of economic pressures and democratic decisions made by the Government, some people will be denied the hospital treatment they need. I can give other examples of how, after setting out a right, we deny it.
It would be attractive if the legislation conferred the right to nursery education or the right for mature students to get into higher education or the right for a whole series of other educational opportunities. However, the only possible right in educational terms that the Bill confers is the right to buy privilege in education. It does not confer the right to free state education.
There is then the problem of homelessness. It is a fundamental right that people should have a decent home and a decent roof over their heads, but the legislation does nothing to help.
The legislation confers only a selective set of rights and makes choices between rights, and hands over to the judges the duty to make choices. This brings me to access to the courts. It is distressing that substantial numbers of people find it difficult to get access to the courts, but the promoters of the legislation say that its big advantage is that it is cheaper to get to the British courts than to the European Court. However, the cheapest thing for most people is to be able to read the law in statute without the need of a judgment by a judge to tell them what is right or wrong.
The advantage of the House is that we legislate in detail on, for example, freedom of information, police or criminal evidence. The more we leave it to a general declaration, the more it becomes a matter of the judgment of the courts. Instead of the certainty that will avoid enthusiasm for going to the courts, there is doubt. I understand that lawyers love doubt because it keeps them in business, but it is not in the best interests of the general public. They want detailed legislation that gives them certainty. The House would be better employed in making decisions giving them certainty than in giving broad sweeping statements that will depend upon judges making choices of how they interpret the law.
§ Mr. Alex Carlile
The hon. Gentleman is the distinguished Chairman of the Joint Committee on Statutory Instruments. Does he not agree that statutory instruments, produced at least under the jurisdiction of the 1262 House, show that we are incapable of producing legislation that people understand? Is he really saying that the statutory instruments that pass through his hands on the subject of, say, social security, have any chance of being understood by the ordinary man in the street? Does he not agree with my right hon. Friend the Member for Tweeddale, Ettrick and Lauderdale (Mr. Steel) that the increase in the number of cases going for judicial review is clear evidence of the fact that we need a Bill of Rights?
§ Mr. Bennett
I do not see that a Bill of Rights gives clarity. We can say, "Let us have no legislation and leave it to the judges to make choices." I agree that in some sectors we are not making the law clear, and that we should be spending more time making that law clear, but it is important that we should be doing it rather than leaving it to people to go to court. Large numbers of people do not have the resources to do that. None of those involved in the judgments on social security in the past two or three years have been able to go to the courts to obtain a remedy. They have had to rely almost entirely on particular campaigning groups to finance the challenges they have made. We should be putting much more emphasis on getting certainty into our own legislation, rather than relying on the courts to enforce it.
Although we can all illustrate the many instances where statutory instruments are obscure and difficult to follow, considering the total volume of legislation produced in this country, the number of cases where there has been a judicial review and where the law is not clear and certain are more limited.
I argue strongly that, if one wants to impose a Bill of Rights, one has to guarantee that anyone who wants to bring a case to court using the powers that they would claim in the Bill, must have free legal aid to help them to bring that case. There must not be the legal aid committees which make choices as to who can bring a case. I accept that that may be an expensive process, but I believe firmly that, if one is going to introduce a Bill of Rights, everyone must have equal access to the courts to enforce it.
I find it annoying when I go to a Minister to make representations on behalf of my constituents, only to be told, "There is nothing that I can do about that, because it is up to the courts or a tribunal to provide a remedy." It is annoying when I have a detailed and difficult case involving my constituents and I want to refer it to the ombudsman and he says, "Your constituent has a theoretical remedy by taking it through the courts or to a tribunal. I cannot investigate." There is a danger that the Bill of Rights may well become an excuse for people to say that certain matters should not be resolved in the House but that the individual involved should take it outside and pursue it through the courts.
I believe that the House should be asserting its rights. It should be much more welcoming than it was this morning to my hon. Friend the Member for Linlithgow (Mr. Dalyell) when he wanted to pursue matters here. It is the House's duty to resolve injustice and to see that civil rights are enforced. It would be a poor day for Britain if we abdicated our rights because we say that we are not able or prepared to exercise them, and hand them over to judges who are not in the most favourable position to make the sort of judgments that we ought to he making.
§ Mr. Leon Brittan (Richmond, Yorks)
I should like to join the many hon. Members who have congratulated my 1263 hon. and learned Friend the Member for Fylde (Sir E. Gardner) on his success in the ballot, his choice of subject and the admirable way in which he has presented it. We are not here to decide whether we as a country should enjoy the benefit of a Bill of Rights. We are not deciding whether we should enjoy the protection of the European convention. That was decided when we signed the convention. We are not deciding whether the obligation to comply with that convention should just be an obligation in international law, enforceable only by complaint on the part of one Government against another. That was decided when we conferred the right of individual petition, the right for individuals to take cases to the Commission and, if necessary, to the court at Strasbourg.
In the 20 years since that right was confirmed, we have had many cases that have proved uncomfortable for Governments of different political complexions and which have proved awkward and politically embarrassing in a variety of directions, sometimes attracting some people and sometimes attracting others. The concept of joining like-minded European nations in laying down certain fundamental rights and providing machinery for protecting them, has proved so popular and effective in this country that successive Governments have renewed the rights of individual petition, in spite of all the political and administrative difficulties that it has undoubtedly caused.
For half a generation and more we have been ready, if necessary, to change our law or policy if it has been found by the court at Strasbourg to fall short of the requirements of the convention. The fact is that although some hon. Members—I respect their opinion—regret the existence of the right of individual petition, there is not a substantial body of opinion today that calls for the abolition of that right or for abrogation of the convention in its entirety.
It is true that Parliament has not had occasion to debate those matters, but the reason is not some sleight of hand on the part of the Executive or lack of procedural opportunities to do so; it is the fact that the position with the right of individual petition, for all the difficulties that it has caused, is generally acceptable to the country and to Parliament. Of course, in theory it would be open to this or a future Parliament to take either of the two steps that I have mentioned — the abolition of the right of individual petition or the abrogation of the convention — but because of the general acceptability of the jurisprudence of the Commission and the court over the best part of a generation, in practice we have undergone a major constitutional sea change, although it may not have been widely or fully appreciated as such.
We already have a Bill of Rights and an established means of enforcing it. What the present Bill is about is whether we should take the substantial furthr step relating to the means of enforcing the convention, by formally incorporating it into our domestic law. If that is the issue, much of the wider argument about the value and importance of a Bill of Rights that we have seen, particularly in the media in recent days, is not relevant to the Bill. I deplore some of the more extravagant claims that have been made for such legislation, and in that respect I agree with my right hon. and learned Friend for Southport (Sir I. Percival). It would be utterly misleading to give the country, which may not be as well informed about those matters as the House, the impression that the Bill will convey new rights or give new protections against real or imagined acts of oppression on the part of the state.
1264 In particular, the attempt to drag the Bill into the arguments about current political controversies is unwise and mischievous. It is unwise because it will alienate many Conservative Members who otherwise might be sympathetic to the Bill. It is mischievous because it seeks to make party political capital out of an issue on which progress can be made only on non-partisan basis.
However, in my view it is also not right to complain that the Bill should be opposed because it hands over power from Parliament to the judges. We did that when we conferred the right of individual petition. The only difference is that in the Bill we are enabling British judges to play a part in interpreting the convention. Nobody has answered the simple and fundamental question: if judges are to be involved at all as they have been for 20 years, why should we have only Strasbourg judges and not British judges doing so? There is no answer to that question. To maintain the present position is, frankly, a piece of organised hypocrisy. It is saying, "Let us have the benefit of the convention in theory, but let us not have the full and effective means of giving it effect."
It is true that if one did what the Bill does, there would be a continued right of appeal to Strasbourg. British' judges would not have the last word. But I happen to believe that the Strasbourg court would show great respect for the British judges, who would have analysed the facts and applied the convention to British situations in a British context. It is far more likely that the convention would ultimately be interpreted in a way consistent with our own concepts if it first went through the rigorous winnowing process of British judicial interpretation. Those who say that the judges are incapable of deciding the wide social issues at which they would have to look if they were interpreting the convention seem to me to have ignored the history and evolution of judicial review.
I was a junior counsel in the case when we challenged the Labour Government's attempt to impose comprehensive education in the Tameside case. The issues could not have been more fundamental or controversial. Nonetheless, the courts of the land did not hesitate to take on these issues and make a firm view upon them. In that history of judicial review, we have had an increasing involvement of the courts in what are, frankly, matters of controversy. It is absurd to claim that the courts can deal with matters of judicial review in that way, but Strasbourg alone can consider the wider questions although we agree to submit to its jurisdiction if the European Court finds against us.
§ Mr. Cash
Does my right hon. and learned Friend agree that in this extremely important issue, which is pivotal to the whole question, there is a distinct difference between what is regarded in the Bill and the convention as being necessary in the context of a democratic society and what is reasonable? It is upon that question that many questions of interpretation will be decided. That is an important matter to which I would like my right hon. and learned Friend to address himself.
§ Mr. Brittan
That matter may arise in certain questions. It depends which article is being interpreted. The broad point that I want to make is that the wide issues of policy that the courts in this country have to consider are no more narrowly confined and no more technically legal than the kind of issues that come to Strasbourg in the last analysis.
On the other hand, it is disingenuous to pretend that if we pass this legislation it will make no substantial 1265 difference to what happens and will only save us the embarrassment of being at the top of the international league table of the number of cases taken to Strasbourg.
It would similarly be disingenuous to claim that the Bill would not fetter Parliament, because we could subsequently pass statutes which were in conflict with the provisions of the European convention. On that point, the position is unchanged from what has applied over the years with regard to the right of petition. The nominal right to pass legislation that is in conflict with the convention will remain ours. In that sense, parliamentary sovereignity will be unimpaired. Within a very short time, however, there will be a clear and well established self-denying ordinance, as part of our law and practice, that we do not pass legislation of that kind such that it would be almost inconceivable that a Government would say to the House, "Please pass this Bill, never mind that it is inconsistent with the European convention."
Candour and honesty require those of us who support the Bill to accept that that will happen. I believe that we should take that point head on and say that if Parliament is inhibited from taking away fundamental human rights by the existence of the convention, so much the better.
We should not ignore or underestimate the practical difference that the change would make to the Government and the very real problems that the Bill, in its present form, would give any Government in this country. Successive Governments have not simply been motivated by sheer bloody mindedness or obscurantism in being reluctant to bring forth legislation of this kind. Until now, if our practices have been found to be in breach of the convention, the finding occurs a long time afterwards and it is for the Government to enter into consultations and to decide, after considerable discussion, the appropriate way to rectify the breach in terms of the individual case and for the future. From practical experience, I can assure the House that there are many alternative ways, in almost every case, of dealing with that problem. That may involve compesation, a change of policy or legislation. None of that can happen overnight.
If a British court adjudicates, the consequences are very different from an adjudication by the European Court. Such an adjudication leaves time for a considered solution to the problem to be found. Normally, a British court has an immediate impact on the law.
I should mention another matter, if only to discount it. There is no doubt that, for Governments, it will be politically more embarrassing to be found in breach of the convention by a British court than by the Strasbourg court. Not only will the decision be made nearer the time when the act complained of occurred, but judges in Britain are figures of high prestige and the decision of the court cannot be dismissed as one made far away by people who are unfamiliar with our circumstances and our mores and, therefore, out of touch. We cannot say that it is an awful bore to have to accept those decisions. The immediacy of British judicial determination will be a political embarrassment. We should face up to that, but it is no reason for not implementing the convention.
§ Mr. Forth
Does my right hon. and learned Friend agree that if, as a result of this measure, there is a much greater demand on the English courts to settle such 1266 matters, it might lead to long delays in settling those matters here? His immediacy argument might not arise because the delays would be just as long.
§ Mr. Brittan
It is unlikely. There may be more business for the courts, but it is inconceivable that that business would not be dispatched more quickly than by the long process involved in going to Strasbourg.
§ Mr. Budgen
My right hon. and learned Friend talks about political embarrassment when the judges rule that legislation does not conform to the convention. But it is worse than that. It means that the House has a choice. Either it accepts that it is no longer a sovereign legislature under the Crown, or it undermines the authority of the judges by saying, "Thank you very much, but on this issue we disagree with you and we do not believe that you are the supreme authority on this."
§ Mr. Brittan
That is exactly the position of the House when the European court rules. Either we say, "We shall ignore the convention to which we are a party," or we accept that Parliament and the Government are obliged to find means within the law of complying with the convention. We have lived with that for the best part of a generation.
Trying to be candid about the matter and not asking the House to buy a pig in a poke, but to go into it accepting the consequences, I should say that practical and administrative problems will result from a sudden change of policy. We cannot change the administration of the prisons overnight, nor can we introduce overnight legislation on telephone interception that meets the requirements of national security and conforms with the convention. But those problems cannot be dismissed as a pretext for resisting change. The interception legislation which I introduced was necessarily intricate and complex, but it succeeded in achieving the balance of protecting national security while complying with the convention.
Those practical objections cannot be ignored, but they should not be an obstacle to the incorporation of the convention into British law. Perhaps the right course would be not to permit British courts to grant injunctions when the entitlement to an injunction is founded on the convention and, at least in some cases, to require the courts to grant a declaration only in the first instance which would not come into effect until the Government had, within a reasonable and specified time, introduced measures to remedy the breach to the satisfaction of the court. That would overcome the practical difficulties and enable the administrative problems to be resolved.
Those matters will require further consideration, but we should draw them to the attention of the House so that those who do not favour the proposal are not regarded as being mindless of the rights of individuals and are only concerned with good government. All of us should be concerned with good government. Against all of that, the advantages of giving the individual more immediate and effective protection and the logical indefensibility and international embarrassment arising from our present position, leave me in no doubt that the Bill is a major and justified step. I warmly commend it to the House.
§ The Solicitor-General (Sir Patrick Mayhew)
Not for the first time, my hon. and learned Friend the Member for Fylde (Sir E. Gardner) has rendered the House a signal 1267 service. His Bill gives rise to discussion of absorbing interest, one might say it is of perennial interest. He addressed himself to his Bill in a speech which was, if I may cite the words of the right hon. Gentleman the Leader of the Liberal party, lucid, charming and witty. I respectfully join in the grateful congratulations that have been showered upon him on his speech. My hon. and learned Friend and I are old personal and political friends and we are united in our objective of securing as best we may by law the underpinning of liberty. That can equally be described as the securing of fundamental freedoms and we are not divided in any way on that objective.
I am afraid that the House will not be surprised if I begin my argument with a platitude. The judiciary must be seen to be impartial. More especially, as far as practicable it must be kept free from political controversy. We must take great care not to propel judges into the political arena. However, that is what we would do if we asked them to take policy decisions of a nature that we ought properly to take ourselves and which under our present constitution we do take. We would increase that danger if we required or permitted them to alter or even reverse decisions taken by Parliament. For a long time I have felt that herein lies the key to the general issue that we are debating. Above all, it is the factor that shapes the Government's attitude to the Bill and which leads me to be unable, for reasons that I hope to develop, to commend the Bill to the House. I hope to show why that is my view and perhaps I will be forgiven for taking a little time to do that.
My hon. and learned Friend's speech did not deal with that aspect as thoroughly as I had hoped it would. Of course he did not overlook it. At the heart of the argument is that applying the convention calls for some highly political judgments. That point is often missed, but that is perfectly understandable because we focus, as no doubt do 70 per cent. of our fellow citizens, about whom we have heard, upon the general rights that are declared by the convention on human rights to belong to everyone. These are the right to respect for one's family, one's private life, and one's home and correspondence under article 8, the right to freedom of thought, conscience and religion and the right to freedom of peaceful assembly and so on.
These rights are noble declarations. To adopt the words of my hon. and learned Friend, the theme is one of grandeur. I hope that we shall never lose the ardour for enshrining and ensuring across all national frontiers the enjoyment of human rights that arose so soon after the end of the last war following revulsion from totalitarian regimes.
I strongly agree with my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan) that the debate is not about whether we are for or against the European convention on human rights, although people may take a stance on it. The issue does not turn on that. Much less notice is taken of the qualifications and restrictions to these generally expressed and noble rights, but they also are to be found in the convention in articles 8 to 11.
I shall take just one example from article 8 which, by way of qualification, speaks of the interests of national security, the interests of public safety, the interests of the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals and 1268 the protection of the rights and freedoms of others. The Bill would require our judges to make their own assessments of these matters.
Article 8 says that any one of those matters can justify a public authority interfering with the exercise of the right. It provides that there should be no interference by a public authority with the exercise of the right of a home, or a person's private lifeexcept 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.
§ Mr. Richard Ottaway (Nottingham, North)
Those are the very words which are to be found in section 10 of the Contempt of Court Act 1981. Why is it permissible to allow judges to interpret that section but not article 8?
§ The Solicitor-General
It is very dangerous to invite judges to apply their own assessment on what are essentially political matters. It is not that I do not trust the judges, for I trust them implicitly. It is not that I do not think that judges are able for, as has been said, they are the most able to be found in the world. It is that I fear what would happen to the public reputation for political impartiality of judges if that jurisdiction were extended to them and if that burden were imposed on them on so wide a scale.
§ Mr. Robert Maclennan (Caithness and Sutherland)
Will the Solicitor-General please address himself to the question asked by the hon. Member for Nottingham, North (Mr. Ottaway)? Is he not asserting that the Contempt of Court Act 1981 gives judges just the type of political power that we are talking about? If it was acceptable to the Government to do that then, why is the hon. and learned Gentleman baulking now?
§ The Solicitor-General
As I have said, I think it is very dangerous. To have done it once does not diminish the danger of doing it on a wide scale. That is quite a simple question, which I thought I had answered.
§ Mr. Robert Jackson (Wantage)
What reason do we have to believe that a Turkish or Icelandic judge sitting in Strasbourg is better qualified to make the type of judgment which the convention requires in a case arising out of the United Kingdom?
§ The Solicitor-General
He is no better qualified: entirely agree with that extremely interesting remark. The consequences of the court at Strasbourg exercising jurisdiction are very different under present arrangements from the consequences which would follow if the convention were incorporated in our domestic law.
§ Mr. Budgen
Article 2 of the first protocol seems to support the view which was put forward by Sir Harry Fisher before the last general election — that any legislation which abolished the right to private education would be in breach of that article. If the House of Lords held, after a general election, that legislation passed by this House abolishing private education was in breach of article 2, is it possible that that would enable the judiciary to be seen to be outside the political process and to retain its independence?
§ The Solicitor-General
My hon. Friend draws attention to the difficulties of importing into our domestic law a 1269 convention whose purpose, when it was first ratified, was to act as a marker, and is expressed, correspondingly, in general terms. A stronger point can be made from article 1 of that protocol, which I will come to in a moment.
I ask the House to consider the nature of that catalogue of concepts and objectives, of which I reminded the House a moment ago. Each and every one of those concepts—national security, the protection of morals and the protection of health—is politically controversial.
§ Sir Edward Gardner
I know that my right hon. and learned Friend has had many interventions, but this is a particular, precise and important point—the danger that my right hon. and learned Friend foresees if judges are given the opportunity of interpreting the convention. Would he not agree that, when judges construe Acts of Parliament, they look at the intention of Parliament in passing the legislation, but they also—this is important — have a duty to interpret the principle of the legislation, not the policy. That is all that they would be asked to do.
§ The Solicitor-General
That is a good principle of the construction of legislation by our courts, but what is the court to determine as to the policy of Parliament when it has, through my hon. and learned Friend's Bill, incorporated into domestic law articles that are so widely drawn as these? In the case of article 8, for example—but it is not alone in this respect—the right which it confers is subject to widely drawn and unspecified exceptions.
For example, we do not need reminding that what is necessary in the interests of national security is sometimes rather controversial. There are fierce, frequent and genuine disagreements as to national security and what the interests of national security need. What guidance, I ask my hon. and learned Friend—rhetorically, I hope at this stage—would the courts derive as to how they should answer that question from his Bill, were it enacted? The same point can be made with regard to the requirements of public safety and what is necessary in the economic wellbeing of the country. I doubt whether any of us would enjoy, as a judge, deciding that. Perhaps we would, but I doubt whether any of us would necessarily, with our judicial training, think ourselves particularly well qualified; certainly not as well qualified as those elected to the House might consider themselves to be.
The same point can be made on every one of those concepts, which serve as qualifications of or restrictions to the rights conferred, not only by article 8, but right the way through the general articles. Every one of them is politically highly charged. The idea that if this Bill were enforced the validity of any action said to be justified in the interest of national security could be instantly determined bears no serious examination at all.
§ Mr. Marlow
My right hon. and learned Friend has clearly said that one of the dangers of having this legislation enacted is that our judges will be seen to be performing a political role. As the system stands at the moment, European judges are performing that same political role. Is that any better or any worse? If it is worse, why do we still permit the right of individual petition?
§ The Solicitor-General
I have already acknowledged that it is no better for a European judge than for an 1270 English judge to have this jurisdiction conferred on him. I am strongly in favour—this is a personal opinion—of retaining our adherence to this treaty. But I draw the attention of the House to the difference between our arrangements—whereby if the court finds that our law does not comply with our treaty obligations, we have ample time to consider how to put it right—and the position under the Bill, when there would be, subject to the interesting point raised by my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan), an instant vacuum. I think that there would still be one.
§ The Solicitor-General
If my hon. Friend will allow me, I should like to develop my argument a little more. I know that other right hon. and hon. Members wish to speak, so I must not take too long.
The point of the issue is made best by article 1 of the first protocol:No one shall be deprived of his possessions except in the public interest".I do not think that the House would be satisfied if it were dealing with an ordinary Bill with provisions that gave, on a matter of such importance to liberty, as little guidance to a judge as that. My hon. and learned Friend the Member for Fylde said that the language was the language of "celestial clarity". I yield to no one in my admiration for the Bill's draftsmen. Celestial clarity there may be, but celestial certainty in its outcome there most certainly is not.
Of course I recognise that, under clause 6,judicial notice shall be taken … of all published judgements of the European Court of Human Rights".Without doubt, in some of these areas, detailed interpretations have already been made. But judgments in that court tend to be closely applied to the facts of an individual case, and in many areas there has been no detailed interpretation at all. But, in any event, I understood it to be an argument for the Bill that there is an advantage in having British rather than Strasbourg decisions. I do not think that we can possibly escape the conclusion that, if we pass the Bill, we shall be thrusting the judges far into the arena of political controversy. Until now, it is generally Parliament that has addressed itself to these issues. That is what we have been elected to do. We may not get it right—or perhaps we do get it right — with the benefit of hindsight, but the law that we make on these very issues is law that has seemed to the majority of us at the time to have been a good idea.
Our constitutional history rather strongly shows that over the centuries the British people have preferred that these matters should be decided by people whom they can elect and sack rather than people immune from either process—wiser, less opportunist or even less venal than such people might well be considered to be. So it is that Parliament has passed Acts such as those of which we have been reminded today — the Interception of Communications Act 1985, the Public Order Act 1986, the Abortion Act 1967 and the Police and Criminal Evidence Act 1984. Each has represented the balance between conflicting interests that has seemed right to the majority of us in Parliament at the time. We have gone through the process of lobbying by special interest groups and the laboriously contested Standing Committee stages. But at the end of it, with Royal assent, we have said to our fellow 1271 citizens, "There you are. You must conform to that." We have said to the judges, "There you are. You have to apply that." The judges have got on with it and applied the legislation judicially. That separation of functions is, I believe, generally thought to be beneficial.
§ Mr. Nicholas Baker
One of the advantages claimed for the Bill is that access, individually or corporately, to judges in Strasbourg would be unnecessary and limited. Following from article 6, if the convention is incorporated and British courts therefore have to interpret it and in every judgment take judicial notice of the judges in Strasbourg, is it not likely that we would be bound to the judges in Strasbourg in a way that we are not at present? Would not access to and the need to go to Strasbourg be just as great in practice as they are now?
§ The Solicitor-General
My hon. Friend has made an absolutely valid point. Of course English judges will be influenced by the judgments of the European Court, because that is the intention of the Bill. However, as has already been said, the Bill does not exclude ultimate recourse to the Strasbourg court. Those who complain about the time that will be taken will see that the time taken to reach Strasbourg will, in fact, be made longer and not shorter.
I do not pretend that it is possible to protect judges from all political criticisms. However, they are preserved from making policy decisions at the moment, and it is largely because of that that their reputation for political impartiality deservedly stands so high.
I am sorry that the hon. Member for Great Grimsby (Mr. Mitchell) is no longer in the Chamber, because I should have liked to have another go at him. He said that judges have an attitude of grovelling servility to the Executive. That does not stand up for a moment in the light of the fact that it is the judiciary, rather than Parliament, which has developed the jurisdiction of the judicial review of the exercise of discretionary power by any executive body, including the Government. That has been a very welcome development and also an immensely potent contribution to the rule of law. However, one cannot go on from that to the proposition that has been advanced that, somehow or other, the number of applications for judicial review shows how much we need to incorporate the convention on human rights — [Interruption.] That is what I understand to be the case.
It is said that, if judges can be trusted with judicial review, they can be trusted with the application of the convention on human rights. That is quite a separate matter, because judges never review the merits of an administrative decision. They are wise enough to recognise that the merits of such a decision are a matter for a Minister who is responsible to this House. The judges review the method by which that decision has been taken. The criteria that they apply boil down to one word—"fairness". Is the decision unlawful? Has a legitimate expectation been disappointed so that an aggrieved person is deprived of what he reasonably expected would occur, or would be offered, in the way of procedure? Is the procedure improper? Has there been an irrational, whimsical or capricious decision? It all boils down to whether the decision-making process has been fair. That has nothing to do with giving judges jurisdiction over an administrative function, choosing that which is necessary in the interests of national security.
1272 My great fear is that, if we were to pass the Bill, the judges' reputation for political impartiality would seriously decline, with grievously damaging results, not through the fault of the judges, but because of the essentially political tasks with which we would burden them.
Clause 4 lies at the heart of the Bill. It would oblige the judges to apply a presently existing Act of Parliament in such a way that anything that it authorised or required to be done would be authorised or required to be done only in a manner and to the extent that it did not infringe a fundamental right or freedom. A judge might for example, feel obliged either to alter the effect of, or in extreme cases to strike down a provision of, let us say, the Public Order Act 1986, although it had only recently been enacted. His grounds for that might be that the limitation that it placed on the right to freedom of peaceful assembly under article 11 was not justifiable as being necessary for the prevention of disorder.
Equally, the converse case could be put. The judge might reject a complaint made against that Act because he thought that the limitation was necessary. Either way the judge's political views would surely, inevitably, come to be the subject of intense public speculation. Such speculation can be foreseen not only on the occasion of every controversial judgment, but whenever new judges are appointed. It would soon be suspected, however unjustifiably—I believe that it would be unjustifiable—that they were appointed in part for their political philosophies instead of wholly for their judicial qualities.
It is no discourtesy to our American friends and allies to suggest that their system provides a vivid illustration of what I foresee. It was closely examined by Lord McCluskey in his recent lectures. It is no answer to claim, as can be done, that our most senior judges already interpret in the Privy Council the constitutions of some Commonwealth countries. That is a deeply valued privilege and honour. While the advice that the Privy Council tenders to Her Majesty is highly important, for example, in Jamaica, it will hardly make the judges' political views of controversial interest here.
Judges must have the respect of people of all political parties if they are to carry out their tasks, and they must be protected from conflict with Parliament, even if it is transient conflict. Let us not forget that at the head and forefront of the judges' task lies the protection of our freedoms. The point is not that judges could not do the job, but what the job would do to the judges. I entirely see that it may be argued that we cannot have everything and that that admitted disadvantage is outweighed by the advantage of having British judges doing the job.
Shorn of the elegance with which the point has been put, the argument comes to this: we are stuck with the convention, so let us at least have it applied by our judges because then at least some cases will not reach Strasbourg, where they will be considered by Members of the Commission or the court who are unversed in the traditions of our law and unacquainted with the circumstances of our society. I ask the House to examine whether it is as simple as that. We are not being asked to compare like with like.
Consider the difference between the present practice and what the Bill proposes: Strasbourg, seized of a complaint, tests our law against the convention and pronounces whether our law complies with our treaty obligations. If it finds that we are in breach, it does not 1273 disapply our law. Indeed, it cannot do so. It says, "Go away and get it right." It can only pronounce on whether we are in breach. If we are, it is for Parliament, as it should be, to put the law right or, in other cases, for the Government to alter their administrative practices. If that is the case, that is done as soon as possible. Under successive Governments, this country has never failed to do so within a reasonable period. Meanwhile, the existing law remains in force and there is continuity; for the time being, as things have been, they remain. No vacuum is created by a provision being struck down.
I listened with great interest to the point made by my right hon. and learned Friend the Member for Richmond, Yorks. It had attraction, but in practice there is a difficulty: the court will in effect have found that the law is bad, there will be time to put the matter right and for a declaration, but what will happen meantime? How will we deal with practical cases of would-be immigrants at Heathrow? The law will have been held to be in breach, as defective, and a moratorium will have been declared to allow the Government to introduce new legislation, so what will happen in practice in cases which involve the relationships between individuals? I do not believe that the suggestion is practical, although it is interesting.
§ Mr. Brittan
Is not that exactly the same position as arises now, after the Strasbourg court has found against us and before we produce a remedy? In those circumstances individuals who are faced with the same sort of situation as has caused the case to arise know that the court, which must ultimately be adhered to, has pronounced on their rights. The Government must frequently deal with that, and have been able to do so. My suggestion is that the position that applies now in relation to Strasbourg can be interposed into the position affecting our courts.
§ The Solicitor-General
It may look as though the position is the same, but it is not. Whereas at present there is a declaration limited solely to the fact that our treaty obligations have been broken, in the case that would obtain if the Bill were part of the law and my hon. and learned Friend's suggestion were enacted, our domestic law would be struck down. That is a different matter. Real difficulties are based upon the provision being brought into effect. To say, "If one is content that foreign judges should have this jurisdiction, therefore, there is advantage in British judges having it," is not to compare like with like.
There is weight in the point that it can take a long time to get to Strasbourg. In part, that is due to the necessary filtering of applications carried out by the Commission. A tiny proportion out of thousands of applications are held to be admitted, and a small proportion of those actually reach the court. That point was properly made by my hon. Friend the Member for Mid-Worcestershire (Mr. Forth). There is no filter in the present Bill, except for frivolous or vexatious proceedings, and that issue would have to be tried by the courts.
None of these issues is all black, all white or clear cut; heaven knows, we would not have discussed them over all these years if they were. There is much greater weight in the need to avoid uncertainty and the need for sufficient 1274 time to be available for the most practicable changes in our law out of many options to be identified by the Government, put before Parliament, and enacted.
I recognise — I apologise for taking so long, but in part it is because I have given way—that there are those who are critical of the quality of the Commission and the court at Strasbourg. I hope that they will recall that the Bill still keeps the right of personal access to Strasbourg. A complainant is not prevented from going there and, in the end, after he has exhausted all his possibilities for appeal in a British court—which itself may take four to five years—he will still have his access to Strasbourg. That will prolong prodigiously the period of uncertainty as to what our domestic law on any subject would be.
I have had the pleasure of appearing as an advocate for the British Government before both the commission and the court at Strasbourg. I greatly look forward to doing so again, preferably in office.
Under successive Governments, this country has renewed the right of individual petition to the Commission at Strasbourg and has accepted the compulsory jurisdiction of the court. We are not in breach of the convention for not incorporating its provisions into our domestic law. Recent decisions of the court establish that fact. Whether or not the convention is incorporated into our domestic law is no true measure of the degree to which the citizen's freedoms are protected in any European country. Here in the United Kingdom, as my hon. and learned Friend the Member for Fylde said in his most eloquent speech, we have looked to these rights, with or without the convention, over the centuries. We have secured them not by the importation of any constitutional document into our domestic law but by a free Parliament and by the right of access to an independent and impartial judiciary. We in this country are not strangers, as those who live in eastern Europe are, to the notion or to the reality of individual liberty. I do not believe that, when we consider the free world and make comparisons, we have any reason to feel ashamed.
The independent judiciary, not Parliament, has developed the jurisdiction of judicial review to which I have already referred. It has become a most potent force. No judge had more responsibility for the development of judicial review than the late Lord Diplock. He, least of all, could be charged with a lack of sincere concern for the rule of law. A few years before he died, he described the development of judicial review as the greatest achievement of the English courts in his judicial lifetime.
However, in a debate in the other place on a predecessor to this Bill, Lord Diplock said:The administration of justice in our country depends upon the respect which all people of all political views feel for the judges, and in my opinion that respect depends very much upon keeping judges out of politics. To pass this Bill of Rights cannot but have the tendency to bring more and more judges into politics. That seems to me to be a sufficient disadvantage, and so far as I am concerned, when it is put into the balance, it tips it down upon the side of not passing a Bill in the form of that which is proposed." — [Official Report, House of Lords, 29 November 1978; Vol. 396, c. 1347.]In that context, there is no significant difference between that Bill and the present Bill. The House ought to heed Lord Diplock's words.
I have read the view of Lord Scarman, whom I deeply respect. In the other place he expressed the view that the argument against this Bill, based upon too much power to the courts, can be immediately dismissed as one based not 1275 on reason but on a certain superficial distrust of the rule of law. We can trust the judges, but we cannot trust what would happen to judges' reputations. In view of Lord Diplock's remarks, I repudiate that charge not only with vigour but with confidence.
Many authorities of very great distinction and eminence, of whom my hon. and learned Friend the Member for Fylde is but one, favour the incorporation into law of the convention. Naturally, their eminence has caused me over the years to look again and again at my own opinion. I, like Omar Khayyam when young,did eagerly frequentDoctor and Saint, and heard great argumentAbout it and about: but evermoreCame out by the same door wherein I went.The paradox for those who want the convention to be applied by our judges is that it will grievously damage the standing of the judges, and in the process will encourage conflict, however transient, with the legislature.
In 1978, a Select Committee of the House of Lords was at odds about the advantages and disadvantages of the Bill of Rights. However, it agreed on this. At paragraph 30 of its report it said:in any country, whatever its constitution, the existence or absence of legislation in the nature of a Bill of Rights can in practice play only a relatively minor part in the protection of human rights. What is important, above all, is a country's political climiate and traditions.Because the Government believe that the underpinning of liberty by law is best achieved by a free Parliament and an independent judiciary in the political climate and tradition of this country, I cannot commend the Bill to the House.
§ Mr. Nicholas Brown (Newcastle upon Tyne, East)
Like the Solicitor-General, I am sure that the whole House is grateful to the hon. and learned Member for Fylde (Sir E. Gardner) for introducing this measure. On behalf of the Opposition, I associate myself with the kind remarks that have been made about him. I am sure that, once he got over his surprise at having done so well in the ballot, he decided to introduce a measure to which the House ought to give its undivided attention.
The House does not have many opportunities to debate the administration of justice. Therefore, today's debate is to be welcomed. It provides us with an opportunity to discuss the matters of substance in the Bill. In a debate of this nature it is easy for important but separate matters of principle to be intertwined and confused. In an effort to avoid that danger, I say at the outset that the European convention on human rights has my support as an important and valuable international statement of principles which, as the hon. and learned Member pointed out, are thoroughly British. My doubts arise not from the contents of the convention but from matters that would accompany its incorporation into the main body of United Kingdom law.
The main value of the convention lies in its present standing as an international statement of principle to which nation states, each with its own different legal codes and structures, can adhere. It is its international status that gives to the convention its perspective and authority. I fear that to try to incorporate such broad statements of principle directly into United Kingdom law is in practice almost unworkable and in any event unnecessary. It is for Parliament to legislate and for the courts to interpret that legislation.
§ Mr. Brown
It is for the courts to interpret legislation. To allow the courts to question legislation would be to undermine the separation of powers and place the formulation of legislation in the hands of unelected and politically unaccountable persons. If the judges were to determine the legality of legislation, it would transform the role of judges and bring them further into the political arena.
A recent survey has revealed that British judges, as one would expect, have strong political views. One in 14 has been actively involved in party politics at the parliamentary level. There have been three who have been Conservative Members of Parliament and one Labour Member. A further four have stood as Conservative candidates, six as Liberal and four as Labour candidates for Parliament. I do not say that against them — it is very much to their credit. Alongside that there is a much more telling statistic. Of the 10 Law Lords, nine went to public school and eight went to either Oxford or Cambridge. Of the Court of Appeal judges, 86 per cent. went either to Cambridge or Oxford. In short, our present judiciary is not politically indifferent, and is predominantly drawn from a narrow section of British society.
§ Dr. Godman
My hon. Friend is talking about the English judiciary. The Scots judiciary is slightly more heterogeneous in social and economic background.
§ Mr. Brown
I am willing to accept that that is true, but I am sure that it does not affect the main thrust of my argument, which is that the judiciary is drawn from an atypical cross-section of the British population.
Such judges could find themselves striking down existing legislation and creating law themselves. This is not the best way of making law. It is bound to lead to political controversy and to contentious things being said and perhaps being done. It would undermine support for the judiciary in its independent and impartial role. Rights should not be evolved in the haphazard course of litigation which is, by its nature, a random process.
The present method whereby, if it becomes apparent that there is a serious gap in the law, a body is set up to investigate, comments arc invited upon its deliberations and recommendations made, and finally Parliament, with a House of politically accountable representatives considers and decides after debate whether, as a matter of policy, the law should be developed or changed, is better. Judges do not have the training, the experience or the accountability to decide broad issues of policy. Furthermore, in our system they are not used to dealing with broad concepts.
§ Mr. Alex Carlile
How can the hon. Gentleman say that judges are not used to making judgments on broad concepts? Has he never heard of the concept of the man in the Clapham omnibus, which judges have to apply day after day? Has he never heard of the concept of reasonableness, which has to be applied day after day in the Queens Bench division of the High Court? What is he talking about in that childish and absurd proposition?
§ Mr. Brown
Those were my arguments.
The British judiciary has interpretive functions. The question is how far those functions should be extended and whether they should be given as wide a discretion as incorporating the European convention on human rights would allow.
I shall explore the Thalidomide case in a little detail because it is an example that is held up regularly by advocates of the Bill of Rights of what such a Bill could achieve for Britain. In that case, Distillers was sued by the parents of a number of children who were born deformed because of their mothers' use of the drug Thalidomide during pregnancy. An offer of settlement was made by Distillers and rejected by some parents.
While the litigation was dragging on, The Sunday Times, in a more campaigning mode than is now the case, wrote an article criticising Distillers for what it said was the poor offer of compensation Distillers had made. The then Attorney-General took proceedings against The Sunday Times for contempt of court. The article was, so he said, an interference with the litigation between Distillers and the parents by bringing pressure on Distillers pending the court case.
The House of Lords agreed with the Attorney-General. The matter went to the European Court which upheld The Sunday Times on the basis that the House of Lords' decision was contrary to article 10 of the European convention on human rights. Article 10 refers to freedom of expression and the right to impart ideas. For that reason, the case is cited often in support of a bill of rights. In my contention, the citation is unmerited, to be justified, supporters of the Bill of Rights must show that somehow if the convention were made English law, the decision of the House of Lords would have been different. I am convinced that that is not so. The House of Lords' reasoning differs from that of the European court in one respect only. Whereas the House of Lords thought that the interests of the administration of justice triumphed over freedom of the press, the European court thought that the press should triumph. It was treated in both courts as a classic case of competing interests. The principles of domestic and European law were the same. Lord Reid said in the other place that freedom of speech should not be limited to any greater extent than is necessary but that it could be allowed where there would be real prejudice to the administration of justice.
Article 10 allows freedom of expression and the right to impart ideas and information. However, article 10(2) permits restrictions of those freedomsfor the protection of the reputation or rights of others.The European court could have used article 10(2) to uphold the House of Lords. It did not do so because, subjectively, it thought that in that case, the freedom of the press was more important. Equally, the House of Lords need never have decided the case against The Sunday Times. It chose to do so and it would be free to do so whether or not a Bill of Rights was incorporated into British law.
§ Mr. Ottaway
Is that not a classic example where it would have been far more appropriate for the matter to stop with the House of Lords?
§ Mr. Brown
The hon. Gentleman is saying something that would undermine our entire involvement in the 1278 convention, If the hon. Gentleman's view is that we should not be a party to the convention at all, it is one that I repudiate for the reasons that I have already set out. If the hon. Gentleman is saying that people should not be able to exercise their rights to appeal against a decision of the House of Lords, that is wholly wrong.
§ Mr. Ottaway
I intervene merely to clarify. If the House of Lords had the right to look at the articles in the convention, there would be no need to go to Europe and it would be able to stop with the House of Lords. It could make its decision based on is principles but with the benefit of the articles.
§ Mr. Brown
The hon. Gentleman, for whom I have considerable regard, is being uncharacteristically obtuse. My point is that the House of Lords and, indeed, any British court of human rights, however it was established, would have been perfectly free under the covention to decide either way. The enactment of the convention into English law does not necessarily mean that the decision on the Thalidomide case would go in the direction decided by the European court, rather than vice versa. My point is that the decisions are subjective and rely, to some extent at least, on political judgment rather than the letter of anything contained in the European convention on human rights to the exclusion of anything else that is contained in the convention.
My hon. Friends, the Members for Great Grimsby (Mr. Mitchell) and for Linlithgow (Mr. Dalyell) said that the special branch raid on the BBC would have been prevented if the Bill had been passed in an earlier Parliament. That is not so. It is a red herring, which has been thrown into the debate — I am sure that it is well-intentioned. Nevertheless, it is a red herring—[Interruption.] Perhaps it is a pink herring—a Grimsby herring, to boot.
I am taken by the case that arose from recent events at GCHQ. The two issues that were in contention were the Government's right to take measures to protect the security of the state and the individual's right to join a trade union, both of which rights are clearly set out in the convention. Those who had to decide on the convention had to decide which right was paramount. In fact, the case did not even get beyond the Commissioners. They decided that the interests of state security were paramount. I cannot see that a different decision would have been made in that or the BBC case had the convention been enshrined in domestic legislation.
The thrust of my objection and, as I understand it, of the Solicitor-General's objection, is the political effect on our courts. It is also this. To allow the courts to question legislation would throw the whole of the law into a state of uncertainty. Any point of law could be challenged. Such opportunities would be exploited, largely at public expense. Legal aid would be invariably granted on disputes relating to such important constitutional issues. While I can see that that would be of enormous benefit to the legal profession, I am not convinced that anybody else would gain from it. The tradition in the United Kingdom has been to have firm remedies rather than vague and resounding general rights. There would be grave difficulties for judges in interpreting the non-specific articles, a point that was made tellingly by my hon. Friend the Member for Denton and Reddish (Mr. Bennett).
Our human rights are well protected in this country in any event. I am grateful to Lord Elwyn-Jones for his 1279 analysis of the convention's articles and the corresponding provisions of English law, in the debate in the other place in December 1985. The history of England is geared to human rights—the Magna Carta, the Bill of Rights in 1688, habeas corpus, trial by jury. Those are all rights that are enshrined in British law.
§ Mr. Brown
Anyway, a Bill of Rights is no guarantee of liberty. The convention contains few absolute rights that are set out without restrictions.
Let me divert to a smaller point. The right hon. and learned Member for Richmond, Yorks (Mr. Brittan) referred to the right of individual petition and our support for it. I was taken by most of the right hon. and learned Gentleman's speech, and I agreed with that aspect of his argument. In that context, I should like to alert the House to what is happening in the Isle of Man and the Channel Islands where, as I understand it, rights are to be removed or may have been removed. In the light of what has been said in the House today, may I prevail on the Solicitor-General to review what is happening in those two territories? It is a byway to the main argument, but an important byway and I take this opportunity to raise it with the Solicitor-General.
Supporters of the Bill have argued that there would be immediate access to a court in the United Kingdom for an individual who claimed that a public authority had violated a right guaranteed to him by the European convention. The point has been made that referrals to Strasbourg are expensive and take time. However, the right to go to Strasbourg would still be there. It would not he suppressed by incorporating the convention into English law. Thus, not only could we be extending the time in which a definite decision was reached but we would be extending the cost of the decision-making process because the aggrieved party, regardless of which side was the loser in the British court, would, in all likelihood, want to exercise the right of final appeal.
My speech has been, I hope, gently and courteously opposed to the issue of incorporation, but not to the principles that underline the Bill. I want to conclude by making some suggestions which I hope will be considered to be constructive alternatives to the possibility of direct incorporation of the conventions. My right hon. Friend the Member for Bethnal Green and Stepney, (Mr. Shore) who is here beside me on the Front Bench suggested that a review of the issue of incorporation through the House of Commons Select Committee procedure might be an appropriate avenue to pursue. That would update the work carried out in another place about 10 years ago, and that might not be a bad thing. Parallel to that, Parliament could also consider the possibility of making a provision to the effect that on an application for judicial review, it should be deemed unreasonable for a body to exercise its powers in such a way as to contravene the terms of the convention. It would also be possible for Parliament to decide that the Parliamentary Commissioner could be specifically empowered to investigate any alleged breach of the convention and to lay a report of his investigation before Parliament for consideration.
1280 I put those ideas forward as constructive alternatives to what I believe is the too far-reaching proposal that we should incorporate the convention wholesale into English law. I have to oppose the Bill. However, I do that only on practical grounds. I hope that the Bill's sponsors will acknowledge that among those of us who have reservations about this proposal are hon. Members whose commitment to human rights are every bit as strong as theirs.
§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. I appeal for brief speeches in what is obviously the closing phase of the debate.
§ Mr. Robert Maclennan (Caithness and Sutherland)
I begin my remarks by congratulating the hon. and learned Member for Fylde (Sir E. Gardner) on his good fortune and on the eloquence with which he introduced the Bill. He referred a little to the legislative history and to its appearance in a previous Session of Parliament under the sponsorship of Lord Broxbourne. With all humility, I want to draw attention to the fact that the proposal made an even earlier appearance in this House when in December 1983 I introduced a Bill in almost exactly the same terms, and the hon. and learned Member for Fylde was kind enough to sponsor my Bill on that occasion. I am glad, therefore, to be able to support the hon. and learned Gentleman's Bill, which I believe is particularly timely.
Although the Solicitor-General in the course of his remarks spoke about this proposal as the subject of perennial debate, it is fair to say that the debate has not taken place on the Floor of this House perennially. This has been a subject for academic debate and comment perhaps by judges and politicians but not, alas, for this Chamber. There is a great opportunity today for the House to consider and pronounce upon these issues.
There are very few advantages in being called so late in a debate. However, one advantage is that I have had the good fortune to hear the comments of the Solicitor-General. He was united with the Government Front Bench and the Labour party in a degree of insularity which I found distressing from one whom I admire so much. In his insularity and conservatism—and his conservatism was mirrored by that of the hon. Member for Newcastle upon Tyne, East (Mr. Brown) — he seemed almost to be referring to a byegone age, an age on which Parliament was able, perhaps because of the limited responsibilities of the Executive, to rectify quickly perceived grievances flowing from the oppressiveness of the limited apparatus of the state.
One of the most thoughtful speeches in opposition to the Bill was made by the hon. Member for Manchester, Withington (Mr. Silvester), who referred to the remedy for grievances being in the hands of Parliament.
I have served in Parliament for 20 years, and I wish that I could say that Parliament can remedy grievances in the way in which the hon. Gentleman so idealistically described. Alas, the position is different. We must recognise — this bears upon the insularity of the Solicitor-General's approach—that our experience in the delivery of remedies for grievances is almost unique in that we do not have a Bill of Rights to which our citizens can turn for redress.
1281 New Zealand and Israel are the only other countries to have held out against the introduction of a Bill of Rights. Many years ago, the House legislated to ensure that Canada should enjoy the benefits of a Bill of Rights, and there have been several cases since then. When giving independence to our former colonies, we almost invariably tried to give them the benefit of such a Bill. The only country to which we have denied the privilege is Britain. What is so unique about Britain that it stands apart from the tide of history in this matter and is so complacently content that its citizens are protected by the procedures which grew up in the 19th century, in an age when Governments had relatively limited responsibility?
The Solicitor-General invoked only one argument—the impact of such a Bill on the judiciary and the public perception of it. But I welcome his assertion, on behalf of the Government, that the rights guaranteed by the convention are rights which the Government wish to be retained, and that they accept that the right of individual petition to Strasbourg should be renewed. Other hon. Members pitch their opposition against the convention itself, but that was not the argument deployed by the Solicitor-General. He made it plain that our citizens should enjoy the rights guaranteed by the convention, but he also made it plain that, to obtain those rights, they must go through the tortuous, circuitous and expensive route of the Commission and court in Strasbourg.
The Solicitor-General was careful to say, I think rightly, that British judges are competent to consider issues that involve applying general constitutional provisions and general principles of law such as those enshrined in the European convention. He could scarcely have denied it. as the Judicial Committee of the Privy Council has adjudicated on precisely such matters. Indeed, I appeared before the Judicial Committee in a case where the definition of "cruel and unusual punishment" had to be considered. Such matters have been in the jurisdiction of our judges for many years, and it is not difficult for them to apply those principles.
Had there been any doubt about judges' competence in that area—one can insulate their experience of acting as a court of appeal from foreign jurisdictions—that doubt has been removed by the development of the jurisprudence of British courts since we joined the European Community. European Community legislation is frequently cast in the civilian tradition that incorporates broad principles into the law and requires judges to make the sort of judgments that they are making at present without difficulty, greatly assisted by the jurisprudence of the European court. The jurisprudence of the European Court of Human Rights will be of assistance when, as they should, these matters come before our courts.
It is imperative that we give our citizens the greater benefit of enjoying judgments on these broad issues by our own judiciary rather than entrust them to a foreign court when that is not necessary.
It has been argued that there is still a right of appeal to Strasbourg. That is true, but I think that the Solicitor-General would agree that, if a matter is settled in a higher court in Britain on an intepretation of the European convention, it is extremely unlikely that the judgment will be taken from our courts and placed in the European sphere, save in the most exceptional circumstances. The cost of doing that is great and involves much time and 1282 uncertainty. Most citizens who avail themselves of the right to go to British courts will be satisfied by the domestic jurisdiction.
The Solicitor-General spoke about a threat that judges would be politicised. What is that threat? Surely he is not suggesting that our judges are not involved in politics. They take decisions of great political sensitivity and many cases, such as the Ponting and Tisdall cases, have great political resonance. In considering the wide range of issues which come before them for judicial review, it is impossible for judges to avoid taking a stance that may be of great political importance and politically highly controversial. As the Solicitor-General rightly said, judges have been developing this jurisdiction and have not feared to develop their roles in this way. They have not felt that they were becoming politicised. Why should we fear that they would be politicised when they do not fear it?
The Solicitor-General quoted Lord Diplock. He might also have quoted a number of equally senior judges who take a very different view from that taken by Lord Diplock. The movement of judicial opinion is towards recognising that it is the judicial role of judges to interpret the will of Parliament expressed in statute, and to do it against the background of the broad principles that Parliament has espoused for generations.
The Bill is long overdue and has had powerful support in the debate. It was supported in principle by the Lord Chancellor in a debate in another place when the noble Lord Wade introduced his Bill. The principle of this Bill has the support of many hon. Members. One of its most notable supporters is the right hon. Member for Barnsley, Central (Mr. Mason). As a result of his experience in Northern Ireland, he recognises that the entrenchment of the protection of human rights by a Bill of rights in that troubled province of the United Kingdom could make a powerful contribution to restoring harmony and trust to that part of our realm. I happily commend the Bill to the House.
§ Mr. Charles Irving (Cheltenham)
I have listened to the whole of the debate. Some of the comments have greatly disturbed me, but, before drawing attention to some of them, like other hon. Members I should like to pay a great tribute to my distinguished hon. and learned Friend the Member for Fylde (Sir E. Gardner) for seeking to place his measure on the statute book. In this endeavour, he worthily sets himself beside the great reformers who have graced this House over many years. I note with special pleasure that many Ministers—I am a bit worried about the Solicitor-General — the judiciary and members of both Houses support this worthy initiative.
Like many right hon. and hon. Members present, I believe that British citizens should not need to go to Strasbourg to protect their human rights. It may be expedient for them to continue to do so. Some may feel that to transfer these matters to British judges in British courts would be a bit of a nuisance. It would be nearer. Strasbourg is a long way away. It is expensive. It takes a long time to get there. Perhaps the number of people who feel that they have a grievance will be boosted if they can pursue their case before British judges in British courts with people who understand British justice.
We are blessed in many ways in Britain. In recent centuries, we have not experienced invasion, dictatorship or great social division. By the standards of other 1283 countries, we enjoy a remarkable level of tolerance, but tolerance is a fragile thing. This great and unique gift of ours has no protection in our legal and judicial system.
Many changes in society are beyond the scope of the individual to comprehend, let alone control. In a world of instant communication, increased centralisation and bureaucracy and extra-territorial regulation, the individual, without the protection of positive, legally defined human rights, is placed at a serious disadvantage vis-a-vis the institutions of state and other large corporate organisations.
Information gathering seems to be the obsession of modern society. It imposes a great threat in that it casts suspicion on what are sometimes the most innocent of activities. It frightens and deters people from the full enjoyment of their tolerances and freedoms. For far too long we have paid lip service to various charters on human rights, but, in the reality of everyday life, they have absolutely no meaning. They have no force in law.
Nobody will disagree that, on issues of human rights and administrative law, our courts are slow, cumbersome and expensive. That is even truer of Strasbourg. They overwhelm the individual. The long road to Strasbourg could take many years. We are almost alone among the signatories of the European convention in not having incorporated it into our internal law.
If the Bill becomes law, the interpretation and adjudication of the contents of the Bill will become a matter for British judges sitting in British courts. I fail to understand the anxiety about the difference between a Strasbourg judge and a British judge. If it is expedient for justice to be available to all people, surely we ought to be satisfied that we can obtain it in our own country. If we are not, I have grave doubts about many of the issues that concern many right hon. and hon. Members on both sides of the House.
Individual petitions to the European Commission of Human Rights will become a thing of the past. Justice for the individual will come more speedily and less expensively, and it will be British. Far from taking away the sovereignty of Parliament, the Bill will strengthen its role in our society. However, it will do more. It will give the ordinary people confidence to face coming changes knowing that our great gift of tolerance is protected by law.
I should like to see these rights protected. At present, there is doubt about many of them. We should have the right to be protected from torture and inhuman or degrading treatment or punishment; the right to a fair and public trial; the right to respect for private and family life, with no interference by a public authority; the right to freedom of expression, thought, conscience and religion; the right to freedom of peaceful assembly and freedom of association with others; the right to form and join a trade union; the right to peaceful enjoyment of possessions; the right to education and teaching to conform with parents' own religious and philosophical convictions; the right not to be expelled from the territory of the state of which the individual is a national.
Subject to the restraints in paragraph 2 of article 11 of the convention, the state is protected; state security is protected. I entirely support and commend the Bill to the House.
§ 2.7 pm
§ Mr. Steve Norris (Oxford, East)
I shall confine myself to two observations. First, I congratulate my hon. arid learned Friend the Member for Fylde (Sir E. Gardner), who moved the Bill, on his good fortune and the excellent way in which he introduced the motion. He used some words which gave the lie to the whole of the debate. He talked about a grand theme, and he used a phrase that other hon. Members have used since — "the celestial clarity of the convention". I shall concentrate on those words.
I confess that when I first came into the House I supported the Bill. I thought that it was a jolly good idea. Arguing against a convention on human rights is like arguing against Mum and apple pie—not the sort of thing that any of us want to do. My mind was changed only when I did something which is not a common exercise for me—which I must avoid in the future, because it confuses me terribly. I read the Bill. When I read the convention I became convinced that we were fortunate that we had merely restricted ourselves, at this stage, to the recognition of the right of the individual to petition arid that we had not permitted the incorporation of the convention into British law.
My hon. Friend for Mid-Worcestershire (Mr. Forth) made an interesting intervention earlier on. My hon. Friend challenged the assertion made by the mover of the Bill that 70 per cent. of the general public, when asked whether they wanted the Bill, said that they did and that they felt surer and more secure. My hon. Friend asked how many of that 70 per cent. had read the Bill, to which my hon. and learned Friend for Fylde in a brilliant debating point, said that if more people had read the Bill more would have been in favour of it. That is wonderful stuff, but the point that my hon. Friend was making—which I entirely take—is that if the Bill had been read word for word, would those who claim the great advantages for the convention still be of that mind?
I shall make one topical point, which relates to the police in Scotland and the premises of the BBC. Much nonsense has been talked by some hon. Gentlemen who support the Bill — with friends like that, who needs enemies? — who endeavoured to suggest that if the convention was in force none of the action taken by the police against the BBC would have happened, or had it happened, the BBC would have been able to invoke some miraculous right that would have set aside all the police action. Those hon. Members obviously cannot have read articles 8 and 10 which govern these affairs. Article 10 says:Everyone has the right to freedom of expression.Of course, that would be the right under which the BBC presumably would have gone to the High Court and said "Set aside this action by the police." The High Court would have said, "But subparagraph (2) of the article states: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.The subparagraph continues with these wonderful words well remembered by those of us who considered the Data Protection Bill with my hon. and learned Friend the Minister of State, Home Office, and the Interception of Communications Bill and who, incidentally, helped to 1285 introduce the Access to Personal Files Bill, which will be considered on 20 February and which I am sure all hon. Members will be here to support. It states: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 othersand so on. In other words, there is nothing in the convention that would not find itself the subject of the most intense debate, speculation and disagreement as to precisely what these wonderful nebulous and of themselves utterly meaningless concepts would mean in relation to that activity.
§ Mr. Norris
The truth is that the existence of this legislation incorporated into British law as the Human Rights Act 1987 would not have made a blind bit of difference to the activities of the police at the BBC over the Zircon affair last week—indeed, it would have confused it.
§ Mr. Norris
I shall not give way to any hon. Member. This will enable at least one other hon. Member to speak. I am reminded that any examination of constitutions throughout the world will conclude that one of the most seamless documents and one of the most perfect examples of a constitution drafted with every conceivable human right catered for, explained, annotated and developed, is the Soviet Union's constitution. Anyone who believes that freedom is based on the existence of pieces of paper cannot have kept his eyes open throughout his examination of politics in any country. Freedom is maintained where there is a will to maintain it. If I may use a solecism of sorts, as my right hon. and learned Friend the Solicitor-General did, the common law exists to protect the principle of the common man and has done so before and after the Bill of Rights of 1688. That is the real answer. I believe in the process of the common law being developed by judges in our courts. I do not believe in the value of these pieces of paper, however high-minded and high-flown and however much they seek to better the lot of mankind. I believe that we would be in considerable difficulty if we were to draw every tighter the convention into British law. I oppose the Bill and invite hon. Members to join me.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
I compliment the hon. and learned Member for Fylde (Sir E. Gardner) on the Bill and his presentation of it. My brief intervention will be somewhat briefer than some of the speeches to which we have had to listen.
There is a serious need to protect liberties and rights in Britain. One critical issue is the conflict between the judgments of unelected judges and those made by elected legislators. Some people claim that there is a need for greater protection of the individual. Neal Ascherson, writing last Sunday in The Observer, said:There ought not to be any doubt now that liberties in Britain need protection. This particular Government has practised an odious combination of laissez-faire in the economy and society with a rapid increase in state and police power over the individual.That is one view of the diminution in the rights of the individual in Great Britain today.
1286 The Bill, which I welcome with some reservations, will provide an extra tier of defence for the citizen whose interests have been harmed by an uncaring or intolerant Government. There is a case for the incorporation of the European convention on human rights into our domestic law. That can be illustrated by The Sunday Times Thalidomide case, in which the Strasbourg judges gave a conflicting view about the conflict with public interests. In other words, the Strasbourg judges argued that there was an interference that was unnecessary in a democratic society. That is an example of a case in which different judges arrive at different conclusions, which is a serious matter for a domestic Parliament. The decision in Strasbourg on GCHQ was, of course, an entirely different matter.
There are those who put their trust in Parliament and in elected legislators to protect the interests of injured citizens. One such person is Lord McCluskey, who is an eminent Scottish judge, and a man I respect enormously. He had this to say about a Bill of Rights:Why should it be supposed that elderly lawyers with cautious and backward-looking habits of thought arc qualified to overrule the judgments of democratically-elected legislators … I do not profess to understand.Lord McCluskey said that in the fifth of his Reith lectures.
I have a great deal of sympathy with Lord McCluskey's realistic view of judges. Alongside his scepticism about his own profession, he displays an astonishing trust in elected legislators and I part company with him on that.
In my view, human rights need a greater, or an added protection to that which is offered by Parliament and numerous decisions in Strasbourg have clearly shown the need for that added protection.
I agree with the comments made by my hon. Friend the Member for Linlithgow (Mr. Dalyell) that the raid on the BBC offices in Glasgow had much more to do with the political concerns of the Prime Minister than with national security. The Lord Advocate's role in this unseemly affair has aroused consideration unease in Scotland. However, against that, in granting an interdict on behalf of the BBC against the police raid on its offices in Glasgow, Lord Clyde behaved in a reassuringly impartial manner. Nevertheless, the role of the Lord Advocate needs to be subject to rigorous scrutiny, because he caused deep alarm in Scotland by the wording of the initial warrant.
That squalid affair clearly shows the need for a Bill of Rights. The public, or large sectors of it, no longer trust the Prime Minister and her Ministers. Therefore, I support the Bill in principle, but, at the same time, I am seriously concerned about the potential conflict arising from judgments made byelderly lawyers with cautious and backward-looking habits of thought",and those made by democratically elected legislators. Therefore, on balance, I support the Bill.
§ Mr. William Cash (Stafford)
I firmly oppose the Bill. We are in a different position in relation to these issues. The traditions of the House, which have developed over many centuries, are based on ministerial accountability to the House. To intrude into our constitution the notion that judges should be given a greater degree of political involvement in matters that should be dealt with by the House is to take a major and dangerous step.
I have grave doubts whether our Standing Orders and, indeed, the whole of the procedures of the House could 1287 withstand the provisions of the Bill if it were enacted. I ask the House to consider the Osmotherly rules and their practical application for Select Committees, whether people should be cross-examined before Select Committees, and all matters which are at present within the framework of the House, such as orders, procedures and Standing Orders. Our Standing Orders are subject to statutes, so we could find that the ultimate decisions about the proper way to conduct our proceedings were subject to judicial review. Clause 9 of the Bill and, indeed, the Bill itself would be subsumed into these provisions.
If the Bill is passed there will be much greater confusion and ambiguity between what is legislated in the House and what is decided in the courts. Moreover, if one considers the way in which the 21 countries that have incorporated these provisions into their domestic law have operated, one finds a great deal of uncertainty and confusion between the methods of dealing with these provisions in their courts and those in their legislatures.
Recently we legislated on public order. I hope that the articles will be referred to the Floor of the House so that we can consider properly the question that arise. If we were to apply the articles in the convention to the Public Order Act 1986, the questions that have arisen in relation to Wapping and the miners' strike would be completely overridden by what the judge in that case thought was necessary, rather than dealt with on the basis on which we proceed at present.
At the heart of this matter is the judges' method of interpretation of the laws which are brought before them for scrutiny. We have our canons of interpretation, known as stare decisis, which are not shared in the European courts. This is a matter of profound importance. I ask the House to consider a conflict between our legislation, which provides for that which is reasonable, and what is regarded as being necessary. Article 9 states that freedom of thought shall be subject to limitations asare necessary in a democratic society.How would that be interpreted by judges? The short answer is that they would decide what was necessary and the normal rule about what is or is not reasonable would go out of the window. The Bill is much more fundamental than it has appeared from some speeches we have heard.
The question of the right to life raises grave doubts and, indeed, there must be a presumption of grave doubt. Article 2 states:Everyone's right to life shall be protected by law",except where a person is convicted of a criminal offence. If one looks at European cultures that have incorporated these provisions, considers abortion and related matters, articles 2 and 8, and the principle that I have stated at the end of the day, one will have grave doubt about what this piece of paper amounts to.
I pay tribute to my hon. and learned Friend the Member for Fylde (Sir E. Gardner) for drawing attention to these important matters. It is not practicable to introduce provisions of this kind and to politicise not only judges' judgments but, in effect, eventually their appointment. At the end of the day, we must consider whether we wish to follow a system of interpretation of law that is relevant in Europe or whether we are prepared to go along with the traditions of the House that go back to 1688 and before. We must ensure that we stand foursquare by the principles and traditions that have led to the redress of grievance in this House, and not have such matters dealt with by courts that would become entirely 1288 politicised. That would be a dangerous step. I hope that the matter can effectively be dealt with in detail on the Floor of the House.
§ Mr. Nicholas Baker (Dorset, North)
I am tempted to support the Bill so that we have the opportunity to express our views. But with great regret, and not because I am opposed to the sentiments expressed by my hon. and learned Friend the Member for Fylde, (Sir E. Gardner), I oppose the Bill for three reasons. First, there is a small but distinct shift in political power to the judiciary, and that is undesirable. Secondly, there will he an increase in litigation, not necessarily in the libertarian cause. Thirdly, there will be uncertainty about the law which, ultimately, will not achieve greater protection for the individual citizen.
The European convention on human rights is not a body of law but a treaty. When judges in Strasbourg decide an issue about immigration or anything else, they do not give a judgment on the matter so much as say that the treaty has been broken, and it is up to the British Government to decide what they will do about the matter. As we know, British Governments have always taken action, in the opinion of the Parliament, to put matters right. I stress that it is in the opinion of the Parliament.
My concern is how we decide what the law is. How does the oil of the convention mix with the water of the common law of England? The Bill, if enacted, will leave that matter to judges. In effect, they will be asked to decide matters which presently fall to be decided by Parliament, however pressured we are by being a signatory to the treaty.
Most hon. Members will accept that the greatest protection of the human rights of our citizens is to be derived through the elected Members of this place. Judges are not trained to make such decisions and would Lind the political waters in which they are invited to dabble their feet unfriendly and unnatural.
The speech made by the hon. Member for Great Grimsby (Mr. Mitchell) was particularly significant. He expressed the greatest hostility to judges and to the type of decisions that they are asked to take today. How much greater would be his hostility, and, no doubt, that of some of his hon. Friends and others, to judges if they were asked to widen the area of their decisions, as they are being asked to do so under the Bill? I take seriously the risk that, if this convention were put into our law, it could lead to the political appointment—
§ Question put, That the Question be now put:—
§ The House divided: Ayes 94, Noes 16.1289
|Division No. 83]||[2.30 pm|
|Adley, Robert||Cartwright, John|
|Aitken, Jonathan||Clegg, Sir Walter|
|Anderson, Donald||Cox, Thomas (Tooting)|
|Atkinson, David (B'm'th E)||Crouch, David|
|Beith, A. J.||Dalyell, Tam|
|Bonsor, Sir Nicholas||Deakins, Eric|
|Braine, Rt Hon Sir Bernard||Dykes, Hugh|
|Brittan, Rt Hon Leon||Finsberg, Sir Geoffrey|
|Bruce, Malcolm||Fookes, Miss Janet|
|Campbell, Ian||Fox, Sir Marcus|
|Carlile, Alexander (Montg'y)||Fraser, J. (Norwood)|
|Carlisle, Rt Hon M. (W'ton S)||Freeson, Rt Hon Reginald|
|Gardner, Sir Edward (Fylde)||Mitchell, Austin (G't Grimsby)|
|Gilbert, Rt Hon Dr John||Morris, M. (N'hampton S)|
|Gilmour, Rt Hon Sir Ian||Morrison, Hon C. (Devizes)|
|Godman, Dr Norman||Murphy, Christopher|
|Goodhart, Sir Philip||Normanton, Tom|
|Greenway, Harry||Osborn, Sir John|
|Grist, Ian||Owen, Rt Hon Dr David|
|Ground, Patrick||Pavitt, Laurie|
|Hancock, Michael||Prentice, Rt Hon Reg|
|Harvey, Robert||Price, Sir David|
|Haselhurst, Alan||Raison, Rt Hon Timothy|
|Hayes, J.||Randall, Stuart|
|Hayhoe, Rt Hon Sir Barney||Rathbone, Tim|
|Higgins, Rt Hon Terence L.||Rees, Rt Hon Peter (Dover)|
|Holt, Richard||Rhodes James, Robert|
|Hordern, Sir Peter||Rhys Williams, Sir Brandon|
|Howell, Rt Hon D. (G'Idford)||Rippon, Rt Hon Geoffrey|
|Howells, Geraint||Roberts, Ernest (Hackney N)|
|Hughes, Dr Mark (Durham)||Rossi, Sir Hugh|
|Hughes, Simon (Southwark)||St. John-Stevas, Rt Hon N.|
|Hume, John||Shelton, William (Streatham)|
|Irving, Charles||Shields, Mrs Elizabeth|
|Jackson, Robert||Skeet, Sir Trevor|
|Janner, Hon Greville||Squire, Robin|
|Jenkins, Rt Hon Roy (Hillh'd)||Steel, Rt Hon David|
|Johnston, Sir Russell||Temple-Morris, Peter|
|Kennedy, Charles||Townsend, Cyril D. (B'heath)|
|Key, Robert||Wainwright, R.|
|Kirkwood, Archy||White, James|
|Knowles, Michael||Whitney, Raymond|
|Lawrence, Ivan||Wigley, Dafydd|
|Lewis, Sir Kenneth (Stamf'd)||Wilkinson, John|
|Livsey, Richard||Yeo, Tim|
|Maples, John||Tellers for the Ayes:|
|Mates, Michael||Mr. Jeremy Hanley and|
|Meadowcroft, Michael||Mr. Richard Ottaway.|
|Atkinson, N. (Tottenham)||Sedgemore, Brian|
|Baker, Nicholas (Dorset N)||Short, Mrs R.(W'hampt'n NE)|
|Bennett, A. (Dent'n & Red'sh)||Silvester, Fred|
|Budgen, Nick||Skinner, Dennis|
|Fields, T. (L'pool Broad Gn)||Stanbrook, Ivor|
|Foot, Rt Hon Michael||Stern, Michael|
|Hart, Rt Hon Dame Judith|
|Haynes, Frank||Tellers for the Noes:|
|Michie, William||Mr. Eric Forth and|
|Proctor, K. Harvey||Mr. Tony Marlow.|
§ Whereupon MR. DEPUTY SPEAKER declared that the Question was not decided in the affirmative, because it was not supported by the majority prescribed by Standing Order No. 36 (Majority for Closure).
§ Debate to be resumed on Friday 20 February.