§ 3 p.m.
§ Lord ALLEN of ABBEYDALE rose to move, That this House takes note of the Report of last Session of the Select Committee on a Bill of Rights (H.L. 176, 1977–78). The noble Lord said: My Lords, may I begin by recalling that on 3rd February last year the noble Lord, 1302 Lord Wade, moved the Second Reading of a Bill of Rights Bill aimed at incorporating into our domestic law the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to give it its full title. A copy of that Bill, which includes the text of the convention and of the various subsequent protocols, is in the appendix to the report we are discussing today.
§ In the debate on 3rd February the noble and learned Lord, Lord Hailsham of Saint Marylebone, moved an Amendment to the effect that the Bill should be read a second time but that it should not proceed further until a Select Committee had considered whether a Bill of Rights was desirable and, if so, what form it should take. He said that he feared that if the Bill followed an ordinary course it would disappear into the sands and just go away, whereas in his view—and I think that the truth of this is incontrovertible —this is a subject which will simply not go away. The House accepted without a Division that the appropriate course was to set up a Select Committee with the dual remit suggested by the noble and learned Lord.
§ I listened to that debate with great interest, blissfully unaware that in due course I should be asked to serve on the Select Committee; but so it was. The Committee was appointed in May 1977, and after holding 17 meetings straddling two Sessions it reported in May of this year. Let me right at the outset put it on record that, as the House will be well aware, the Committee answered the second question put to it by unanimously agreeing that if there were to be a Bill of Rights it should be a Bill based on the European Convention, although we were also agreed that some changes would have to be made in Lord Wade's Bill, and that in answering the first question—that is, whether there should be a Bill at all—six of us said "Yes" and five of us, including the chairman, said, "No". But, although we ended by being almost equally divided on this basic issue, I think that my colleagues on the Committee will agree that it was quite a fascinating experience.
§ Apart from having to read a great deal —and it is certainly a topic on which a lot has been written—we were fortunate to hear a number of extremely impressive witnesses on both sides of the argument. 1303 I hope and believe that the Minutes of Evidence which we published in a separate volume throw some new light on some of the issues involved and represent a notable source of information and comment. I suspect that it may be a source of doctorate degrees in the universities of the Mid-West for some time to come.
§ Speaking entirely for myself, I now realise that some of the questions I put in the early days displayed a considerable lack of knowledge on my part, and I sometimes wish we could have started all over again, but I suppose this is inevitable in an inquiry of this kind. Among our witnesses, I should like to say one word of special thanks to the Northern Ireland Standing Committee on Human Rights. Their own substantial report, and the evidence which some members of the Committee gave to us, were of great help and of great interest. Not all of us agreed with the conclusions which the Committee have reached, but that in no way diminishes our appreciation of the help which we obtained from their review. I was glad to see the name of the noble Lord, Lord Plant, in the list of speakers this evening.
§ In view of the significance of the European Convention, I should like at this stage to say just a few more words about it. The United Kingdom signed the convention in November 1950, and it has been in force since 1953. It has been signed and ratified by all member States of the Council of Europe. Portugal, as it happens, was the last State to ratify, and has done so only this month, news of this debate no doubt having reached Lisbon just in time.
§ There have been a number of protocols since the original convention was prepared and we are among the countries who felt unable to subscribe to these protocols in full. I have particularly in mind the fourth protocol about freedom of movement. Just to glance at the convention and the protocols will show that they are drafted in a style very different from that favoured by our own Parliamentary draftsmen. It is not merely that the grammar is not impeccable—for example, the word "only "keeps appearing in the wrong part of the sentence—but, more seriously, the drafting is in the Continental style of 1304 rather sweeping generalisations. But as this is a point extremely relevant to the later discussion on Lord Wade's Amendment I shall not dissertate now.
§ The convention provides for a Human Rights Commission which decides whether a complaint is acceptable and, if it is, does its best to ensure an amicable settlement. But behind the Commission there is the European Court of Human Rights. This is the Court at Strasbourg, not to be confused with the Court at Luxembourg which is the Court of Justice of the European Communities—not that I would suggest for a single moment that any of your Lordships would dream of confusing the two. The convention provides that the Government of any member State may charge any other member State with a breach of its provisions. This country has had the experience of such a charge being brought against us by the Government of Southern Ireland and of our appearing in the Strasbourg Court in consequence. But, in addition, this country has renewed from time to time its acceptance of the right of individual petition to the Commission, and possibly thereafter to the Court. We have had experience of this too; notably in the fields of immigration and of prisoners' rights and criminal justice, whether in the Isle of Man or on the mainland. It is also fair to say that it looks as though in the coming months we are quite likely to add considerably to our experience in this context.
§ The United Kingdom is, I think, the only signatory which has neither incorporated the convention into its domestic law nor evolved a charter of fundamental rights as part of its written constitution. We shall no doubt hear a good deal more about that as the debate proceeds. But, contrary to a fairly widely held belief, and certainly contrary to the initial belief of the chairman of the Select Committee, the statistics show that, so far, it is not true that in proportion more cases go from this country to the Commission than go from other signatory countries.
§ I thought it right to dwell a little on the European Convention, in view of its absolutely key position in any possible legislation, but I should like now quickly to go on and pick out three other fairly general points which help to make up the background of our discussions. The first is that, despite the differences of view on 1305 the Committee, there was no dispute between us as to the need to protect and advance human rights. We also felt that the record of this country in the protection of human rights was one for which we have no need to feel apologetic, even though a visitor from Mars, in the somewhat improbable likelihood of his being able to read our intellectual weeklies, might sometimes get a different impression. Indeed, we observed that some of the procedures followed by some of our fellow signatories, procedures which were perfectly acceptable under the convention —as for example relating to detention before trial—would not be acceptable here.
§ Secondly, again contrary to some suggestions put to us, we came to the conclusion on the information available to us that there was no obligation under the convention, in Article 13 or elsewhere, on a signatory to enbody the convention into its domestic law, and in our report we cited two judgments by the Strasbourg Court which seemed to us to confirm that there was no more than a requirement that the signatory's domestic law must measure up in all respects to the convention's requirements.
§ Since we reported, I understand there has recently been a third case, that of Klass and Others, where the judgment may prove to have some bearing on this issue. I say "may prove ", for certainly the reasoning of the Court and the implications of the judgment are well beyond my limited grasp, and I observed that the Court had no less than seven days of private deliberation before it eventually pronounced. It was a case referred by the Commission emanating from West Germany, and affected the German basic law and a statute made under that law; how far the judgment relates to a country like ours, which does not have a basic law and has the problem of entrenchment, to which I shall be coming shortly, and how far the relevant remarks were obiter, are all subjects which seem to me to call for study by the experts, and I rather expect the study may prove to be quite prolonged. Perhaps the noble and learned Lord on the Woolsack may have some further and better information when he speaks.
§ My third point is basic. We were in no doubt that our terms of reference pre- 1306 cluded us from considering a Bill of Rights as part of a new written constitution representing a totally new and comprehensive constitutional settlement. We had to look therefore at the arguments on the basis of our existing constitutional arrangements, in particular the sovereignity of Parliament. This meant that underlying all our discussions we had to take a view of how far, if at all, a sovereign Parliament can bind its successors.
§ On this basic issue of entrenchment we were greatly helped by a notable paper by our specialist adviser, Mr. Rippengal, which is the very first document in our volume of minutes of evidence, and I wish at this stage to say what very great help the Committee had from its specialist adviser throughout its deliberations, and from our clerk. As our report explains, this paper on entrenchment received backing from the most eminent authorities, although it is only right to say that the noble and learned Lord, Lord Hailsham of Saint Marylebone, had some reservations which I think it is fair to describe as being rather marginal. The issues are discussed in some detail in our report, but in view of their great importance I think I should say briefly what our broad conclusions were.
§ They were, first, that there is no way in which a Bill of Rights could be made immune altogether from amendment or repeal by a subsequent Act. Secondly, no formula of the kind used in other countries with a written constitution, as for example requiring a two-thirds majority in the House of Commons for any Bill seeking to override a Bill of Rights, would be effective in the United Kingdom. Thirdly, Section 2 (4) of the European Communities Act 1972, which is undoubtedly intended to operate on later as well as on earlier Acts, is not a precedent for maintaining that power could be taken in a Bill of Rights to control the contents of later Acts. Fourthly, although we have suggested in our report a possible interpretation provision to the effect that in so far as a later Act could be construed in a way that was compatible with a Bill of Rights, that construction should always be preferred to one that was not compatible, nevertheless the fact would remain that if the later Act simply could not be reconciled with the Bill of Rights, the later Act would prevail, 1307 and that would be true whether the incompatibility was express or implied. Fifthly, the main scope for a Bill of Rights would therefore be to operate on our existing law.
§ That, then, is the sort of background against which we tackled the two separate but interlocking parts of our remit. As regards the second question in our remit, I have already explained that we were all agreed that, if there was to be a Bill of Rights, it must be one based upon the European convention. That convention, which was drawn up after the war mainly to guard against any recrudescence of Nazism, can certainly be criticised; but to contemplate drawing up a totally new code opens up a prospect of almost endless argument and counter-argument, and anyway at the end of the day we should still be parties to the European convention and bound by its provisions, and to introduce yet another code to operate alongside would make for chaos.
§ But the Committee were also agreed there would have to be some changes, as I have mentioned, in the Bill introduced by the noble Lord, Lord Wade. It would follow from what I have been saying about entrenchment that Clause 3 of that Bill, which deals with conflict between the convention and subsequent enactments, would not do as it stands, and there is a whole range of other issues which would have to be thought about. Would it be appropriate, as Lord Wade's Bill did, to include the whole text of the convention and protocols, including the articles about setting up the Commission and the Court? Should there be included any specific provision about remedies, a matter on which Lord Wade's Bill was silent? Should the way be open to seek injunctions against the Crown in respect of breaches of the legislation? Should there be express provision on whether complaint could be made against private individuals and corporations? Should something be laid down about the weight to be given by our courts to decisions of the Strasbourg Court? What exactly should we put in about derogation?
§ We attempted an answer to some of those questions, but altogether they add up to quite a formidable list.
§ Finally, there is the first part of our remit, the question with which we all 1308 started: should there be a Bill of Rights at all? This is the issue raised fair and square by the Amendment which will occupy the rest of the debate, and I shall say no more about it at this stage, save to remind noble Lords that in paragraphs 32 and 33 of our report we attempted to summarise the main arguments, as we saw them, on both sides. No doubt we shall hear much more about these arguments and perhaps some others, too, as the debate proceeds.
§ Before I sit down, I should like to say that the fact that the Committee were so evenly divided on the main part of their remit, after very full discussion and after hearing a great deal of evidence on both sides, perhaps demonstrates that this is an issue on which any group of open-minded individuals are likely to form genuinely different conclusions. However, I believe that on whichever side any of us came down in the end, none of us in the Committee believe that the arguments pointing the other way were without some validity. I am glad that the noble Lord, Lord Wade, is moving his Amendment this afternoon, and it will be of great interest to see how far the divided views of our small Committee prove to represent a microcosm, as it were, of the views of the whole House. At all events the Members of the Committee hope that their findings, set out as briefly as we could manage it in a modest 53 paragraphs, will have been of some help in enabling noble Lords on all sides of the House to come to a view on these important, but far from straightforward, issues. I beg to move.
§ Moved, That this House takes note of the Report of last Session of the Select Committee on a Bill of Rights (H.L. 176, 1977–78).—(Lord Allen of Abbeydale.)
§ 3.22 p.m.
§ Lord WADE rose to move, as an Amendment to the above Motion, at end to insert ("and urges Her Majesty's Government to introduce a Bill of Rights to incorporate the European Convention of Human Rights into the domestic law of the United Kingdom in the form recommended by the majority of the Select Committee"). The noble Lord said: My Lords, I rise to move the Amendment which stands in my name on the Order Paper, but first I wish to say 1309 how greatly indebted I am to the noble Lord, Lord Allen of Abbeydale, for presenting the report with such clarity, and for chairing the Select Committee. I know that I am speaking for all Members of the Select Committee when I express our gratitude for the painstaking and conscientious way in which the noble Lord, Lord Allen, performed this task—and it was quite a formidable task. I also wish to express my thanks to Mr. Vallance White, the clerk, for his great assistance.
§ In some respects the procedure that we have followed is unusual, as the noble Lord, Lord Allen, pointed out. The House did not follow the normal process of a Committee stage on my Bill on the Floor of the House. A Second Reading was given on the understanding, and subject to a proposal by the noble and learned Lord, Lord Hailsham of Saint Marylebone, that the Bill should go to a Select Committee, and with that I fully concurred. In that way it was possible to have a very much wider examination of the subject, and the Committee were able to consider not only my Bill but also possible alternatives. A great deal of evidence was taken, both oral and in writing. As to the conclusions of the Committee, I think it was wise not to attempt any vague compromise. I think it was right to state quite clearly that on one vital point the Select Committee were divided. In effect, the Committee decided that, if there was to be a Bill, it should be on the lines of the Bill which I had introduced; but on the major issue as to whether there should be a Bill of Rights the Committee was very nearly equally divided—as nearly as 11 can be divided without cutting one Member in half.
§ So we come back to the House to ask it to make this vital decision, and I believe it is a very important decision that has to be made. The purpose of my Amendment is not to restrict debate, but to enable a decision to be made and a vote to be taken. It is scarcely necessary to explain that this is not the Third Reading of a Bill, with a number of Amendments to consider, although there is one change of substance to which I shall refer in a few moments, and to which the noble Lord, Lord Allen, has referred. The point at issue is whether there should be a Bill of Rights at all. Five noble Lords were against such a Bill and six were in favour. For the record, those in favour were Lord Blake, Baroness 1310 Gaitskell, Earl Jellicoe, Lord O'Hagan, Lord Redcliffe-Maud, and myself. It is no disrespect to the rest of the Committee if I do not go on reading names. I should like to make it quite clear that I acknowledge that the chairman of the Committee came down on the other side to mine, among the five. The Amendment—it has to be put in the form of an Amendment— asks the House to express its agreement with the majority for the Bill. A vote for the Amendment is a vote in favour of the view of the six who are for a Bill of Rights. I hope that that does not sound too complicated.
§ Before discussing the Amendment there arc two observations that I wish to make by way of preface. I have some hesitation in using the word "preface". A good many years ago I was told by someone about a great speech made by Mr. Gladstone. According to my informant it was a very large gathering, and after Mr. Gladstone had been speaking for an hour he paused and said, "Gentlemen, that was my preface", and he then embarked upon his main speech. So I am just a little chary of saying "preface "; but there are two comments of a prefatory nature. The first concerns my own personal opinion. I do not claim that a statement of principle such as that contained in a Bill of Rights is a substitute for having a truly representative Parliament. I can see the danger of a minority of the electorate under our present system electing a majority in the House of Commons, and that the Government then formed may force through, or attempt to force through, legislation of which the electors may never have approved. I see that danger, but the remedy lies in a reformed system of electing Parliament, and a Bill of Rights cannot by itself provide the answer. Nevertheless, I recognise that there is a growing feeling that certain rights and principles of a fundamental nature call for special protection. I think that that concept underlies the movement for some form of Bill of Rights, and I contend that one practicable step forward is to incorporate the European Convention into our domestic law.
§ The second point by way of preface is directly related to the report itself. As Lord Allen has explained, the Committee felt bound to consider the subject 1311 within the framework of the existing constitutional arrangements, and, in particular, the principle that one Parliament cannot bind future Parliaments. Some day we may have a different situation. If, for example, we adopt a federal system in the United Kingdom we may have to have a written constitution, or a partly-written constitution, and we may possibly have built-in clauses and some form of entrenchment. But at the moment we are dealing with the situation as it is, and we have a sovereign Parliament which cannot bind its successor.
§ Clause 3 of the Bill which I introduced into your Lordships' House dealt with future legislation, and it was considered by the Select Committee in the light of the comments which I have just made. My main object in introducing that particular clause, Clause 3, was to create some kind of alarm bell procedure whereby Parliament would be put on guard when legislation was introduced which might conflict with the European Convention. But I think there was an implied element of entrenchment. It is interesting to note that a number of the witnesses who were in favour of a Bill of Rights were prepared to accept Clause 3 without demur, but on reflection I felt that the revised wording proposed by the chairman and some other members of the Committee was preferable to mine, and this revised wording would not conflict with the principle of the sovereignty of Parliament. I therefore came to the conclusion that my Bill should be amended accordingly.
§ This subject is dealt with in some detail on page 36 of the report. I do not think it affects the question of a warning to Parliament—I think Paliament would be on guard against legislation which conflicted with the European Convention —but I accept that main alteration that was proposed. Incidentally, this change in wording which I accept has the effect of simplifying the issue before the House today. In the view of the Committee, therefore, if there is to be a Bill, then, subject to appropriate amendment, it should be broadly in the form in which it was presented in my Bill to this House. But the question, as I have already said, is whether there should be a Bill at all, and the purpose of the Amendment which 1312 I am moving is to propose that there should be such a Bill.
§ The arguments for the Bill are set out, as the noble Lord, Lord Allen, has said, on pages 30 to 32, and the arguments against follow. In fairness to those noble Lords who have honoured us by expressing an intention to speak in this debate, I do not propose to attempt to cover all the ground. However, I should like to draw attention to some of the arguments which I consider important. First, the Standing Advisory Committee on the question of a Bill of Rights for Northern Ireland, which reported in 1977, came out unanimously in favour of a Bill incorporating the terms of the convention into the domestic law. It is true that one of the members uttered a word of dissent—and this was written into the report—but that was on the point of timing. Mr. Cooper felt that we could not brook delay. But, subject to that, the Committee came out against a Bill limited to Northern Ireland. The Bill, they thought, should apply to the whole of the United Kingdom and not to separate parts of the United Kingdom, and with that I certainly agree.
§ Perhaps I may now turn for a moment to an aspect which I think is of particular interest to the legal profession. I do not believe that the Bill will limit Parliamentary authority or embarrass the courts. I speak with great respect to the very learned lawyers who are present today, but I should like to offer this opinion. When an occasion arises, courts in this country are quite capable of interpreting and paying regard to general principles, and that is one of the ways in which our laws have developed. Again looking to the past for a moment, I recall that when the Judicature Acts of 1873 onwards were passed they not only reorganised the structure of the courts but also provided that the principles and maxims developed in the Court of Chancery should be applicable to all our courts; and there were no insuperable difficulties in carrying that out. I think the result was undoubtedly beneficial. I do not want to press that analogy too far, but I believe that regard for legal principles is not a revolutionary idea.
§ Turning to the terms of the European Convention, which are a minimum, not a maximum, they are largely based on legal principles which have been developed 1313 through the common law in this country, using "common law" in its widest sense. British lawyers played a prominent part in drawing up the terms of the convention. The wording is at least in tune with the general principles by which we are, or should be, guided. Furthermore, the United Kingdom Government have signed and ratified the convention, and apart from the fourth protocol and one or two other secondary points they have ratified the protocols. So the only question, really—the basic question—is whether, in addition to ratification, we should introduce the provisions of the European Convention into our domestic law, and in my view it is reasonable that we should do so.
§ The last two points relate to the time factor and the international aspect. It is true that at present there is the right to take a complaint to the Commission and, eventually, to the Human Rights Court at Strasbourg; but it is a slow process. The Golder case, about the prisoner not being allowed to communicate with a solicitor, is often quoted, and that case took about five years. I think we have to accept the fact that it is a slow process. But the only alternative that I can see— alternative, that is, to embarking on this long road to Strasbourg—is that proposed in the Amendment; namely, that the complainant should be enabled to bring his case before a British court. I do not think there would be a vast influx of cases, but there would be some, indeed, who would benefit from that change. But apart from the convenience to complainants, one must take some account of the embarrassment which is caused by bringing Britain before the Human Rights Court from time to time. Those who wish us ill never fail to make use of the propaganda value. I believe that human rights are dealt with as favourably in this country as in almost any country that one can think of, although no doubt there are imperfections. I believe that our record on the whole is one of which we can be proud. I should like to see Britain playing a leading role in the movement for the respect for human rights in the world as a whole. It distresses me greatly to see Britain's willingness and her record in this respect damaged unnecessarily.
§ It is for these and other reasons that I hope the proposal in the Amendment which I am putting before the House 1314 will be upheld. As to the form of the Amendment, I am advised that, technically, it is worded as it should be. I hope the Government will take it on board, as is implied in the Amendment. Failing that, I could reintroduce the Bill with some Amendments and ask the Government for time. But, first, we must in any event ascertain whether this proposal and the views of the majority of the Select Committee, are approved by your Lordships' House. That is the basic issue and I hope that when the voting is taken it will be shown that the views expressed in the Amendment have received approval from a majority of Members of your Lordships' House. I beg to move.
§ Moved, as an Amendment to the above Motion, at end to insert ("and urges Her Majesty's Government to introduce a Bill of Rights to incorporate the European Convention of Human Rights into the domestic law of the United Kingdom in the form recommended by the majority of the Select Committee").—(Lord Wade.)
§ 3.41 p.m.
§ Lord O'HAGAN
My Lords, if I were a Member of another place—as I am not and, with luck, never shall be—and if I were speaking on this subject from this position in their Chamber, I might be tempted to say something partisan or of a Party political nature. But I do not approach this subject in this spirit; nor did I approach my work as a Member of a Select Committee whose report is now before the House in that spirit. I think that all of us who served on that Committee would agree that clash as we might—and did— on what should be done with the Convention we all shared a common dedication to the furthering of what I choose to call, in the words of the noble Lord, Lord Wade's original Bill:… the inalienable rights and liberties of the subjectwhich I much prefer to the trendy term "human rights", which is both woolly and off-putting.
We had the pleasure and privilege of having our proceedings presided over by the noble Lord, Lord Allen of Abbeydale. Whether it was always a pleasure for him I do not know, but he was a patient and hard-working Chairman and, in spite of the fact that his scepticism about the 1315 whole project seemed to increase as the meetings proceeded further and further, I think that for all of us who worked with him it was a very happy and contented "Peers' educational association" which benefited us, if no one else.
After that introductory comment, I want to make two complaints. I wish to complain about the form of the report, because I do not think it is of a kind which is really helpful to your Lordships. There was a majority view, yet this report is in the unprecedented form of facing both ways—a "push me, pull you "approach. I hope that it will not set a precedent. The other complaint is to the noble Lord, Lord Wade. I admire the persistence with which he has pursued this subject. Speaking for myself, and only for myself, I have every intention of voting for his Amendment if it becomes necessary to vote upon it. However, I do not think that the inference I took from his speech— that, because there was a majority on one side in the Committee, from that there should flow a presumption that your Lordships should be in any way bound— is something that we should encourage as a general view about the way in which Committee reports ought to be treated. The House must remain its own master and it can reject or accept a Committee report should it want to do so and whenever it may feel like doing so.
Apart from thanking those who worked for the Committee as well as those who were my colleagues on the Committee, I should like to say that I am not qualified in any way whatsoever to speak on this subject, as I have no legal training. Therefore, I propose to say exactly what I think—which will not take long but which may at least help those of your Lordships who think that what I have to say is extremely inexact to understand the sort of concern felt by those who are not experts when dealing with these intricate legal matters. This is a subject which is too important to be left to arguments about administrative convenience or what is practical in the short term in the way of adaptations to our legal system, if adaptations be needed so far as its procedures and practices are concerned.
I believe we are talking about a subject which is much more than technical. 1316 We are talking about a subject that is of special concern to British people. I say that deliberately because, having studied with some care the attitudes of peoples in other countries on the Continent of Europe, I believe that because we have had no violent revolutions for so long; because we have had Parliamentary government for so long; because we have not had a dictatorship and because we have not suffered under oppression by Government, the British citizen expects liberty and takes more affront at the interference of bureaucracy and the bumbledom of petty officials when they oppress his rights or liberties. While every member of the Council of Europe and all those who have ratified the convention are equally beholden to obey what is laid down in the convention, I think that now—at this moment particularly—there is an increasing anxiety in this country about the ever-encroaching arm of Government, local and national, and about interference of every sort by every type of body. As a layman, not as a lawyer, this is the basis from which I approach my view of what we should do with the European Convention on Human Rights.
Is there something now that is new in the social and political circumstances in this country which makes it important for us to take action after all these years? That is the question for me. My answer is, Yes, there are plenty of obstacles; there are plenty of difficulties. They have been set out in the report and they will be set out by the noble Lord, Lord Lloyd of Hampstead, I have no doubt. I cannot judge as to the precise merits of the objections that are made and made very cogently against the incorporation of this convention in our domestic law. I should like your Lordships to let the case be judged by the merits of the arguments on both sides and not merely by the technical obstacles that are raised. Whenever there is something that is necessary, there are always technical obstacles. Whenever there is something urgent, there are always administrative problems that make it difficult to get on with the job. When it comes to the inalienable rights of the subject—the purpose behind the Bill which the noble Lord, Lord Wade, has introduced— these minor and pettifogging obstacles 1317 have to be discounted if the overall target is still worth pursuing.
There are many difficult questions and I do not want to belittle the importance of them. There was the series of questions that were read out by the noble Lord, Lord Allen of Abbeydale, at the end of his speech. There is the question as to what is a private person or public body under the convention and how this would be resolved. There is the question of remedies. There are many weighty and difficult matters which we would have to act upon and for which we would carry responsibility as a country were we to introduce a Bill incorporating the convention in our own domestic law. But, let us try to find out the answers to these difficult questions. Let us keep the proceedings on the road; do not let us stop and say that the difficulties are insuperable before we have started to examine them.
I began as a member of this Committee with a totally open mind. There was no attempt made to influence me one way or the other, and those of us who happened to be members of the Conservative Party approached the matter, so far as I can make out when looking at the subject and the way we voted at the end, with a similarly sceptical frame of mind. We discovered that we agreed at the end; we did not start off from a position of agreeing at the beginning. This is very important because when this subject is being discussed and when this Convention is being examined, immediately the deepest political views come into play. The most fundamental of beliefs held by members of the Committee about what was most important in politics and public life came into action.
The subject of this convention goes right to the heart of a democratic and Parliamentary society. Therefore it is inevitable that there will be political overtones to our views on this subject. What I want to say on that score is very limited, but it is this: whatever the past may tell us about the attitude of the Judiciary one way or the other, and whatever the history of the social complexion and the origin of members of the Judiciary, that is a matter for the text books. The noble and learned Lord, Lord Gardiner, who, sadly, is not here today, read out a Who's Who in the debate 1318 previously in your Lordships' House to show the change in the way in which the Bench is now composed.
When other noble Lords in the Committee, as perhaps will happen today, expressed doubts as to whether our judges were capable of interpreting the convention—which itself was drawn up to a large extent by a lawyer named Maxwell Fyfe, of whom some of your Lordships may have heard!—I do not really accept that today our judges are incapable of taking a responsible part in the protection of fundamental liberties.
It may be that there are overwhelming legal and technical arguments against what I would join with the noble Lord, Lord Wade, in suggesting your Lordships do—which is to urge the Government on. There is one part of our report to which I should like to refer. It is paragraph 32(h). It is very brief, not of Gladstonian length. It is the conclusion of the arguments for incorporation:The incorporating Act, though not limiting Parliamentary sovereignty, would nevertheless be a continuing reminder to legislators of the international commitment undertaken when the United Kingdom government ratified the Convention. Indeed, the Convention seems likely to have far more practical effect on legislators, administrators, the executive, the judiciary and individual citizens as well as legislators if it ceases to be only an international treaty obligation and becomes an integral part of the United Kingdom law, guaranteeing the citizen specific minimum rights enforceable in the first instance in the United Kingdom courts".The noble Lord, Lord Wade, spoke of the Golder case and the long road to Strasbourg. I will not go into the arguments for and against, the amount of time, pain and suffering that might be saved by giving the individual citizen of our country the opportunity of taking his case through our own courts. That is a case for the specialists. I believe that it is a case to which your Lordships should listen and, unless there is a strong argument against it, I am inclined to support it.
I return to the point with which I started: is it impossible for this to be done, and could it not be of benefit to this country? The other week I was in Spain for a political conference. There were advertisements everywhere in the streets for the constitution. The advertisements said, "Vote for the constitution". This constitution has been worked out by a committee composed of all Parties in 1319 the Spanish Parliament and is now to be put to a referendum. After long years of non-parliamentary government the Spaniards have emerged. In that short period they have drawn up a constitution. Included in that constitution is protection of fundamental human rights in the terms of the European Convention and in the terms of the United Nations Declaration. If the Spaniards can do it in a few weeks and months, cannot we do it after all these years? It is not beyond our capabilities.
§ Lord DAVIES of LEEK
My Lords, may I ask a question? I am a bit old- fashioned; I have been around a long time. I was always brought up to believe that after a thousand years or more of struggle in our own pragmatic way we had arrived at a system of judgment and justice that was as good as any in the world. If we try to put everything down in the written word we shall never get anywhere. That has been the strength of our government. Therefore, are we being asked to abandon this now? We had one Lord Chancellor, Judge Jeffreys who was a Welshman—
§ Lord DAVIES of LEEK
The noble and learned Lord has jumped the gap before I got there—I was just going to say that. We have learned since then pragmatically. I am not so much in favour of all these written words.
§ Lord O'HAGAN
My Lords, I have no wish to link the name of Judge Jeffreys with the present noble and learned Lord who sits on the Woolsack, but as the noble Lord, Lord Davies, has asked me this question, it leads me on to what I wanted to conclude with anyway—
§ Lord O'HAGAN
That is to say that I am not asking your Lordships to cast away all this history, nor am I asking your Lordships to say that we have not built up a great tradition of legal history and precedents which is worthless. My Lord Chancellor ancestors, whose wings I can hear beating above me, would not allow me to continue if I were putting 1320 forward such a proposition. But what I am saying, and what I think the majority on the Committee were saying—although that must not bind your Lordships—is that the convention is part of international law. We are committed to it; it is binding on us; and we are obliged to be judged by it when we do something which is in default of it. This is sometimes shaming. Would it not be simpler and fairer for the British citizen to have the chance of making his complaint and having his case tried here by our own judges first, before it is necessary for him to take the second step, which he could always take, of going on to the European court?
My noble and learned friend Lord Hailsham said in his O'Sullivan Lecture on this subject that if this Convention of Human Rights were incorporated into our domestic law, it would not achieve great wonders and it would not "wash woollens "—I believe that was the phrase he used. I do not claim that it would achieve great wonders or wash woollens, make rivers flow up mountains, change day into night or vice versa. I think it would, however, be a minor, modest and useful improvement in the cause of basic human liberty and that is why I support it.
§ 4.3 p.m.
§ Lord LLOYD of HAMPSTEAD
My Lords, unfortunately, I must begin by offering an apology to your Lordships' House. I have a very long-standing public engagement which compels me to absent myself from your Lordships' House very soon. Therefore, I shall be deprived of the advantage of hearing many of the later speeches in this debate and also, if there be a Division, from participating in that Division. I also feel I should perhaps offer an apology to your Lordships' House for speaking at all in this debate, because we have had a considerable number of debates on this subject previously and I must confess that I have spoken, I believe, in all of them. Therefore, some of your Lordships will, perhaps somewhat wearisomely, have heard my views repeated, but I hasten to say that I shall try to avoid, if possible, repeating what I have said on previous occasions.
I should like to begin by warmly supporting the tribute paid by the noble 1321 Lord, Lord Wade, to our distinguished chairman who, although he ended up to my own personal satisfaction, by coming down on the side of the "Noes" in this report, nevertheless, as I think all of us who participated in that Select Committee's work would agree, conducted our affairs with admirable fairness and impartiality. He contributed greatly to the clarity and lucidity of the matters and the arguments which were ultimately presented in the report. I should like also to share in the tribute that he paid to our legal adviser, who gave us very great assistance on this not easy matter, and also to our clerk, who was of the greatest possible assistance.
I would venture to agree with at least one thing the noble Lord, Lord O'Hagan, said, which was that this is in no way a Party matter, and, I would hope, not even a partisan matter. We are all completely in favour of human rights. It is a matter of great importance in our society and in the world generally. The only difference in this matter is in relation to means. We are agreed on the ends: the disagreement is whether this particular means which is being offered, namely, incorporating the European Convention into our law, is really a sensible and appropriate way of trying to achieve a particular purpose—a purpose which many of us believe has already been achieved very well by our existing arrangements.
I have said that I will endeavour to avoid repeating arguments and points that I have made on previous occasions, but I should like to refer to our report in relation to this matter, because although we were not able to reach any resounding conclusions at the end, in view of the fact that we were virtually equally divided, I would think that the report was of some value, particularly in so far as it served to dispel a number of misconceptions.
One misconception—and perhaps this is rather a back-handed compliment to the report—was the fact that any notion that the objective of securing human rights by incorporating the European Convention into our law was a matter of deep public concern was totally dispelled. I venture to suggest that our report, so far as the public and the Press were concerned, was received with practically a deafening silence. We did in fact hold a Press conference on the day the report appeared 1322 and I am sorry to have to tell your Lordships that only one representative of the Press turned up. He happened to be Mr. Michael Zander, one of the most earnest protagonists of this proposal. He very politely put one or two questions to us at our conference. Then his report on the matter appeared the following morning in the Guardian, and I am bound to say that it contained one thing which I personally was able to agree with, although on most other matters I am afraid I have been unable to agree with him in this area. He reported in the Guardian that a majority of 6 to 5 hardly provides the impetus needed for so very major a constitutional change. Certainly, with that sentiment I would profoundly agree.
Other matters that were clarified by our report, I would suggest, were, first, that it was common ground that human rights are not better protected in other countries which have a code of fundamental human rights. On the contrary, we received much very well informed evidence to the effect that we in this country are far in advance of the European Convention. One of the most thoroughly informed practitioners in this area, Mr. Thornberry, went so far as to say that the incorporation of this document into the fabric of our law—and I am here quoting from his evidence—would retard rather than advance the cause of human rights in Great Britain".This is a man who devotes a considerable part of his professional life to dealing with human rights cases, including those taken to the European Commission and the European Court.
A further clarification was offered from the point of view of what are alleged to be existing defects in our law. Of course our law is far from perfect. I am in no sense complacent about it. But, by and large, what emerged was that the existing defects which the convention might put to rights were relatively trifling and marginal matters, and were matters which, in any event, were readily capable of reform already, generally by administrative, but certainly by legislative, means.
Many of these matters were matters which related to prison administration, and of course much play was made by some witnesses of the Golder case: one of the few cases which produced an 1323 actual decision against the existing state of the law. But it is interesting to notice in connection with that decision—which decided, roughly speaking, that someone in one of Her Majesty's prisons who wishes to bring some kind of litigation against the governor or against the prison authorities ought to be allowed instant access to a lawyer for this purpose, and our administration rules did not provide for this facility—that a learned commentator in the current number of the Law Quarterly Review, a gentleman, incidentally, who is certainly very much on the side of human rights, has seriously challenged, in an article, the reasoning underlying the decision in the Golder case. He points out that the decision seems completely to disregard the requirements of prison discipline and could indeed create very considerable difficulties which do not seem to have been adequately considered.
Nor, as indeed the noble Lord, Lord Allen of Abbeydale, pointed out, has any basis been established—though claims are often made by supporters of the Bill of Rights doctrine that such is the case— for asserting that under the convention relatively more claims are brought against this country than against other comparable countries. On the contrary, the figures show that, if anything, the claims against Germany have been more numerous than against ourselves, although the Germans have the full, total panoply of Bill of Rights legislation. Not only do they have the European Convention in their law; they have this most elaborate basic law, which sets out in a much more elaborate form than the European Convention itself, all kinds of fundamental rights. But notwithstanding that, there is just as much a flow of cases in regard to Germany as in relation to ourselves.
I venture to suggest that those who are making so far-reaching a proposal as this, in changing the structure of our legal system and our Constitution, have the onus very much on them to establish that there is a compelling case for doing this. If I may say so, I thought that my noble friend Lord Davies of Leek—I am sorry that he is not now occupying his seat— made a most telling intervention at the end of the somewhat impassioned address to your Lordships by the noble Lord, Lord O'Hagan. I make no criticism of its 1324 being impassioned, because this is a subject which for some reason arouses passion. But it seemed to me that my noble friend Lord Davies of Leek put his finger on the nub of the matter when he asked whether we have not, over a very long period— I think he used the rhetorical figure of 1,000 years—managed our affairs in this matter very well, pragmatically, in a way that has been a model for the rest of the world. He asked: What is the convincing case for jettisoning this whole approach and substituting for it a series of airy and high-sounding general principles and no one knows where they will lead us?
The noble and learned Lord, Lord Scarman, for whose views on every matter I entertain the very greatest respect, though I depart from him on this issue, was asked this very pertinent question by the noble Lord, Lord O'Hagan. Your Lordships will see it in the Minutes of Evidence at paragraph 813. He was asked:What will the average citizen gain by the incorporation of the Bill of Rights into our own law?The noble and learned Lord, Lord Scarman, replied that:In the sixth form he will be taught the Bill of Rights by heart, and he will get some idea of the principles of the law".I have no doubt that this is a worthy point, but I cannot help asking your Lordships to look at another page in the Minutes of Evidence, when a very distinguished Canadian lawyer, Professor Arthurs, was giving us an insight into what has been happening in Canada, as a few years ago they introduced into their law a somewhat similar Bill of Rights. He referred to the fact that the schoolchildren in Canada are given the Bill of Rights to take away and hang on their walls. But he went on to point out that it had had very little impact, and had not really changed the hearts of men or altered the current of affairs.
The noble and learned Lord, Lord Hailsham, himself, who has become a fairly strong protagonist of this desire for a Bill of Rights, told us in his evidence, which was most helpfully submitted to the committee, that, by itself, a Bill of Rights standing on its own would be only marginally worth the trouble and labour. That is as high as he put it. Indeed, he was the first to admit that what he was really 1325 seeking was a completely new constitutional settlement and the Bill of Rights, as he said himself, would have real value only in the context of such a settlement. That is another question and we are not discussing that this afternoon. It is an enormously difficult and complex question. I am not going to discuss it, and I do not think that anybody else is. All we are discussing at the moment is whether it is a good idea to incorporate the Bill of Rights into our law.
The noble Lord, Lord O'Hagan, told us that the objections made to it are but pettifogging objections. I hope that none of your Lordships who has not studied all the documents in great detail will run away with the idea that the objections raised by those who were opposed to this notion were formalistic and legalistic in character. Surely the objection, for example, that to introduce a Bill of Rights in this way would throw practically the whole of our law into a state of total uncertainty, is no pettifogging objection. It may be an unsound objection. In a moment, if I may, I shall indicate to your Lordships the reasons why it is far from an unsound objection. But, certainly, that is not the kind of objection which can be described as pettifogging. Nor is the objection— whether one agrees with it or not—that to introduce this kind of Bill into our law will be to transfer important issues of social policy from Parliament to the Judiciary. That is no pettifogging objection. That is something which goes to the root of our whole Constitution.
I cannot help feeling—and I hope it will not be thought that I say this with any disrespect, because I have the greatest respect for the sincerity of all those who urge this course upon us, especially the noble Lord, Lord Wade, whose sincerity is manifest—that this proposal is of extraordinary irrelevance to the real problems that beset this nation at this time. Being a lawyer myself, I am not averse to measures which may be of some benefit to my own profession, but I really do believe that the only people who will benefit from this change in law are the legal profession. It is fair to say in defence of the legal profession that it is not a reform that they are particularly seeking. Only yesterday, I received, as I imagine did other noble Lords, a document from the Law Society. It is an interesting document. The Law Society gave valuable 1326 evidence to us at the hearings of the Select Committee, but they reiterated their firm belief that this measure could only do considerable harm to our legal system and no good.
When I say that the only real beneficiaries will be the lawyers, I pray in aid the experience of the United States, which is so frequently prayed in aid by those who seek the introduction of this measure. Your Lordships may be somewhat startled to learn that in the past 15 years lawyers in America have increased in number from 296,000 to 462,000. In fact, no less distinguished a lawyer than the Chief Justice, Chief Justice Burger, is on record as having said:We may well be on our way to a society overrun by hordes of lawyers".Mr. Archibald Cox, who acquired fame as the special prosecutor in the Watergate case, expressing his alarm at these developments in the United States, said in a recent lecture:More and more litigation is conducted by civil rights organisations, by radical political associations and by law offices founded to stimulate community action".He continued:More and more, problems of government are being handled by federal courts as questions of constitutional law".Then he went on to say—
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, does it not occur to the noble Lord that the American so-called Bill of Rights is more than 100 years old and has not been amended recently, and that if this is cause and effect the effect has taken some time to develop?
§ Lord LLOYD of HAMPSTEAD
My Lords, I appreciate the intervention of the noble and learned Lord, but in that connection I cannot help being reminded of Mr. Michael Zander's remark: that, in his view, it would take our judges 200 years to adapt their minds successfully to the conduct of affairs under this new constitutional arrangement. It is fair to say that, in his evidence to the Select Committee, Mr. Zander reduced that period to 50 years. However, I am also reminded of the late Lord Keyne's remark that in the long run we are all dead.
We have a massive unemployment problem at the moment, but I should not 1327 have thought that the way to solve it was to encourage armies of lawyers and civil rights organisations to exploit every conceivable legal issue and thereby create a new civil rights industry. Some people may say that this is fanciful and could not happen here. I think that it certainly could happen here. There is a tremendous rise of militancy in all spheres of life and in all orders of society, and this is becoming increasingly manifest. Once the opportunity is provided and the appetite has been whetted, I am of the opinion that innumerable perfectly straightforward cases will be turned into endless battles over so-called human rights issues. And all this will be done at public expense.
If anybody seriously doubts the potential for totally undermining the certainty of our law by introducing a generalised measure of this kind, I would venture to advise him carefully to peruse the full and careful evidence which was submitted to us by Sir Henry Fisher, a former High Court judge and now the Master of Wolfson College, Oxford, who spelt out in considerable detail, in almost every area of the law, the very high measure of uncertainty that would be engendered.
As for the question of transferring from Parliament to the judges decisions of policy, I would respectfully suggest to your Lordships that this could do much to undermine our highly respected Judiciary. Perhaps I may be permitted to quote from the noble Lord, Lord Devlin, who wrote recently that the British have no more wish to be governed by judges than they have to be judged by administrators.
There is one final point that I should like to make and I hope it is one which will not be misunderstood. Sitting on this Select Committee and participating in its deliberations fully confirmed me in the view that, compared with other democracies, this country has nothing whatever to be ashamed of in the field of human rights and, indeed, that there is much in its track record of which it can be justly proud.
That brings me to my final observation, which is this: I feel that there is a tendency in this country—I am speaking only about things which happen in this country, not 1328 about things which happen in the Soviet Union—to get these matters out of perspective and to become a little obsessive about civil rights matters. We clamour for this freedom and that freedom, but all the time we remain somewhat unmindful of the responsibilities and the self-restraints which are necessary to be coupled with the exercise of rights in a mature democracy such as we can claim to be. We have, for example, the right to strike, which is widely bruited about at present. But how mindful are we of the need, when we grant such rights, to handle them responsibly so that people do not think that they can exercise these rights regardless of how they trample over the rights of others?
We have the same phenomenon with freedom of speech, which can be easily carried to excess. I would suggest that it is of far greater relevance to our present situation and the immense problems which face us to seek to teach the citizen that the granting of valuable rights imposes obligations to refrain from abusing them and to adopt a responsible attitude to the needs of the community. That, my Lords, is the catechism which I should like to see written on the wall. For my part, therefore, I remain unrepentantly of the view that this proposal will do virtually no good to anyone but will entail serious consequences which will serve only to increase our present problems.
§ Baroness GAITSKELL
My Lords, before my noble friend sits down, may I ask him this question. He was very scornful about the Canadian attitude to human rights. Is my noble friend aware that Canada is at the forefront of the human rights issue at the United Nations and in the world at large, and that Canada has asked more than once for there to be a Human Rights Commissioner at the United Nations?
§ Lord LLOYD of HAMPSTEAD
My Lords, I need only say to my noble friend Lady Gaitskell that I think anybody listening to what I said would have appreciated that I was in no sense denigrating the conduct of human rights affairs in Canada by Canadians. I was only remarking on the lack of educational impact that appears to have been created by the incorporation of a Bill of Rights into the structure of Canadian law.
§ 4.30 p.m.
§ Baroness ELLES
My Lords, so far we have had the privilege of hearing Members of the Select Committee speaking to your Lordships' House on the question of a Bill of Rights. So far as I can gather, I think that they have been carrying on their little in-fight very well. The score so far is two all. Surprisingly enough, I shall come down on the side of the noble Lord, Lord Lloyd of Hampstead, and I hasten to confirm the view of my noble friend Lord O'Hagan that this is entirely non-partisan and non-Party and in no way do I attach any blame to him for my views. However, I think it is true to say that in the report there are reasons for and against the inclusion of a Bill of Rights into our domestic law. These have been set out fairly and equitably in the report, but I find a remarkable lack of analysis on what to me is the crucial question in this matter, to which I could not find an answer in the report. Would or would not a Bill of Rights guarantee more securely and more adequately protection for the individual rights of the citizen? That is the question that we have to ask. If the answer to that question were to be, Yes, I would, of course, support such an introduction of the European Convention into domestic law. But for the reasons which I am going to put to your Lordships, I hope very briefly, I find that the answer is in the negative.
First, many countries, as we know, great and small, in their constitutions have bowed down to the formula of guaranteeing fundamental freedoms and the protection of human rights to their citizens. Particularly we are reminded of Commonwealth countries which have gained their independence since the war, and it would be foolish to deny that these rights have been guaranteed and secured to the peoples of these many countries. It would be invidious to spell out individual cases, but I believe many of us can think of many cases where the constitution has been both futile and useless. Similarly, we can turn to that great country, the USSR, which has just adopted in 1978 a new constitution. I turn to Chapter 7 of that constitution which is headed, "The Basic Rights, Freedoms and Duties of Citizens of the USSR "Article 39:Citizens of the USSR enjoy in full the social, economic, political and personal rights and freedoms proclaimed and guaranteed by the constitution of the USSR and by Soviet laws".1330 I will not take up the time of your Lordships by reading other articles in that constitution which in fact repeat in so many words articles from the international covenants. I think that would prove that a written constitution by itself is no guarantee of the protection of human rights of the individual.
The question of entrenchment seems to preoccupy the minds of a good many lawyers, but even if there were some mechanism by which Parliament could not pass Acts which would be contrary to the express provisions of a Bill of Rights, who would decide whether such Acts are or are not in accordance with the spirit and the letter of such a Bill of Rights? Would it not be for some higher authority with what might be termed some "hierarchical superiority", such as a constitutional court, or perhaps indeed the judicial committee of the Privy Council acting in a special capacity to interpret the meaning of the Bill of Rights and such new legislation as may come before Parliament? Surely if we are to discuss the introduction of a Bill of Rights it is not very wise to have in your terms of reference that you are not able to discuss whether or not you are going to set up a constitutional court, because if you are going to have a Bill of Rights somebody has to see that that Bill of Rights is respected and observed. Indeed, when I looked in the report to see what kind of scrutinising machinery would be available, I turned hopefully to paragraph 46 which said that a Parliamentary committee might be the appropriate means, but I will not continue to read that. I turned then to paragraph 47, which says:The Committee was sceptical of the usefulness of a Parliamentary committee".That is not particularly helpful either as a recommendation to your Lordships as to whether or not there should be a Parliamentary commission.
Thirdly, as has already been mentioned, the wording of all Bills of Rights, including the European Convention, are notoriously vague and are interpreted in accordance with the legal and cultural traditions of the region and the contemporary scene and the political scene. Indeed, we have a legal obligation already to observe the provisions of the European Convention, but we do not in fact observe all the provisions. But we also have a duty to observe the provisions of the United 1331 Nations International Covenant on Human Rights. Again, in fact we do not observe all the provisions and articles of these covenants, and in any case the provisions of the one set of covenants are not identical or similarly worded to the European Convention. We have only to think of the clauses on limitations and restrictions of the rights set out in these various human rights documents, as well as the provisions allowing for derogation which are open to very wide interpretation and indeed would be a considerable onus on the Government to decide at what stage one would apply derogation. In fact, any of these could defeat the purposes intended by the introduction of the provisions of the European Convention into domestic law.
Fourthly, let us remember that the European Convention is only confined to civil and political rights, but what about economic, social and cultural rights? Nowadays they are of comparable importance in the contemporary world. Surely, if we are going to introduce legislation or a Bill of Rights which covers civil and political rights then equally economic, social and cultural rights should be protected in a similar manner. Let us remember that under our obligations under the International Covenant on Civil and Political Rights we have ratified the optional protocol which enables an individual to make a petition to the Human Rights Committee of the United Nations. Similarly, of course, under the European Convention an individual—so far as the United Kingdom is concerned— has the right to make a petition to the European Commission. If a European Convention was introduced into our domestic law to whom should the individual turn—to Strasbourg or to New York? That is a crucial question. As the noble Lord has already pointed out, these are not pettifogging details; these are matters which directly affect the individual citizen.
Fifthly, the European Convention lists rights of citizens which must be recognised and respected by the State. This implies not only Acts of Parliament. There is always this emphasis on Acts of Parliament which must be in conformity with the provisions of the Convention, but more important for the citizen it is the administrative measures and practices which flow from these Acts which must be 1332 in accordance with both the spirit and the letter of the provisions of the Convention.
I will give just one instance, and I say this on behalf of my noble friend Lady Masham of Ilton, who was not able to remain here. There is considerable worry that no consideration is being given to the special rights and needs of the disabled—a group in society who need special privileges and who have special needs. These should all be considered within the human rights questions, particularly the economic and social rights. Yet these would be ill-considered and completely left out by introducing the European Convention, because I believe that, by the emphasis on civil and political rights, the others will be neglected and not given their proper importance.
Also, there is the question of the citizen being able to have a means of redress where there has been abuse of power or where the State has acted against the rights of the citizen through its agents, officials or servants. This is one of the fundamental reasons why, in a Socialist State which claws under its authority more and more matters affecting the individual citizen there is required stronger protection and guarantee against State intervention. Let us remind ourselves that the more legislation that is introduced, the more administrative tribunals are set up under the laws, and there is very little control as to the outcome of their decisions. I do not want to pick out any particular findings which have been made recently, but we only have to remember some of the decisions on unfair dismissal coming out of industrial courts to wonder whether these really are being made in accordance with natural justice, which I believe is meant to be the guiding principle of these tribunals.
I shall not take up time reading out many of the aspects where there will be conflict, where there is denial of the human rights of the individual in accordance with the European Convention. There is the question of privacy under Article 8. We only have to think of about 88 rights of entry which the Government have accorded to their state officials and agents in this country. Surely here is an area where protection for the individual is needed. There is considerable doubt about the new Bill on education which we understand is to be introduced, under 1333 which parental choice as to the type of schooling for their children is to be deliberately denied. Would the introduction of a Bill of Rights in fact prevent either of these particular violations? Of course it would not, because the mechanism is not there to do so. The Government would still pass its legislation, even though it had, for instance, only 29 per cent. of the votes, and nobody would be able to stop such legislation from being passed. This, I may say, in fairness, would apply to any Government, not only to the present Government.
Again, we have the question of freedom of association. Surely the Bill of Rights would not have the effect of repealing the Trade Union and Labour Relations Act, but there is nevertheless very real concern— and I do not say this in any Party spirit— in the case of the railwaymen who were sacked because they refused to join the union that this is a violation of the right to work, and indeed within the terms of the European Convention a violation of the freedom of association. This is an example of a matter of interpretation. Who would interpret these particular provisions?
We can all think of many other instances which would, I believe, shock and horrify a majority of the people of this country, a country where actions are taken, both administratively and by Act of Parliament, which do violate the individual rights of citizens. Similarly, I mentioned the question of administrative measures. I think many people on all sides of the House and in the country as a whole are very shocked when they read of the conditions experienced by people who are remanded in the same prison as those convicted as criminals, though a right to be presumed innocent of a criminal charge until proved guilty is part of our own law and part of the European Convention on Human Rights. I again raise this as a matter which I think is one which shocks many people in Britain, but it would not be cured by the introduction of a Bill of Rights.
So, my Lords, I reach the conclusion that it becomes evident that, unless and until a system of administrative law is developed in this country in order to protect the citizen from State encroachment on his fundamental freedoms and from State abuse of his fundamental rights, there will be no means of guaranteeing 1334 the protection of the individual. This, I repeat, would apply in the case of any Government because, as Montesquieu said—I believe, rightly—Whoever has power is tempted to abuse it".Such a Bill of Rights will only be effective when there is less repressive legislation, and, indeed, less legislation, and when there is the right to redress from this oppressive legislation or any legislation which may affect an individual right, and from any malpractice by administrative and executive bodies. There must be available to the citizen easy, simple, cheap and equitable means of redress for any violation of these rights. I believe that there are many measures that this country could take and would be willing to take to protect the rights of its citizens, but I do not believe that these particular problems will be solved by the simple introduction of a Bill of Rights.
§ 4.45 p.m.
§ Lord REDCLIFFE-MAUD
My Lords, if I may follow on what the noble Baroness, Lady Elles, has just been saying, she asked earlier in her speech what advantage the individual citizen would get by the acceptance of Lord Wade's Amendment to this Motion and the incorporation of the European Convention into our United Kingdom domestic law. I am sure she will remember the first of the arguments set out in the report in favour of the incorporation, and if I may just remind the House it was this:The individual citizen might be better off, and could not be worse off, if the European Convention were made part of United Kingdom law since, in the event of conflict between the Convention and other provisions of United Kingdom law, whichever was more favourable to the plaintiff would prevail".The noble Lord, Lord Lloyd of Hampstead —I am sorry he cannot be in his place— has given very close attention to qualifying that absolute statement (which I may say is almost a quotation from Sir Henry Fisher, to whom Lord Lloyd referred) by saying that it is not true that the individual citizen would necessarily be better off if the convention were incorporated because of the new uncertainty, the spanner in the works that would be thrown into our legal system, and the consequent need to consult lawyers on so many points. But I suggest to your Lordships that you cannot get away from the fact that is 1335 stated in that first section of the arguments in favour.
In my opinion, at any rate, the case for incorporating the convention is precisely to overcome the difficulties to which the noble Baroness, Lady Elles, drew attention. If the convention were part of our English law, anybody could to go any of our English courts and would be able there to have a judgment which might do him no good but could not do him any harm, because the convention only guarantees, as it were, a minimum; the only test in any such case of conflict would be, does the Convention guarantee something more than the rest of United Kingdom law?
§ Baroness ELLES
My Lords, I am grateful to the noble Lord for that exposition, but would not he think that his final suggestion would be rather a waste of time and very expensive?
§ Lord REDCLIFFE-MAUD
My Lords, it would not be as expensive as the situation is today. Mr. Golder has been referred to and I have no doubt your Lordships are all aware of his case, but let me remind the House that, apart from the facts which Lord Lloyd of Hampstead mentioned, Mr. Golder took five years to get a decision in his favour out of the Strasbourg court.
In simplest terms, I have been persuaded to change my mind on this issue. I entered the Select Committee with the open mind to which the noble Lord, Lord O'Hagan, referred, and which all of us brought to it—though it was sometimes evident that some people had a fairly clear idea of what their answer was before we heard the evidence. But certainly in my case, as an unlearned Lord totally unskilled in the law—and therefore now speaking to your Lordships without any qualification, in the same category as the noble Lord, Lord O'Hagan—I came with a strong prejudice against Bills of Rights.
When I was High Commissioner in Southern Africa and involved in the drawing up of constitutions for Basutoland, which was shortly to become the independent sovereign State of Lesotho, for Swaziland and for what is now Botswana, I had no great hopes that the Bill of Rights, which we did in fact draw up and which was incorporated in the new, constitutions, would be of great assistance to the individual citizen. There are so 1336 many let-out clauses in many sections of any Bill of Rights which allow a derogation from the general right—in circumstances, for example, of national emergency, and so on—that I doubted very much whether it would prove to be of great assistance in the future to the individual citizen or to the liberties of Lesotho or Botswana. But as we heard the evidence in our Select Committee, some of those who were most powerfully advising us against incorporating the convention into United Kingdom law drew attention to one example after another of where, in their opinion, doubt would arise whether the present United Kingdom law was or was not in conflict with the obligations that we undertook to honour in signing the convention.
I think that the phrase "Bill of Rights" as the noble Lord, Lord O'Hagan, suggested, is not a very happy one. In fact, if we do incorporate this Bill of Rights I shall regard it much more as a Bill of duties—the duties of the Government, the State, the Judiciary, local government and the ordinary citizen to ensure that the rights of individuals are respected—than as a guarantee of rights which the individual can perhaps irresponsibly accept and abuse. I have changed my mind because the more evidence we heard the more clear it became to me that no one in the United Kingdom has any right to be complacent. However much we admire our system of justice and regard it as superior to that of any other country in the world, no one has a right to claim that in all respects the law and administrative practices of this country at present guarantee to the individual citizen the rights which the convention guarantees. When this country signed and ratified the convention it undertook that within the United Kingdom every individual citizen would have the rights set out in the convention. That I find increasingly doubtful. Without accusing anyone of complacency, I do not think that anyone could have sat through the evidence that we received from lawyers whose conclusions fell on both sides— some thought that we should incorporate the convention and some, like Sir Henry Fisher, thought that we should not— without thinking that there was no room for confidence that United Kingdom law and practice honoured our international commitment.
1337 The historical fact of whether it conformed in 1951 is perhaps beside the point. However, at that time we accepted and ratified the convention on the understanding that the law, as it was at the time, did not need amendment. Parliament was not asked to pass any legislation in order that the Crown might be able honourably to accept the commitment. If it had then been thought that there was any part of our existing law or administrative practice which fell below the standards set by the convention, we could not have signed the convention without obtaining from Parliament an amendment of such law. But, whatever the position may have been 30 years ago, I do not think that any of us can now put hand on heart and say that at present we are confident that we are honouring our Treaty obligation to the world in respect of that Convention on Human Rights and Fundamental Freedoms.
It is true that in our report we are quite frank in saying that we had no evidence that things were particularly bad here or any better in any other country, but that was largely because we did not seek it— we did not take evidence from other countries. Nothing in our report should be taken as proving that our position is as good as or better than that of other countries in Europe, and certainly it cannot be taken as suggesting that all is well in our own house. It is that uncertainty which was the primary reason for my conclusion that there might be something in this Bill of Rights and that we must look closely before rejecting it.
The second reason was touched on by the noble Lord, Lord Lloyd of Hampstead, who drew attention to the one person who attended the Press conference when the Select Committee launched its report, and the deafening silence which greeted our quite hard work over 18 months. The reason, in my opinion was that very few people in this country have any idea of what is contained in the convention or that in 1950 this country acceded to it and guaranteed all those rights to every citizen in this country under our law. It is for the "educational"purpose therefore that I find myself drawn to thinking that to incorporate the convention within our own law would do positive good. Let us not be too frivolous about the answer of the noble and learned Lord, Lord Scarman, to the question of what good would it do. 1338 Spreading knowledge of the convention to ordinary citizens, and especially to children, alone will enable people who will eventually elect the Parliaments of the future to have respect for human rights. We all know that for there to be a full respect for human rights the political climate must be right; it must be such that people insist on having human rights and will not see them flouted.
If I may speak personally for a moment, I was the chief hack in the Education Department when the convention was ratified in Britain. For eight years after 1950 I was a hack there or at another Department. I must be honest and say to my shame that I had no knowledge at all of what was in the convention, or that we had ratified it, until I became a member of your Lordships' Committee. It might not have made much difference in the Department of Education, but it might have done so: education is one of the points as regards which we have not ratified one of the protocols to the convention that have since been passed.
The noble Lord, Lord Allen of Abbey-dale, did great work as Permanent Under-Secretary at the Home Office, but it is absolutely wrong that only he, for example, should know about the convention. Of course he knew about it and he had a great deal to do with ensuring that the regulations that were issued by his Secretary of State were in conformity with it. But every civil servant in Whitehall and certainly every Permanent Secretary ought to know what the convention contains, in case it is relevant to his own work. Equally I suggest that it will be very important if an Assembly is set up in Scotland or Wales that those who legislate and work—in administrative or other capacities—for those devolved Assemblies should be aware of the international commitment which is, of course, as binding on those Assemblies as on any one of us in your Lordships' House. In local government too, at every point, especially if we take the education authorities as an example, it is essential that the elected members, the staff and officers who execute the work—to some of whom the noble Baroness, Lady Elles, referred— should all be aware of our commitment to the convention. That is why I call it a Bill of duties of the State and all administrators, as well as a Bill of Rights of the individual.
1339 There is no doubt that a great deal of the criticism of the incorporation of the convention into United Kingdom law is that it will pass over to the courts and treat as justiciable questions which traditionally have not been thought to be justiciable and have been settled by Parliament rather than by the courts. This is a serious question to which I wish to refer only briefly. It seems to me a gross exaggeration to say, as set out in the arguments in the report against incorporation, that to incorporate the convention into United Kingdom law would be to do something "in a form totally different from and indeed incompatible with existing laws".
I am sorry that the noble Lord, Lord Lloyd of Hampstead, is not here to make me sit down and tell me that I am wrong. However, I do not think there is anything incompatible with our laws and with the traditional function of the Judiciary in incorporating the convention into our domestic law. It is perfectly true that the Judiciary would be asked to take some decisions in areas which, at the moment, Parliament has not yet covered. If those decisions seem to Parliament to be mistaken, there is nothing to prevent Parliament from changing the law. It is part of our tradition that Parliament should change the law so that in future the courts will be in no doubt how Parliament wishes such cases to be decided.
Equally, there is no question of Parliament suspending its normal process of specific legislation on particular subjects. That can of course continue. Indeed, if a Bill of Rights is incorporated in United Kingdom law it will give some degree of encouragement to Parliament to find time to legislate in areas covered by the convention and not yet covered by specific legislation. To say that it will effectively transfer legislative policy in respect of free speech, freedom of association, privacy, obscenity and so on from Parliament to the Judiciary is, I suggest, simply not true.
Finally, it has been suggested that, because the Standing Advisory Commission in Northern Ireland has strongly recommended that the United Kingdom should incorporate the convention, this is a case of proposing that the tail should wage the dog. It is nothing of the kind. On general grounds we must judge whether or 1340 not the convention should be incorporated in United Kingdom law, but we now know that in the opinion of that Standing Commission, which went very closely into the whole question and produced a unanimous report, incorporation would be in the long-term interest of Northern Ireland. And none of us in this House would wish to refrain from doing anything which could help the long-term interest of Northern Ireland.
In conclusion, it seems to me that we would be right to vote clearly and strongly in favour of the Amendment in the name of the noble Lord, Lord Wade, to incorporate the European Convention of Human Rights into our domestic law. If we believe that England and Britain are increasingly to become a part of Europe, and if our awareness of the European dimension is to be increased, that is a specially strong reason for incorporating the convention. If we want there to be wider knowledge and understanding of what this country has been committed to for 30 years and, most of all, if we want the individual citizen to have his opportunity of going to the courts of this country in the first instance and not having to take the long trek to Strasbourg, we shall vote for the Amendment.
§ 5.4 p.m.
§ Baroness GAITSKELL
My Lords, it is a great pleasure to follow the noble Lord, Lord Redcliffe-Maud. However, first, I must thank the noble Lord, Lord Allen of Abbeydale, for his introduction to this debate and for all the courtesy and kindness that both he and his staff extended to us during the long sessions that we had upon this Bill. He was the perfect chairman. I can only prove this by saying that he kept me guessing almost until the end as to which way he really felt about the Bill.
I should also like to raise one point which the noble Baroness, Lady Elles, mentioned as regards a Bill of Rights. Of course, if we have a constitutional Bill of Rights, it does not mean that it is necessarily an immaculate thing. After all, the Soviets have one and many other countries where there are very few human rights have one.
I am not a lawyer. I was the woman outside; I was the only woman on this committee. However, I cannot claim that I came to the Select Committee on a Bill 1341 of Rights with a completely open mind. As the United Kingdom delegate on the Human Rights Committee of the General Assembly at the United Nations seven times from 1965, I have learned something about human rights. I learned that as the international legal order developed the contact between international law and the individual had grown increasingly closer. In fact, this century will be remembered not only for its scientific and technological miracles and for its population explosion, but also for the explosion of the concern for individual human rights throughout the world.
When the committee first sat I had not made up my mind, but as the meetings of the committee proceeded I saw the European Convention on Human Rights as an extension of the progressive concern for the protection of human rights in all its ramifications throughout the world. That finally convinced me that the incorporation of the European Convention— and I shall speak only about incorporation; I cannot understand the difficulties about a Bill of Rights following on; I wait to hear noble and learned Lords explain that— into our common law made good sense and would be an important, progressive and educational step.
I would go a little further. My experience in the United Nations and the relentless pleading from delegates representing countries where there are grave abuses of human rights—for instance, as under apartheid in South Africa—leads me to support many of the countries which are now sympathetic to the European Convention on Human Rights, and which wish to set up their own regional human rights bodies. Already, countries like India and Nigeria are in the forefront here, and I think that we should give them every encouragement and support in the United Nations.
I am an unashamed fan of the noble and learned Lords, Lord Hailsham of Saint Marylebone, Lord Scarman and Lord Gardiner, whose language on this issue, I am able to understand. It is very difficult to understand the esoteric language of lawyers; I find it almost impossible. Lawyers have a quite esoteric vocabularly. The two lawyers who have written in clear and simple language that I can understand and can follow are Michael Zander and my friend, Anthony Lester.
1342 Finally, I react to the noble and learned Lord, Lord Scarman, with grateful relief when I read his words. In a note which he presented to the committee he said:If the European Convention were to be incorporated, I would expect the courts to develop by case law the general principles declared in the European Convention".When the noble and learned Lord, Lord Scarman, states that this is the way in which English courts have handled the common law for centuries and the way in which the United States federal courts have used their Bill of Rights, I understand what he is saying. I do not believe that in this day and age judges should be concerned only with the skeleton questions of law and remedies, and be unconcerned with the ethical, social and economic implications of their decisions. This would eventually produce what I would call a clockwork Judiciary, more and more oblivious of the flesh and blood of the human rights issues.
Parliament in all its sovereignty is concerned with political questions. The observance of the rights and freedoms guaranteed by the European Convention are legal questions, as I understand them. These questions are now answered by the European judges in Strasbourg. Why should these questions not be answered in this country in the first instance? Why is it only possible for Ministers in Parliament to decide whether particular measures conform with the Convention? I must assume that it is because of the conservatism of the Judiciary, combined with the reluctance of all Members of Parliament to abrogate a vestige of their sovereignty in the interests of justice on human rights.
§ 5.12 p.m.
§ Lord SCARMAN
My Lords, having heard the noble Baroness, Lady Gaitskell, I think that really I have nothing further to add. Certainly I do not intend to detain your Lordships for very long. I would, however, as a witness before the Select Committee, like to add my tribute to the tributes of other noble Lords to the work of the Committee and to its report. The report is concise and well balanced—I confess a little too evenly balanced for my taste. I subscribe, to some extent, to the gentle criticism of it made by the noble Lord, Lord O'Hagan, when he complains, as I understand it, 1343 that it is quite difficult to find in the report where they differed and upon what point they differed. It is, in fact, in two pages: one at the very end and one tucked away in an introductory chapter. But I feel that in that respect the report has certain of the qualities of those passages of the written law that some of us think might be made a little more intelligible.
Listening to this debate, there have really developed two main streams of attack upon the proposal that we should introduce a Bill of Rights into the law of this country. One—if the noble Lord, Lord Lloyd of Hampstead, who unfortunately is not in his place, would allow me to say so—is the complacent attack. "English law is marvellous. It has been marvellous for years. What are you devils doing tinkering with it?". I shall say no more than that I have no sympathy at all with that point of view.
The other stream of attack was that ably developed by the noble Baroness, Lady Elles. The way that she puts her case is, if she will allow me to say so, much more formidable. She says, "It won't do any good. Look at this, that, and the other unfortunate piece of legislation which has failed for one reason or another to safeguard our citizens' rights. Do you really think", she asks rhetorically, "that the enactment of a Bill of Rights in broad and general terms would have either prevented that legislation being as mischievous as it is, or would have led to different legislation?"
I see the force of that attack. I just say to your Lordships' House that on no account must you allow a spirit of frustration, or defeatism, to overcome you, because there are difficulties such as the noble Baroness pointed out in the way of developing the law in a sane, broad, and principled way. I would hope that the noble Baroness, with her legitimate— and I wholly agree with it—desire for reform of the administrative law, would come at last to see that you are not going to succeed in reforming administrative law successfully unless you give our legislators and our judges a broad base of fundamental principle upon which to build. It is that which, I suggest to your Lordships, a Bill of Rights could produce in our law, and it is that which is lacking.
1344 Let me digress. Noble Lords in this House, and many outside this House, have decried the Bill of Rights proposal because it would give more power to the judges, and some of us—of course not all of us—are shown to be "power hungry judicial officers". Nothing could be further from the truth. The case for a Bill of Rights is not to satisfy this, that, or the other class of public servant with more power: the only case can be, and must be, that it will increase the protections and safeguards of the fundamental rights and freedoms of the citizen.
Of course the courts play a part in that matter; so also do the other great arms of State power—the Executive, and the legislature. A Bill of Rights, if it came, would provide guidance and criteria for all the activities of the State, be they executive, legislative, or judicial. It is a travesty of the case in favour of a Bill of Rights to say, "Well, this would increase the power of the judges". It might increase the range of justiciable issues; it might not. But it is absurd to suggest that the judges would achieve more power merely because they were given criteria and principles by which to develop the administrative law.
My noble and learned friend Lord Diplock, in giving evidence to the Committee, said correctly that there have been great strides in administrative law in this country since 1950. So there have been, but those strides have been accompanied by certain critical comment: "Well, here are the judges making decisions on what sort of principle? What are they doing interfering with the Administration in this, that or the other?"
If you do not provide judges with principles which they can use as criteria in the field of administrative law, but if you still require, as inevitably you will, that the judges make decisions from time to time in that field, than the judge has to do what he thinks is appropriate in the circumstances and has to do the best that he can to formulate a principle. Is it not better that there should be a set of broad principles laid down by Parliament— because a Bill of Rights would be a statute enacted by Parliament—and there it would be, keeping the judges in order as much as the rest of us? Indeed, a young civil servant who was present at a gathering I addressed recently said at the end of it, 1345 "But, judge, you have not mentioned the real point in favour of a Bill of Rights." "What is that?" I asked, and he replied, "It would keep the judges in order." There was much force in that observation.
Let me explain briefly why I support a Bill of Rights. I support it for the reasons which commanded the unanimous assent of the Standing Advisory Commission on Human Rights in Northern Ireland. Their document, to which I pay tribute, is a most formidable and well-reasoned case. I will not quote from it but I ask noble Lords who are interested to look at it and particularly to read paragraph 6, in which they give their reasons in favour of a Bill of Rights.
But the note of dissent is of great importance to our country today and it leads me to the positive case which appeals to my mind in favour of a Bill of Rights. That note of dissent was by a member of the Commission who agreed of course that a Bill of Rights was desirable for the United Kingdom as a whole, but he believes that if the introduction of a United Kingdom Bill were to be long delayed, which appears likely, there was no reason why in the meantime a Bill should not be enacted for Northern Ireland, and here are the significant words:For centuries Great Britain has been in the fortunate position of having a system of government which has had the consent of all its citizens. This has not been the case in Northern Ireland. This is the major reason why considerations which have influenced the enactment of a Bill of Rights for Northern Ireland are different from those which should influence the enactment of a Bill of Rights for the rest of the United Kingdom".Let us not forget that we are no longer a homogeneous society such as we have been for centuries, but a plural society. We are no longer a society which can be divided, in the words of Gilbert, into little Conservatives and little Liberals. There is not merely in our society now a majority and a minority but lots of minorities. There are many cultures, many races, many religions and many languages. Every one of those minorities and every individual in each of them must have his basic civil rights protected by law, whether the minority to which he belongs is popular or unpopular, large or small.
We must legislate now not for the homogeneous society we have known for centuries but for a plural society, a society in which we hope we shall achieve unity 1346 amid variety; and if there is one lesson that history teaches us, it is that in a complex society, such as we are now becoming, whether that society be organised as a federation or not, it is necessary for the protection of minorities and for the individual members of minorities that there should be some broad statement of fundamental human rights, be it in a document called a Bill of Rights or in a constitutional document.
It might be said, and of course the complacent school would say, "We can take care of that in the way we have done it, developing it through judicial decision "—that is, through the common law— "and passing a statute when that becomes necessary". I hesitate to go into legal history and will only say that the common law, marvellous as it has been in developing safeguards for human rights in certain fields, never succeeded in tackling the problem of the alien, never succeeded in tackling the problem of the woman and never succeeded in tackling the problem of religious minorities, and it has in our day had to be supplemented by detailed legislation to ensure a measure of justice to racial groups.
The common law, being essentially a private law system—that is no criticism of the common law as such—has been quite unable to handle those problems, which are the problems of today. At the moment the judges have to struggle with statutes such as the Immigration Acts, the Sex Discrimination Act and the Racial Equality Act without any sort of guidance of principle. Of course the judges will make decisions which some people will think wrong; it is less likely they would if they were provided with some basic guidelines and criteria, and that is what a Bill of Rights would do—it would enable administrative law in a plural society to develop according to a set of principles which, having been enacted by Parliament, could be said to represent the will of Parliament.
Such, basically, is my position and I certainly cannot detain your Lordships with any argument in support of it. I am on record in various publications with the views I entertain and have sought to develop. Let me explain briefly why I agree strongly with the noble Lord, Lord Redcliffe-Maud, that we should now incorporate into our law the European 1347 Convention. It is of course not a perfect instrument—no legal instrument ever is perfect, and of course it has been about for a very long time—but any lawyer knows there is a developing jurisprudence in the Court of Human Rights in relation to the European Convention which is beginning to reveal that which some of us had appreciated many years ago, namely that the English common law, supplemented as it is by detailed and valuable statutes, does not secure to our citizens all the rights and freedoms which, under international law, we have now obliged ourselves to secure to them.
I will not mention privacy or prisoners' rights, matters to which reference has already been made, and they are important. Let me just tell your Lordships of a recent decision by the European Court of Human Rights in Klass v. The Federal Republic of Germany decided in September of this year. That was a telephone tapping case. Lawyers had had their telephones tapped because there was believed to be a national security risk in the activities of their clients. The lawyers brought their case to Strasbourg, having had it rejected ultimately by the Constitutional Court of the Federal Republic.
In the course of an extremely important judgment the European Court of Human Rights came to the conclusion, by looking very carefully at German law, that there was a right of privacy assured by German law, and that telephone tapping, except under rigorous safeguards laid down by law, was illegal. The Court then looked at Article 13 of the convention. Article 13 requires every contracting State—that includes the United Kingdom—to ensure that there are remedies in its domestic law before a domestic or national authority for breaches of the convention. That article was interpreted by the Court as meaning that it was the duty of each State—a party to the convention—to ensure that people could make a claim before a domestic national authority that there had been an infringement of the right guarded by the convention.
Just think about it for a moment, my Lords. The Federal Republic won that case because there were good constitutional rights available to the lawyers, and there was good machinery for adjudicating 1348 upon their claim that those rights had been infringed. What would happen in the United Kingdom if somebody complained about his telephone being tapped? It is very doubtful indeed whether he could fish out any provision in the telegraph or Post Office legislation which showed that it was illegal; and even if he could, where in the United Kingdom would he find a national authority set up to entertain his claim?
I come now to my last point. We are obliged by our international obligations not only to secure that right of privacy which the German lawyers were found to have under German law, but we are bound now by Article 13 to ensure that there is a national authority in this country able to entertain their claim and to give them redress. I tell that tale just as a little, but very modern, illustration of the necessity of getting our own house in order by incorporating into our law the European Convention.
I should like to conclude my speech with only one remark. The noble Lord, Lord Rothschild, in a very different context, quoted Spenser's The Faerie Queene, and said:Be bold, be always bold, but never be too bold".I say to the doubters with hearts in the right place—such as the noble Baroness, Lady Elles—be bold, always be bold, if you are to get a decent system of administrative law based upon principle. I say to the complacent school that we are not too bold in suggesting that we incorporate the European Convention into our law because, after all, all we are doing is suggesting that we should bring our law into line with our international responsibilities.
§ 5.35 p.m.
§ Lord PLANT
My Lords, I, too, want to pay tribute to the painstaking work of the Select Committee, and I should like to thank my noble friend Lord Allen of Abbeydale for his very kind comments about the Standing Advisory Commission on Human Rights in Northern Ireland. I also wish to thank my noble and learned friend Lord Scarman for his similar kind references to that Commission, of which I have the honour to be chairman. I want to pay tribute to the noble Lord, Lord Wade, whose pressure on this issue has been so much welcomed by the 1349 majority of people in this country who want a Bill of Rights. I note in passing that all the non-lawyers on the Select Committee voted for a Bill of Rights. I shall support Lord Wade's Amendment.
Just 12 months ago, the Northern Ireland Commission on Human Rights submitted to Parliament our report, Protection of Human Rights by Law in Northern Ireland. My Commission was set up under the Northern Ireland Constitution Act 1973 to advise the Secretary of State on discrimination in Northern Ireland. It is important to note that the Secretary of State, wrote on 14th January 1976 to the chairman of the Northern Ireland Constitutional Convention:The Government recognises that there is a consensus that there should be further legislation on human rights and will consider how best to make appropriate statutory provision in the light of the detailed study being undertaken by the Commission on Human Rights in Northern Ireland".This undertaking was given in the context of a possible constitutional settlement. I shall return to the issue of Northern Ireland problems later.
The O'Sullivan lecture by the noble and learned Lord Hailsham of Saint Marylebone, and his discourse on the elective dictatorship indicate the kind of concern which a number of people from all Parties have and which makes discussions of the value or desirability of the introduction of a Bill of Rights current and plausible. The Select Committee sets out the arguments for and against a Bill of Rights. No one will deny the value of ensuring compliance with the international obligations imposed by our ratification of the European Convention, which gives everyone within the United Kingdom the rights and freedoms guaranteed by the convention and provides effective remedies for violations of those rights and freedoms by public authorities.
It is important to have general principles by the way of such a Bill of Rights to assist legislators and administrators, as well as judges, in matters concerning human rights, and to encourage them to be more sympathetic and consciously concerned with these fundamental values. To my mind, the most important function of a Bill of Rights would be the benefit derived from it as a course of public education in the values of a democratic society. None of us opposes the substantive 1350 rights and freedoms granted by the European Convention on Human Rights. They are: the right to life; the prohibition of torture, of inhuman or degrading treatment or punishment, of slavery and of forced or compulsory labour; the right to liberty and security and to fair court proceedings; the prohibition of punishment without law; the right to respect for freedom and family life, home and correspondence; the right to freedom of thought, conscience and religion, to freedom of expression and of assembly and association; the right to marry and to found a family; the right to enjoyment of possessions, to education and free elections; the prohibition of imprisonment for debts; the right to freedom of movement; and the prohibition of expulsion of nationals and of collective expulsion of aliens. I read that list in order to pose the question which my noble and learned friend Lord Scarman also posed: where in our common law do we find this between one cover?
Of course there are objections to a Bill of Rights, but we have at least ratified the European Convention and it is part of our laws. A Bill of Rights is not mutually exclusive of the protection of rights by normal, traditional, methods. Rather, a Bill of Rights constitutes a minimum threshold below which no law or policy may be allowed to fall. The noble Lord, Lord Lloyd of Hampstead, feels that the protection of human rights in the United Kingdom is considerable and much in advance of that of other countries. What, therefore, would be the harm in this being publicly and symbolically recognised in a Bill of Rights guaranteeing to all members of the public—rich and poor, black and white, male and female—certain rights, freedoms and privileges?
Parliamentary sovereignty is used as an obstacle to those arguing for a Bill of Rights: but Parliamentary sovereignty is a rather incoherent notion, and possibly now increasingly out of date. As the range of international obligations on the United Kingdom increases, and particularly since the 1972 European Community Act joined us to Europe, Parliamentary sovereignty is increasingly looking like what it actually is: a constitutional doctrine developed to describe the increasing growth of Parliamentary powers in the 19th century. It would be wrong to think that protection of such a notion should be regarded as 1351 more important than the protection of human rights. There is an obligation on any civilised State, particularly one which is a member of the European Community, formally to recognise and guarantee basic rights. This is a matter above and beyond Party politics and above and beyond Parliamentary procedures. Rights should be guaranteed, and the passing of a Bill of Rights would be a statement of symbolic importance as well as of real importance. It would be a constant reminder to all citizens of the country that the foundations of the country are based on the mutual respect of individuals, and that, no matter what people's differences, that respect is absolute.
It is noteworthy that earlier this month the governing body of the International Labour Organisation decided to publish for the world to see the allegation made by the International Federation of Free Trade Unions that the Czechoslovakian Government had taken discriminatory measures, in the form of dismissals from employment, against workers who had signed or supported the Charter '77 manifesto on human rights. On page 14 of its report, the Select Committee says that the Northern Ireland Commission on Human Rights underestimates the effect on the legal system as a whole of a Bill of Rights. The Committee refers to the tradition of the common law in its historical development. The common law has developed empirically, and rights have been recognised on a fairly pragmatic basis. Now, however, we live in different times, in which the amount of law-making is massively greater and the pressures on and the demands of the lawmaking bodies in both Houses of Parliament seem to be increasing daily. The old method of developing the law is no longer adequate for the new demands being placed on the law.
No doubt there would be effects on the legal system as a whole in the long term, and to some extent they might be unpredictable. Yet other countries—for instance, Southern Ireland—have seen constitutional guarantees superimposed on a common law system and have experienced no undue difficulty. In any event, while technical, legal and logical problems would arise, if the justification is that this is being done to protect some basic rights of individuals, that is surely sufficient. My 1352 noble friend Lord Davies of Leek intervened, and I should like to say to him that the lives of more and more people are subject to controls imposed by statutory rules made by Ministers, not debated in Parliament and administered by a powerful bureaucracy. In truth, the call for the protection of human rights is often an attempt to stem the power of the Government and bureaucracy.
As regards entrenchment of a Bill of Rights, some people say it is impossible to entrench given the notion of parliamentary sovereignty; yet others say that one could introduce a procedural device— that, for example, the Bill of Rights could be changed only by a two-thirds majority of Members of each Parliament. If a Bill of Rights were incorporated along the lines of Lord Wade's Bill, then if ever a further measure were discussed which went against that Bill of Rights there would be somewhat of a fuss—and surely there should be a fuss when the rights of individuals are at stake. In other words, entrenchment is ultimately something that the lawyers and constitutionalists can argue about, but, in the real business of politics, if Parliament were ever to try to go against a Bill of Rights, procedurally or substantively, there would be a good and proper argument—and so there should be!
It is important to maintain minimum rights in a uniform way throughout the different legal systems of the United Kingdom. The United Kingdom should maintain uniformity of treatment of its citizens no matter where they live. Proud as we are of our heritage in the common law, it is increasingly anomalous within our international obligations under the European Convention that we do not state formally and publicly that basic rights are guaranteed. The Northern Ireland Commission on Human Rights and the Select Committee both strongly felt that any Bill of Rights should be based on the European Convention; and, indeed, in Northern Ireland there was very wide agreement on this. We are now members of Europe, and the European Convention is the most appropriate basis. It is not perfect, but it is there and it can be improved; and Mr. William Craig's committee is doing this. We are to a certain extent used to it and informed about it, so we would not be leaping entirely into the unknown, nor trying the extremely 1353 difficult task of drafting a free-standing Bill of Rights.
The Trades Union Congress has twice gone on record as saying that there should be a Bill of Rights for Northern Ireland, and this year it also passed a further motion which enshrines TUC policy of respect for and protection of human rights everywhere. So far, however, the TUC has not yet arrived at a policy for the rest of the United Kingdom. I would expect the trade union movement, with its history and tradition, to be in favour of a Bill of Rights that would protect individuals, particularly the small, exploited, oppressed and powerless. Trade unions have never been merely negotiators for wages and conditions. I fully understand the trade unions' attitude to the closed-shop issue, to which the noble Baroness, Lady Elles, referred. Two applications from the United Kingdom were recently considered by the Commission and have been adjudged admissible. This means that we can get an answer to the closed-shop issue before long; but under the convention the judges of the European Court are, as is normal in continental European systems, under an obligation to pay attention to the travaux preparatoires, and the wording of Article 11 of the European Convention was specifically chosen to avoid interfering with closed-shop arrangements in some countries.
The United Kingdom representatives drafting the European Convention in 1950 were Mr. Hoare from the Home Office and Mr. le Quesne from the Foreign Office. They did a magnificent job in preparing Article 11, which of itself removes from the trade union movement, I think, some of the worries that they have in this direction. I believe the trade union fears in this regard would therefore be groundless, but if something odd was done and the travaux preparatoires were in this regard ignored, we should know soon enough. I know there is a trade union fear about judges. The working class do not trust them. The judicial record is not a good one as regards trade unions, but it shows some signs of changing. I am particularly grateful to the noble and learned Lord, Lord Scarman, for touching on this delicate matter. Judges would be bound to interpret and apply the Bill of Rights based on the European Convention, 1354 which would be to safeguard the rights of individuals. They would be bound by the decisions of the European Court and by the travaux preparatoires, so fears that British judges might try to overturn precedents and interpretations are unlikely.
Trade unions have got to have a policy. It would go against the whole history of the movement if they were against guaranteed rights for individuals. Under the European Convention, certain rights are guaranteed; but when it comes to interpreting the extent or remit of these rights a certain amount of flexibility is allowed under the margin of appreciation to recognise local contexts. This would prevent any unduly alien or rigid elements being introduced into United Kingdom law. It would allow recognition of particular problems or contexts.
My Lords, I now want to return to the position in Northern Ireland. Many of our witnesses urged a Bill of Rights for Northern Ireland only. For several reasons I think a Bill of Rights should apply to the United Kingdom rather than to Northern Ireland alone. It would be wholly unprecedented for a unified State such as the United Kingdom to incorporate the provisions of an international treaty to which it is party, such as the European Convention, into only part of its domestic territory. A substantial amount of legislation enacted here applies throughout the United Kingdom, while much legislation which relates to Northern Ireland alone is either the same or virtually the same as corresponding legislation in Great Britain. Could we contemplate a situation whereby a court in Northern Ireland rules that certain legislation passed at Westminster was unconstitutional and that rights were vested in the individual in Northern Ireland whereas they were denied in Great Britain? That would be quite an absurd situation. There must be a common character of the rights of all citizens of the United Kingdom. For a Bill of Rights to be fully effective, one needs to eliminate the root causes of the infringement of human rights; and in Northern Ireland that means further social, economic and political progress.
My Lords, we are all disturbed at the continuance of the serious situation in Northern Ireland. Against that background, it would be a fabrication to pretend that a Bill of Rights would 1355 flourish. A Bill of Rights will impose no moral sanctions on the man who uses murder and intimidation to impose his twisted and perverted ideals. Nevertheless, in the event of a return to devolved Legislative and Executive functions to a Government in Northern Ireland, I believe that it would be desirable for the enabling legislation to include a clear, enforceable charter of rights for Northern Ireland. That is what the Standing Advisory Commission on Human Rights said in its Study Report, referred to by my noble and learned friend Lord Scarman. Make no mistake! Such a charter would never be, and could never be, a substitute for a political settlement as such.
Surely, my Lords, the right to life is the fundamental basic human right. I would commend what the noble Lord, Lord Shackleton, said in his report presented to Parliament as recently as August of this year. He said:I conclude by reference to the truism that basic civil liberties include the right to stay alive and to go about one's business without fear. A society will always seek to defend itself against threats to its security. We must be prepared to forgo some of our civil liberties for a time if that is the cost, on the best assessment we can make, of preserving the essentials.It is perhaps not inopportune to point out that during the past nine years more than 2,000 people in Northern Ireland have been denied this right. At this point I want to pay tribute to the Northern Ireland Judiciary who have sought to preserve the rule of law and to ensure the fair trial of those accused of terrorist offences under the emergency code which, of itself, denies certain human rights. No one should underestimate the achievement of this body of men, several of whom have been murdered or seriously injured by terrorists. Others have had their homes bombed in the last decade. None of us should be complacent about the problems involved in preserving the rule of law. I think it is timely to bear this in mind when considering the violations of basic human rights which arise through the necessary application of emergency measures.
Finally, I would remind your Lordships of what the noble and learned Lord, Lord Gardiner, said in paragraph 15 of the Report of a Committee set up to consider in the context of civil liberties 1356 and human rights measures to deal with terrorism in Northern Ireland. He said:While the liberty of the subject is a human right to be preserved under all possible conditions, it is not, and cannot be, an absolute right, because one man may use his liberty to take away the liberty of another and must be restrained from doing so. Where freedoms conflict, the State has a duty to protect those in need of protection".I refer to this because of our obligations. These are apt to be overlooked when one talks about the rights of the individual. I hope that while I am a Member of this House I shall see a Bill of Rights going through its various stages. I shall certainly emphasise the two sides of the coin: on the one hand, the rights; and, on the other, the corresponding obligations.
§ 5.56 p.m.
§ Lord SALMON
My Lords, I think I can assure your Lordships that I shall not keep you very long while I attempt shortly to explain how strongly I support a Bill of Rights, the sort of Bill of Rights I would support and the reasons why I would support it. I can tell you those reasons in a sentence. If in the years to come individual liberty should find itself in serious danger in this country, the only arms we would have to defend it, with any hope of success, would be a Bill of Rights. Since the reason why I support the Bill of Rights is just as simple as that—and I will expand it in a moment—it follows does it not? that my noble and learned friend Lord Lloyd of Hampstead can put on one side his fears that it might contain a lot of airy and high sounding ideas.
I, for my part, see no reason to introduce the European Convention into it, and as for transferring questions of policy from Parliament to the Judiciary, Heaven forbid! I think it is of the greatest importance that the Bill of Rights should be framed in the simplest language which can be clearly understood by every man and woman in the country; and it should set out in plain language, and certainly not at any length, the basic rights which are absolutely indispensable to individual liberty.
I recognise, of course, that if we have a Labour, Conservative or Liberal Party Government, or all three of them as we now know them, it is extravagantly unlikely that there will be any threat to individual liberty while they remain in 1357 power. But we should have to be sanguine indeed if we thought that there is no real risk that George Orwell may have been right about 1984—or at any rate a few years out. No one can ignore that danger. That, to my mind, is what a Bill of Rights is all about. One might—God forbid!— find oneself one day with a dictatorship. It would not matter at all whether it was one from the Left or the Right; each would be equally deplorable. Individual rights do not really appeal to dictators. One has only to look at what has happened abroad—and I wish we could say, "Well, it could not happen here ". It may be unlikely, but I think that there is a real danger that it could happen here. For example, take Nazi Germany. Before Hitler came to power individual liberty was certainly respected and maintained; and we all know how it was murdered, among many other things and people, by the Nazi regime. These horrors were carried out gradually and strictly legally. For every horror they introduced there was a law to support it. It is terrifying that this might happen here. The duty of judges in England is to administer the law whether they approve of it or not. If we had a dictatorship (and look at the experience in Germany to which I have referred) it would mean that the judges on the Bench would be absolutely powerless to help the individual.
I recognise that, however hard we try, we cannot make a Bill of Rights permanent for ever. We know that if the dictator came to power he would certainly do his best and, without a Bill of Rights, he would certainly succeed in getting rid of any legislation that he wanted to destroy and pass such Acts as he desired. Much the easiest way for him to succeed is the way I referred to just now: little by little, one piece of litigation knocks away another piece of freedom, then another piece, and so on until one morning you wake up to find that individual liberty is dead. The man in the street does not read the legislation as it is passed. One Act or perhaps 20 or 30 Acts can get through. Unfortunately, as these Acts are sometimes drafted today, no one could understand them even if he read them, I have known gentlemen who were supposed to understand something about the law who sat up all night with wet towels round their heads trying to understand an Act of Parliament—and not succeeding.
1358 The virtue of a Bill of Rights is this: before these savage Acts could be introduced, the Bill of Rights would have to be repealed. Although the man in the street would not read the ordinary legislation as it came along, or understand it if he did, he has the greatest pride in his individual liberty and an iron determination to preserve it. Freedom is in the air he breathes, and on the earth on which he treads; and so it has been in this country—thank God!—for over 200 years. It would be singularly difficult for any dictator to wash out the Bill of Rights for this would wake up all England, which might then wash out this dictator. That is the reason why I am so very anxious to see the Bill of Rights on the Statute Book, as uncomplicated as it can be and without dragging in a wide variety of subjects which are of great interest and importance but cannot be anything like as important as the safety of this country and the liberty of its people.
§ 6.7 p.m.
§ Lord BLAKE
My Lords, as a member of the Select Committee—though, I am afraid, not one of its most faithful attenders—I should like briefly to associate myself with what has been said about the chairmanship of the noble Lord, Lord Allen of Abbeydale. He was a wonderful chairman. I should also like to associate myself with what was said about the officers who assisted the Committee. I am going to speak very briefly in favour of Lord Wade's Amendment. I say straight away that I am one of those, like my noble and learned friend Lord Hailsham and the noble and learned Lord, Lord Scarman, who would, as I understand it, prefer ideally to see a much stronger and better guarded Bill of Rights than the measure we are discussing tonight.
I should like to see a genuinely "entrenched "Bill of Rights which cannot be overridden by the sovereign Parliament. I would welcome limitations on the powers of a Parliament which at present can do any-thing so long as 318 Members out of 635 in one House of that Parliament, having been elected perhaps by only 39 per cent. of voters, vote in favour of that particular measure. How far such a measure could be "entrenched" under existing procedure is a matter for argument. The advice given to the Select Committee was that it 1359 could not. This view was accepted. There is, however, a persuasive case the other way—my noble and learned friend Lord Hailsham of Saint Marylebone himself was inclined to think that way. I would refer to that made by many constitutional lawyers including my colleague, Dr. Geoffrey Marshall of my own college, in his book Constitutional Theory. He is not alone in challenging the accepted orthodoxy on this point.
However that may be, that is not what we are discussing today. What we are discussing today is perhaps different and less exciting. I agree with the view of the Select Committee that we should concern ourselves only with the question of whether or not there should be a Bill based on the European Convention on Human Rights on the lines of Lord Wade's Bill. To go beyond this would be to raise the whole question of a new constitutional settlement and at the moment that is really outside our terms of reference. As to a Human Rights Bill, the arguments on each side are set out in the report on pages 30–34. In a sense, the issue is not a crucial one. Britain has already acceded to the Convention and, in the end, it is possible for the aggrieved individual to petition the European Court at Strasbourg.
Having said that, my Lords, I am in no doubt which way to vote on the question of incorporating the European Convention into our domestic law. It seems to me that the alphabetical arguments in favour of doing so—(a) to (h) in paragraph 32— are much more cogent than the numerical ones against it—(i) to (ix) in paragraph 33.
The strongest arguments for incorporating the European Convention are to be found in sub-paragraphs (a), (d) and (g) and (h). Sub-paragraph (a) was particularly mentioned by the noble Lord, Lord Redcliffe-Maud, that is the point that the individual citizen might be better off and could not be worse off if the European Convention were made part of United Kingdom Law. That seems to me in itself an extremely cogent argument. Sub-paragraph (d) makes the important point that the Commission and the Court at Strasbourg were not intended as a court of first instance but as one of appeal. As long as the convention remains only an international Treaty, anyone in the United Kingdom who wishes to invoke it 1360 has to start at the top, which is remote and expensive and which produces a damaging degree of world publicity. The United Kingdom is the only signatory to the convention which neither has a charter of fundamental rights of its own nor has incorporated the convention into its domestic law.
Sub-paragraph (g) makes the important point, which was referred to by the noble and learned Lord, Lord Scarman, and by the noble Lord, Lord Plant, that the Northern Ireland Standing Commission on Human Rights was unanimously in favour of adopting the convention as part of the United Kingdom law as a whole. That seems to me a very cogent argument for doing it, and I am bound to say that I thought the point made in the arguments the other way in the report, where it simply says:The argument that what is good for Northern Ireland must be good for the United Kingdom as a whole is unproven".That seems to me a somewhat feeble argument to use: no particular reasons were given. I should have thought that the fact that the Northern Ireland Standing Commission on Human Rights has come down in favour of this course would be a very powerful argument indeed for adopting it for the United Kingdom as a whole.
Finally, sub-paragraph (h), the last of the arguments, was dwelt on by my noble friend Lord O'Hagan, who made the point strongly at the end of his speech. I agree entirely with that. This is the one that points out that the convention is likely to have far more influence on legislators, administrators and individuals if it ceases to be a somewhat remote international treaty obligation but becomes part of the law of the land, enforceable in the United Kingdom courts. I believe this last point is in some ways the most important of all, and although I can see some of the disadvantages expressed in paragraph 33 by the opponents of in-corporaton—they obviously have some points on their side—I believe they are outweighed by this last consideration alone. For that reason, I shall vote for the Amendment put forward by the noble Lord, Lord Wade.
§ 6.13 p.m.
§ Lord GORDON-WALKER
My Lords, if I may, in the course of my remarks, 1361 I should like to refer to one or two points made by the noble Lord, Lord Blake. I should like to add my thanks to the noble Lord, Lord Allen of Abbey-dale, both for the way in which he opened the debate and also for what I think was the admirable way in which he chaired and presided over a deeply divided committee: it is not an easy thing to do.
I want to oppose the Amendment proposed by the noble Lord, Lord Wade, which will not surprise him. So far as I know, only one English judge—though that a very, very great one—has appeared to challenge the validity of Acts of Parliament. In the 17th century, Chief Justice Coke said in a memorable phrase:Magna Carta is such a fellow that he knows no sovereign".But this concept of law did cross the Atlantic, and although judicial review, the right to strike down an Act of Congress is not mentioned in the American Constitution, Chief Justice Marshall held that the power of the courts to overturn an Act of Congress was inherent and implicit in a written constitution. In England, Coke's dictum has left no progeny. For centuries the courts recognised the supremacy of Parliament as unquestioned. Now I am not quite so sure that this proposition is quite so unquestionable as we used to think it.
The supporters of the Bill brought forward by the noble Lord, Lord Wade, for the incorporation of the convention into our law are proposing the introduction into the latter of a written constitution— for that is what the European Convention of Human Rights is. One argument— and I think it is a good one—for such a course runs like this, as I think the noble Lord, Lord Blake, was hinting: "Since we have recognised the European Convention by treaty, it would make very little difference to incorporate it into our own law now." In my view, my Lords, it would make a world of difference. At present, the British citizen can, after exhausting all his legal rights and remedies here, take his case against the British Government to the Strasbourg Court. That seems to me most desirable. It leaves all the rights of Parliament and all the jurisdiction of the courts intact, but if the convention were incorporated into our law things might—and I think would— be very different.
1362 One major motive of those who advocate the incorporation of the convention into our law is impatience with Parliament's delays in enacting what are generally regarded as necessary reforms of the law. One of the most cogent advocates of this view is the noble and learned Lord, Lord Scarman, as I interpret the evidence he gave to the Committee, though I must congratulate him on the very fine speech he has made to us this evening. I share the high regard of the noble Lord, Lord Lloyd of Hampstead, for the noble and learned Lord. As far as I know, I differ from him only on this one point that is before us. I gave him notice that I should say a few things which might be thought to be critical. I want to assure the noble and learned Lord that I do not say that judges are greedy for power, but I do say that the incorporation of the convention into our law would too greatly increase the power of the judges.
The noble and learned Lord, Lord Scarman, has said that if the Bill of Rights were introduced into our law—he said it in his speech and also in his evidence to us—it would freshen up the principles of common law and give the judges a revived body of legal principles on which they could go on slowly developing the law case by case. Those on the Committee who favour the Bill of Rights—the noble and learned Lord must have notice this—quote these words with approval and then add these significant words of their own on page 31 of the report:without waiting until the opportunity for legislation occurs".Those words were not the words of the noble and learned Lord but they clearly indicate the views of those on the Committee who agreed with him and thought that that was the implication of his words. They may well have been wrong, but the clear implication was that the judges could reform the law when Parliament delayed in doing so.
I agree with the view of the noble Lord, Lord Lloyd of Hampstead, that the incorporation of the European Convention of Human Rights into our law would import a new and formidable element of uncertainty into our law. Alongside our imperfect but carefully defined and relatively certain common 1363 law and statute law, new, vaguely-drawn, generalised principles in the convention of human rights would have to be interpreted by the judges. Over a very considerable field of law for a very considerable time, people would not know with any certainty what were their rights and duties. They would have to wait until the law was clarified in a haphazard way in accordance with which case in which order happened to come before the courts. I say to the noble Lord, Lord Blake, that that means an ordinary person could be worse off. It is not axiomatic that you must be better off with a Bill of Rights. You could be worse off, and I am arguing that that is what would happen.
The law of libel, the law of contempt of court, the right of newspapermen to report—all these would be put in doubtuntil judges got around to defining the meaning of the right to privacy in Article 8 of the convention, or the right to freedom of expression in Article 10, and, in coming to those decisions in these great new fields, they would in fact be reforming the law and ignoring Parliament. In interpreting these broad generalisations, the unelected judges would, over a wide field, usurp the power of Parliament to reform the law.
The noble Lord, Lord Redcliffe-Maud, seemed positively to want this to come about. He thought it was a fine thing that the judges should impinge upon and encroach upon a law, and he said that Parliament could always put it right. But it would be a very wrong thing for Parliament to have to put right the improper encroachments of the Judiciary upon the rights of Parliament. The great merit of Parliament is that it is elected— or the other half of it is—that it is answerable to the people, while the judges certainly are not. It is primarily because I fear that the incorporation of a written constitution into our law might in due course lead to judicial encroachment upon the sovereignty of Parliament that I oppose the Amendment of the noble Lord, Lord Wade.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, if the noble Lord looks at Section 3 of the Bill of the noble Lord, Lord Wade, as it stands, he will see that there is no question of a written constitution. That may be a defect of 1364 the noble Lord's Bill, but it says clearly that the sovereignty of Parliament is retained. All that it does is to say that an Act of Parliament, unless it explicitly states the contrary, will incorporate a Bill of Rights. There is no question at all of a written constitution in the subject matter of this debate.
§ Lord GORDON-WALKER
My Lords, I suggest that the convention is a written document containing legal rights and that the noble Lord, Lord Wade, wants to incorporate that into our law, and to that extent he wants to incorporate a written constitution into our law.
§ 6.23 p.m.
§ Lord DIPLOCK
My Lords, I should like to pay tribute to this report, which appears to me to be one of the most lucid and valuable reports that I have seen presented to this House. As it discloses, the arguments for and against a Bill of Rights are very finely balanced. On balance, I come down with those opposed to it. At this time of night, I shall not attempt to rehearse the general arguments against a Bill of Rights which are so lucidly expressed, as well as those in favour of it in the paragraphs of this report. I shall endeavour to confine my speech to a consideration which affects me and my fellow judges, and which I think ought to be considered and put in the balance against a Bill of Rights.
It is inevitable in modern society, in which judges have to interpret social legislation about which strong political views are held on either side, that this tends to bring judges into the political arena. It is an inevitable tendency, which was illustrated this morning as I read in The Times by the TUC's complaint about judicial intervention in the Employment Protection Act 1975. If we are to pass a Bill of Rights in the form of the European Convention, it is inevitable that that tendency will increase, because a Bill of Rights in that form compels the Judiciary to make political decisions.
During this debate stress has been laid upon the first sentence of each of the articles cast in absolute terms: everyone shall have a right to privacy; everyone shall have a right to freedom of expression, or whatever it may be. But little attention has been attached to the small print, to the second sentence, which provides the 1365 conditions in which derogation can be made from these rights which are absolutely expressed in the first sentence of the article.
There is some judicial experience in this country of interpreting Bills of Rights, because in the Judicial Committee of the Privy Council we deal with appeals from a number of Commonwealth countries who have achieved their independence since 1947, and who have entrenched in their constitutions Bills of Rights in basically the same—though by no means identical—terms as those in the European Convention. Some of them have retained these in their changing Constitutions and still retain the appeal to the Privy Council. So I can speak not with a great deal of experience, but, at any rate, with some experience of having to interpret and apply entrenched provisions for human rights in substantially these terms.
No human right can be absolute. Even the right to life—"thou shalt not kill "—is, in the convention, subject to exceptions which are spelled out specifically. Those present no difficulties. But when you come to the other rights—the right to privacy in Article 8, the right to freedom of thought and conscience in Article 9, the right to freedom of expression in Article 10 and the right to freedom of association in Article 11—these are subject to an exception permitting derogation from the absolute right. I shall take the exception from Article 8 on privacy, which is the one referred to by the noble Baroness, Lady Elles: subject to such exception as 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".That, with slight variations, runs like a refrain through those rights which have been stressed so much in the course of the debate today.
Secondly, I would draw attention to the additional exception which is inevitable if you are to have a Bill of Rights of this kind; that is, the exception for a public emergency threatening the life of the nation. There, derogation from the rights is permitted, and again I quote:to the extent strictly required by the exigencies of the situation".1366 Let me deal first with this latter exception, the emergency, because it is simpler to deal with and we have a current example of it in Northern Ireland.
It lies upon judges to decide whether a derogation satisfies the requirement of being strictly required by the exigencies of the situation. First, let me say that judges, by their training, by their experience, by the comparative isolation in which, by reason of their office, they are bound to live, are ill-fitted, compared with commoners, to decide in an emergency what the exigencies of a situation require. Secondly, it has to be decided by judges applying the judicial process, and the judicial process requires judges to act on evidence and not upon their own notions.
In emergencies, Governments act upon intelligence, which very often cannot be disclosed and put in evidence at all, so as to preserve the secrecy of sources, or, it may be, in order to avoid exacerbating the situation. Is it right that in an emergency the decision as to what is necessary to deal with the exigencies of the situation should be left to me rather than to Government? Power hungry as I may be, I would hesitate to regard myself as fit to make that decision.
Secondly, let us come to ordinary human rights, where there is no question of an emergency but where someone challenges a previous Act of Parliament on the ground that it diminishes the absolute right laid down. Then it has to be decided whether that derogation from the right is one which, in a democratic society, is necessary for the protection of public health, safety, economic wellbeing, or the like. The economic wellbeing, the protection of public safety, health and morals, involves decisions which depend upon the social and political philosophy which you hold dear. In a democratic society—those are the words in the convention—it seems to me, power hungry as I am, that those who represent the people and have been elected democratically in a representative Parliament know better and are better judges of that than appointed judges, who have been appointed not for their social philosophies or their politics but because of their qualification in the law. If this Bill becomes law in its present form, it will be open to every fanatic, every crackpot, to challenge any law they disagree with and which they think—indeed 1367 can verily suggest—detracts little or anything at all from the absolute right conferred by the first sentence in each article.
The German Constitution has entrenched in it something very like this Bill of Rights. Since 1952, 40,000 cases have been brought in the constitutional courts. About five of those cases were really important, but every one of them had to be dealt with. At the rate of something like 1,700 cases a year, that is two or three times the total case load of the Civil Division of the Court of Appeal in this country. The Caribbean countries, which have entrenched a Bill of Rights in their Constitution, got over this difficulty of the crackpot, the fanatic, the political extremist who desired to bring a case on political grounds, by providing that only new laws would be examinable in order to see whether they complied with the Bill of Rights. All laws existing at the date of the Constitution were not to be challengeable on this ground. The only challenge could be to the new laws.
I know that the Supreme Court of the United States has exercised a power of this nature for 200 years. There is little doubt that the consequence is that appointments to the Supreme Court of the United States —and very good appointments many of them have been—are political appointments and that the composition of the court varies, whenever opportunity arises, according to the politics of the President in power. 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 judges more and more 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.
§ 6.40 p.m.
§ Lord BLEASE
My Lords, it has indeed been a great pleasure to me to listen to the thoughtful way in which this important subject has been debated in your Lordships' House. Since noble Lords 1368 will wish, as I do, to hear the six remaining speakers promptly, I shall make my remarks brief. I am making a few points rather than arguing any particular case. I am in favour of a Bill of Rights as recommended by the majority of a Select Committee, and, as noble Lords have heard, this is also the position adopted by the Standing Advisory Commission on Human Rights in Northern Ireland on which I served as a member under the able chairmanship of my noble friend Lord Plant. I might add that this decision taken by the Standing Advisory Commission on Human Rights is also generally supported by nine of the 10 main political Parties in Northern Ireland and by the Northern Ireland Committee of the Irish Congress of Trade Unions and by the Northern Ireland Civil Rights Association, all supporting the general position for various reasons.
Having declared my support for the enactment of an enforceable Bill which would incorporate the European Convention on Human Rights into the domestic law of the United Kingdom, I must confess concern about the probable consequential long-term results. Because of these possible long-term implications, and because of the more immediate problems that may arise from frustrated expectations I have an instinctive feeling that the Bill could initially give more trouble than it is probably deemed worth in terms of Parliamentary time and the pursuit of human happiness. However, my commitment to the Bill of Rights has little to do with the immediate problem of today: my commitment has a lot to do with my desire to ensure safeguards for our grandchildren, for much of what we have taken for granted in the field of civil rights and justice and freedom is being challenged, if not eroded.
Reference has been made to the general views of the acceptance of a Bill of Rights and what it may do to expectations, and perhaps outside the legal profession and legislators it is generally held that a Bill of Rights might be a panacea for many of our social ills as well as the problems of ordinary fundamental human rights. When a Bill of Rights is discussed in a Northern Ireland context it is generally felt that there is an overriding way in which it may rectify some of our social problems in Northern Ireland, but I would categorically state that I do not see a 1369 Bill of Rights creating any more jobs, producing any more houses, improving our educational services, changing—as someone said—our human nature or solving the problems of Northern Ireland. Indeed, these expectations have been advocated by many who support the introduction of a Bill of Rights.
These expectations featured prominently in a report that was sent to the Secretary of State for Northern Ireland last November by the Standing Advisory Commission on Human Rights. In passing, may I say that as a member of that Commission I welcome the tributes that have been paid in this House to the general debate of the Standing Advisory Commission. I say that particularly because I have not always been a member of that Commission, and indeed I was not a member when the bulk of the work in connection with the report was being compiled, but I shall have the greatest pleasure in conveying the tributes to the Commission and to the hard-working secretariat who I know will be most encouraged by the generous tributes paid by your Lordships.
Perhaps I may encroach upon the goodwill of the House by simply quoting something which lends weight to the views that expectations are high in respect of what a Bill of Rights might or might not do, were it to be implemented. I am quoting from the Northern Ireland Human Rights Report, page 76, paragraphs, 11, 12, and 13. It says:Any Bill of Rights will be diminished in value unless it can operate within a framework of social, political and constitutional values which is sympathetic to it. Such sympathetic attitudes will need to be positively encouraged.A Bill of Rights will not touch the central problem of violence; it will be most unlikely to influence those engaged in terrorism or to lead to a reduction in the level of violence suffered by the whole community. While the present emergency lasts any Bill of Rights would be seriously weakened in its impact by the need to suspend important provisions in the interests of public security. Any such suspension of rights must be constantly scrutinished to establish to what extent it is necessary".A further paragraph says:A comprehensive Charter of Rights for Northern Ireland would not in itself create a consensus about the form of devolved government for Northern Ireland or bring about a widely accepted devolved government. Such a Charter might be a necessary part of a constitutional settlement in which all political parties and persons interested would be consulted. It could never be a substitute for such a settlement".1370 As your Lordships will know I am a trade unionist and not a lawyer. Certainly these expectations weigh heavily on those who are advocating the introduction of a Bill of Rights, and it is my view that a Bill of Rights will alter the balance of the constitution and make it absolutely essential to examine the wider issues of constitutional reform. The practical results of a Bill of Rights will inevitably affect the relationships that exist between Parliament, the Executive and the Judiciary, for although I strongly believe that we could soldier on in the United Kingdom for perhaps another decade, content with ourselves that human rights are at least as well protected here under our present laws and system of government as in countries which have a formal Bill of Rights, it appears to me that if we do not act now in a positive way we shall create serious social and political problems, both in the United Kingdom and in respect of our international commitments. If we decide on such a course, not to introduce a Bill of Rights, we ignore the growing disenchantment and even alienation of our people from institutions which are traditionally safeguarding our human rights.
I believe we also set ourselves apart from the developments which are taking place in international standards of human rights and also in recognition of the need for a rule of law. All of these arguments are advanced for a Bill of Rights and the one to which I attach particular importance in a long-term educative effect is the introduction of a Charter. I believe that the institution of a Charter of Rights would enable citizens, bureaucrats, legislators, judges and others, including professional politicians and clergy, actively to appreciate the need to uphold civil liberties and to have conscious concern in their approach to upholding fundamental values in the carrying out of their public functions and public duties. I believe that the Charter is of particular relevance to any devolved system of government in the United Kingdom—in Scotland, Wales, Northern Ireland, and indeed parts of England. I believe the Charter could deal with the specific matters relating to racialism, religion, language problems and other issues which are regionalised rather than of a United Kingdom character. Those of us who support the enactment of a Bill of Rights 1371 must do so with our eyes wide open. What we are offered is nothing less than a major stake in the re-drawing of the constitution and making the constitution more sensitive to the changing needs and views and feelings of the people of the United Kingdom.
Finally, I might be wrong, but as I read through the evidence submitted to the Select Committee I believe only one body dealt specifically in terms of the machinery for monitoring and for implementing human rights legislation if it is introduced in the form proposed, and this body was the National Council for Civil Liberties. I should have liked to hear discussed in more detail the monitoring and perhaps the body set up to implement the human rights legislation. Someone said it would require a standing all-party committee of the House and there we would have the sovereignty of Parliament assured. Others have said that it is important to have a United Kingdom Commission of Human Rights, with suitable councils for Northern Ireland, Scotland, Wales and England. I feel that I should have liked to take the proposal a stage further; if such a Bill is introduced we will certainly require monitoring and implementation machinery. I will support the Amendment.
§ 6.51 p.m.
§ Lord MORRIS of BORTH-Y-GEST
My Lords, although I had the pleasure of hearing all the recent debates in your Lordships' House on the question of a Bill of Rights, I did not on those occasions give expression to my view. We now return to the direct question, which I think is the only question before your Lordships, whether a Bill should be introduced to provide that the terms of the convention—that means the words of the convention—should be incorporated as part of our statute law. As I understand it, we are not at all debating whether we should have a written constitution. Nor, having had such clear explanations from the noble Lord, Lord Allen of Abbeydale, are we at all concerned to consider whether the provisions of the proposed Act could or should in some way be entrenched. There is, therefore, as I see it, a plain issue before your Lordships: should the terms—the words— 1372 of the convention be made a part of our statute law?
In returning to this question, we have the great benefit of the consideration given to this matter by the Select Committee. They were presented with a most formidable task, and I should like, if I may, with deep respect, to express my admiration for the way in which, under the distinguished chairmanship of the noble Lord, Lord Allen of Abbeydale, the Committee tackled what seemed to be a mammoth undertaking. Much skilled work was involved on the part of every member of the Select Committee. In particular, I think we can express our gratitude to them for publishing the Minutes of Evidence. There arc 376 pages of these minutes. They contain a mine of information, information that will be of value in future years, and they are a veritable treasury—whether golden or not I need not consider—of learning and erudite opinions.
On a subject of such importance and interest as the present, and at the present stage of the debate, I do not think that I should do more than summarise the main reasons which impel me to one conclusion or the other. I have two reasons for holding my view, which is that the proposed Bill should not be passed. My first is that the suggested advantages have not been shown to my satisfaction to be more than marginal and minimal. My second reason is that the disadvantages would be serious and considerable.
I see that on page 33 of the Report it is recorded that, in a Written Answer in your Lordships' House on 23rd March, the Minister of State, Home Office, stated:The Government have at present no reason to suppose that there is a conflict between any of the provisions of the Convention and the law of the United Kingdom or the general rules governing administrative practice in this country".That is a very striking statement. It does perhaps leave open the question whether there is any shortfall between our law in the United Kingdom and the worthy precepts, for I so regard them, which are recorded in the convention. My Lords, in my view, to any serious extent there is not.
Reference has been made in this debate to the common law of England. I do not think that it is complacent if we applaud and express pride in what the common law 1373 of England did for this country. We had the advantage of the accretions of wisdom and experience comprising the common law, the product of centuries of growth and development, acknowledging and protecting the way of life of the free citizens of this land. I have often heard my friend the late Mr. Richard O'Sullivan—I know he was a friend of the noble and learned Lord, Lord Hailsham of Saint Maryle-bone—speak with glowing pride of the free and lawful man, a man of repute and entitled to the protection of his home, his property, his freedom and his reputation. We in this country have been the very home of human rights. We do not need anyone to teach us what human rights are and what they should mean in our community. However, we never expected and we would not expect that our common law should deal with all situations arising in recent times. The question now arising is whether the precepts contained in the convention would give us anything of any added real value. Of course, I do not forget the Golder case noted in the Select Committee's report. But in general my view is that our laws measured up against the convention are not found to be unsatisfactory.
Before we put a measure on the Statute Book must we not be quite certain that there is a need and that a need has been proved to legislate in the proposed terms? Very often legislation comes about as a result of some strong demands, often vigorously expressed. We have not, I think, experienced such processes. However, my opposition to the suggested legislation does not rest on my view that no substantial advantage has been shown to result from the passing of the Bill, but rather on my view that there would be positive and serious disadvantages
The legislation would be in a form quite different from the accepted style of legislation in this country. It would always be possible to change our scheme of things; it would always be possible to legislate and to lay down some precept or good intention and then to say, "Now we leave it to the judges to work it out". I should be wholly opposed to any such system. In my view, it would be quite undesirable for Parliament partly to legislate and then to hand over the matter to the judges and require them to legislate as to the remainder. I am quite sure that Her Majesty's judges will do whatever 1374 they are asked to do by Parliament. But I am also sure that they would not ask to have powers put upon them to make decisions which really are decisions as to the content of legislation.
What would have happened in this country if an Act of Parliament had been passed in the terms that, "There shall be no discrimination on the grounds of race"? Would it be satisfactory to leave it to the courts to decide what "discrimination" meant and to leave it to the courts to decide under what circumstances there would have been discrimination? Of course, it was necessary for us to legislate. In regard to race relations we legislated in 1965, 1968 and again in 1976. There were detailed and specific provisions in those Acts. Parliament having decided what it wanted to do, I think that it would be retrograde if it became open to someone to say, "Ah, now the convention has become part of English law and I am going to show that the statutes passed by Parliament are inadequate and the courts must so decide".
Section 1 of the Bill, as your Lordships will have seen, provides that:The Convention …shall without any reservation immediately upon the passing of this Act have the force of law, and shall be enforceable by action in the Courts of the United Kingdom".Enforceable by action against whom? I think that it has been quite fairly said that there might have to be some Amendments to the Bill of the noble Lord, Lord Wade, if the matter went any further. But it could not be left like that, could it?
Reference has already been made to one or two Articles. May I remind your Lordships of the first part of Article 10. It says:Everyone has the right to freedom of expression".Would that in any way alter our laws? If the Bill became an Act some ingenious people might come along and say "Oh, yes it does". For a long time we have developed our law of libel and slander. We have specific provisions and, indeed, some statutory provisions. What would be advantaged by saying:Everyone has the right to freedom of expression"?The Article continues:This right shall include freedom to hold opinions and to receive and impart information 1375 and ideas without interference by public authority and regardless of frontiers".I stress that it says:receive and impart information and ideas without interference by public authority".We have heard a great deal lately about open government. There have been all sorts of suggestions and provisions and great debate continues. The difficulties of dealing with the subject of open Government are manifest to all. Would your Lordships really want to put it on the English Statute Book that the right to freedom of expression shall include:freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers,"?It goes on, of course, to say that the Article is not to prevent Statesfrom requiring the licensing of broadcasting, television or cinema enterprises".There then follows a second paragraph very much on the lines of the paragraph that my noble and learned friend Lord Diplock read in connection with Article 8. It is not quite the same, but it is similar. The first part of Article 8 says:Everyone has the right to respect for his private and family life, his home and his correspondence".Over the past years your Lordships have had many debates in this House on the subject of whether we could introduce some sensible and appropriate legislation to prevent unjustifiable invasions of privacy. So many attempts have been made and, as your Lordships know, there was a Committee under the distinguished chairmanship of Mr. Younger. There are intractable problems—how do we do it? Are we now to put it on the Statute Book that,Everyone has the right to respect for his private and family life, his home and his correspondence",subject always to the second part, and to leave it to the courts—at the instance of any number of ingenious people who could raise all sorts of proceedings—to say what this means? Is Parliament to say, "We abrogate; we have been thinking about how to deal with invasions of privacy. We have failed to find any methods. We abandon it all. We say that we pass the Bill with the words, ' Everyone has the right to respect for his private and family life, his home and his correspondence', subject only of 1376 course to the second paragraph", to which the noble and learned Lord, Lord Diplock, referred?
That would be an English Act and those would be words in an English Act of Parliament. Your Lordships take an infinity of trouble when a Bill is introduced here to ensure that the wording is right. Sometimes it takes many days or weeks to consider all the possibilities of wording. Who could decide what that Article means? I am merely putting forward illustrations. In my view, the enacted law ought to be clear and certain. To enact this Bill would involve and introduce a parade of uncertainties. I hope that your Lordships will not pass the Bill.
§ Lord PLANT
My Lords, before the noble and learned Lord sits down, may I ask him whether he thinks it was a mistake for the United Kingdom Government to have ratified the European Convention?
§ Lord MORRIS of BORTH-Y-GEST
My Lords, no, I do not think so. There is no inconsistency between ratifying and declining to make it a detailed part of our statute law.
§ 7.10 p.m.
§ Lord WIGODER
My Lords, I should like to add the gratitude of my noble friends on these Benches to all those noble Lords who served on the committee, particularly the distinguished chairman, who played such a prominent part in assisting the committee to write the report which has finally emerged. I should also like to express our gratitude to my noble friend Lord Wade who has pursued with determinateness and, I hope in due course, success the Amendment before your Lordships this evening. In addition, I should also like to express gratitude to all those who gave evidence to the committee which, as the noble and learned Lord, Lord Morris of Borth-y-Gest, has said, has resulted in the production of a book of some 376 pages which, at a cost of some £7.10, would make, if I might suggest it, a wholly admirable Christmas present for those of your Lordships who may be wondering what to give your Lordships' more articulate and intelligent friends.
May I say at once that two matters become clear from this debate. First, it 1377 would not be fitting for those of us who support my noble friend Lord Wade in his Amendment to claim any monopoly of being a good European or any monopoly of supporting the principles of a Bill of Rights. It is clear from the very distinction of many of those who have taken part in the debate on the other side that it would be quite wrong for any of us to seek to put ourselves in that position. Secondly, what emerges from this debate is that in a sense the issue which is before your Lordships' House is comparatively limited. It has already been said many times—and I shall repeat it rapidly— that this country signed this convention in 1950. For some quarter of a century now successive Governments have accepted the position that any other country may charge us with a breach of the convention; and have accepted the position that any citizen of this country may go, first, to the European Commission and then to the European Court if necessary, in order to claim that the convention has been broken by authority in this country. The decisions of that Court are accepted in this country as binding.
In those circumstances, if I may say so, it is perhaps not of very much help to go through the articles in the convention or to go through the protocols and to draw attention to what appears to be somewhat doubtful, dubious or loose wording here or there; because they are accepted by the Government by our very signing and ratification of the convention. If I may venture to suggest it, many of the arguments that we have heard this evening against the Amendment of my noble friend Lord Wade are really, as the last intervention pointed out, arguments against this country ever having signed the European Convention in the first place.
In that situation the real issue is, therefore, simply this: ought we to extend to our citizens, to whom we have given the right to go to Strasbourg, the right to go in the first place to the courts in our own country? That is the sum total of what is put forward by the Amendment of my noble friend Lord Wade. Perhaps I could take the example given by the noble and learned Lord, Lord Diplock. In the course of his very powerful observations he told us that there were some 40,000 cases in Germany where, because there was a similar Bill of Rights in Germany, the 1378 German courts had been troubled in recent years. What the noble and learned Lord is really telling those 40,000 Germans is that they would be better off not having the right to go to their own courts in Germany, and having instead to take the 1,000 mile, or whatever it may be, journey over the years to Strasbourg in order to press those complaints.
The objections that appear to be raised, as against the enormous advantage that that would be to the citizens of this country, really fall into two categories. The first is that by its nature our legal system is inappropriate for the incorporation of the convention, and in particular it might give rise to some degree of uncertainty, which was the point made with such force by the Law Society. The second is that in one way or another our judges are unfit or incapable of dealing with the terms of the European Convention.
I should like to deal very briefly with those two points. First, that our legal system is said to be inappropriate. I think I am right in saying that Magna Carta is still on the Statute Book and that our legal system contained in 1689 the Bill of Rights. They were Acts of Parliament passed in very similar, broad, general terms to those contained in the European Convention and which our legal system found no difficulty at all in construing. Apparently it is thought by some who oppose the Amendment that our judges do nothing except strictly interpret the wording of statutes and inflexiby apply the rules of common law. To take that view is to overlook judicial developments over the last two decades.
Let us take for a moment the Court of Appeal since the noble and learned Lord, Lord Denning, began to preside there in 1962. He is a most distinguished lawyer and a very profound and shrewd person. Over and over again in the course of the development of the Court of Appeal in the last 16 years the noble and learned Lord, Lord Denning, has been applying precisely the sort of principles that are laid down in the European Convention. He has in effect—and I mean this as the highest possible tribute—been applying the Denning convention of human rights. The only difficulty to which it gives rise— and I say in its support that it is a rather more profound convention and infinitely more elegantly drafted than the European 1379 one—is that it is to some extent individual to that very distinguished judge. It is one of the great arguments in favour of incorporating the European Convention that it would lead to a common body of general principle which would be applied by all the judges, rather than leaving it to the individual initiative of the great President of that division of the Court of Appeal.
Perhaps I could take as another example the Appellate Committee of your Lordships' House. We have heard five speeches from noble and learned Lords this evening and, as is their wont, they are divided in their final effect. That committee of your Lordships' House has decided that it is not bound by precedent, that it is not bound by its own previous decisions. In effect, that means that repeatedly over the last years it has reconsidered the state of the law in the light of existing social, economic and political circumstances. It is an inevitable part of the development of the law. Therefore, I would suggest to your Lordships that to incorporate the European Convention would, far from adding uncertainty to English law, add a degree of certainty. People would know the principles that were being applied instead of having to wait for their ad hoc development either in the Court of Appeal or in your Lordships' House. So much for the suggestion that our legal system is incapable of adapting itself to incorporate these general principles.
The other objection that is raised is that in some way our Judiciary is unfit or incapable of applying those principles. I find it difficult to understand that. I find it difficult to accept that the judges at Strasbourg, including the British judge, are able to apply these principles and that somehow it is beyond the wit of our own judges. I find it difficult to understand how it can be said that it would enforce the taking of political decisions upon the judges. It would, of course, enforce the taking of decisions which must have regard to the general political, social and economic background of the times, but that they do in any event at this moment.
I can understand the argument that has been put forward, for example, by Professor Griffith that our judges are, by 1380 nature, reactionary; that therefore the less power that is entrusted to them the better, and that it ought to be left to the progressive liberal elements in Parliament to legislate rather than to give such power to the judges. I understand the argument. I must confess that I find it not very impressive. It consists, if one reads his extremely readable book, The Politics of the Judiciary, in constructing a thesis and then selecting occasional cases to support it.
It is in fact rather easier to construct precisely the opposite thesis and find a great many more cases to support that, because I believe that over the past years the Judiciary, on the whole, in this country, have established for themselves an enviable record of supporting the individual against the Executive. Indeed, there was an interesting illustration of this in only the last 48 hours because, as many of your Lordships will have seen, the TUC have been complaining bitterly that the Judiciary have been biased against them in their interpretation of some of the labour laws passed in recent years. If the Judiciary have been in some way restricting the privileges of what is probably the most powerful pressure group in this country, that is very much in accordance with the traditions of the Judiciary in this country, and something for which I would suggest they have to be complimented rather than criticised.
I can see nothing in the argument that in some way or another our judges would find this difficult. I do not believe that the noble and learned Lords, Lord Diplock and Lord Morris of Borth-y-Gest, would find the least difficulty if they were translated to Strasbourg in applying the terms of the European Convention—at any rate, not find any more difficulty than they already find in sitting in a judicial capacity in your Lordships' House.
Finally, what would be the effects of incorporating the convention? First, it would give, as I indicated, a uniformity of principle which could be applied by judges. Secondly, it would give an impetus to the whole movement in the Court of Appeal and in the Appellate Committee towards applying general principles of this nature, and not being bound too rigidly by precedent or by the literal letter of the law. Thirdly, it would lead 1381 to improvement in many areas of the law.
Perhaps the most revealing sentence in the report of the Select Committee that dealt with the opposition to Lord Wade's Amendment was this:To take only one example, the introduction of Article 10 of the European Convention into our domestic law would introduce serious doubts into such important areas of the law as those relating to defamation and contempt of court, and official secrets".
§ Lord WIGODER
My Lords, it is at the bottom of page 32 and the top of page 33. Those are three of the very areas of the law in which I venture to think all the Members of your Lordships' House would regard the situation as at its most unsatisfactory in this country.
It would allow the citizens of this country some remedies which they do not at present possess. Your Lordships will remember that in the report of the evidence at page 145 there are a dozen sample indications of potential violations of the European Convention for which, at the moment, there is no effective domestic remedy under United Kingdom law. Your Lordships who will have seen that list of violations will no doubt appreciate the value to the citizens of this country to be able to go to the courts of this country in order to seek remedies for those violations.
Finally, there is what is, in a sense, the propaganda point. There is the point that if Parliament were to say, in terms, "Not merely are we bound as a Government by treaty to the European Convention but we regard the whole subject of human rights as of such fundamental importance that we propose to incorporate it into our own domestic law from now on", that would be a big step forward in the field of human rights. I venture to hope that your Lordships will support the Amendment of my noble friend Lord Wade.
§ 7.25 p.m.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, I ought to apologise to the noble Lord, Lord Allen of Abbey-dale, because my judicial duties prevented 1382 me from hearing his speech, and at the same time thank him not merely for performing a great service to this House by chairing the Committee but also for his personal courtesy to me when I gave evidence before it. I should also like to apologise really for taking part in this debate at all, because I have taken part, I am sorry to say, in all three versions of the Bill of Rights brought forward on behalf of the Liberal Party on Second Reading: I gave evidence to the Northern Ireland Standing Advisory Committee; I gave evidence to the Select Committee, and I really have not got a great deal new to say. Therefore, I hope to say the rather older things that I have to say more shortly than I otherwise might. I want to make it absolutely plain that there is no question from these Benches of a Party Whip, but I equally want to make it absolutely plain that I shall vote for Lord Wade myself, without any feeling of resentment if every one of those behind me and beside me vote in the other direction.
I never cease to be amazed at the conservatism of my own profession and of lawyers on Benches opposite. I think it is one of the most extraordinary things that I have listened to. Let us just for a moment consider the facts of life. Every country in the world except, I think, Israel, which lives in a permanent state of war, and New Zealand, which seems to have escaped notice, has provisions roughly of this nature, of course except ourselves. We are seriously being asked to believe that something awful is going to happen to us if we follow the example of nearly every country in the world. I can understand that some people will say, and my noble friend Lady Elles will say, "Well, of course, that does not stop the infringement of human rights in the USSR, because they have a lovely constitution and pay no attention to it at all." I can understand that argument. What I find difficult to understand is the revolutionary nature of the change if we introduce it here.
I must remind the noble Lord, Lord Davies of Leek, that much of our constitution is written already. The Magna Carta is there; the Bill of Rights is there; the Act of Settlement is there; the Catholic Emancipation Act is there. Incidentally, Judge Jeffreys, to whom he referred in a slightly derogatory fashion, as being the 1383 only other Welsh Lord Chancellor, was in fact the cause, or one of the causes, of the Bill of Rights of 1688 or 1689, whichever it happens to be.
The second of the facts of life is that we have put our name to the convention. We said that all these subjects should be justiciable. I know that the noble and learned Lord on the Woolsack will not get angry with me this time, but what those who are against Lord Wade say is, "Our own judges are too stupid, or too biased, to do what we have deliberately put into the hands of the judges abroad as justiciable". I must say, coming from the Benches opposite with their reluctance to join European affairs, I find this a remarkable attitude.
The next argument is that it will lead to a flood of litigation. My noble and learned friend Lord Diplock, whom I have known since the days when we debated at the Oxford Union, says that there are 40,000 cases from Germany about their Bill of Rights. I must say to the House that I find it odd that we should be told that of course British citizens can have these rights because we have adhered to the convention, but only if we make it too expensive, or too long, for them to exercise. If they go to the courts of this country to get a quick and rapid remedy for what we have accorded to them, of course we shall not have it.
Nothing has ever been done so ingeniously since the 12 tables were first invented by the Roman Patricians. The Roman Patricians kept the law to themselves—it was a very good thing—and the wicked Plebians actually wanted to know what the laws were about. So the Roman Patricians said, "Of course they can know them, but we will put them too high up on the walls for anybody to read", and that caused a considerable amount of disturbance at the time. The idea that we should give these rights to people but make them too expensive and too long to get at seems rather peculiar. But of course that is nothing to my noble and learned friends Lord Diplock and Lord Morris of Borth-y-Gest. They are under the curious illusion that the judges are not already in politics. Lord Diplock, as one of the principal authors of the Anisminic decision, practically abolished an Act of Parliament about the Foreign Compensation Commission. What about Gouriet? 1384 On a previous occasion my noble and learned friend Lord Denning said he was afraid that judges would be brought into politics if Lord Wade's measure should be introduced. What about his judgment in Gouriet? What about the Laker dispute? How about the Thameside education dispute? What about the decision invalidating Mr. Roy Jenkins's policy on wireless licences? How about the various decisions in this House and the Court of Appeal on the Race Relations Act? And what about their recent decisions on the trade union legislation?
Judges cannot choose the work they do; they have to come to a decision one way or another on all litigation which is brought before them. If they assume jurisdiction they are in politics; if they decline jurisdiction they are in politics. All they can hope to be is impartial, and I venture to suggest that they are the most impartial body of judges in the world which have existed either now or at any time, and I say that pace the notorious Professor Griffiths, who as far as I can make out is a dedicated Marxist. The idea that judges can avoid sensitive decisions if you have a Bill of Rights is, I think, a pure illusion; I say that with respect to my noble and learned friends on the Cross Benches and I unreservedly stand solidly beside my noble and learned friend Lord Scarman in this respect.
If at the end of the day you tell judges that at any rate a new rule of construction for Acts of Parliament is to be introduced, you do not make them any more the masters of Parliament than they were before. They have to interpret the Race Relations Act anyway; it is a pretty bad Act and I would tell Lord Morris of Borth-y-Gest that we are passing 3,000 pages of legislation every year and about 10,000 pages of subordinate legislation, and it is extremely difficult to understand what much of it means. If the judges are being told, "If you find doubt as to what it means or doubt whether Parliament really intended it, you must look at the Act which was passed at the instance of Lord Wade and use it as a rule of construction", I do not see that any revolutionary change is being made, and the judges would be greatly helped to make sense of the volume of law which we are passing at the present time. I say with respect, therefore, to the 1385 critics that they must make up their minds in the long run whether we are being asked to make a revolutionary change or whether we are simply putting a useful tool of construction into the hands of the judges; and I suggest to the House that we are doing the latter rather than the former.
I wish to add a few minor points. If the Scottish Devolution Act goes through —I do not know what the result of the referendum will be and it is not a measure I particularly like—the judges in one form or another, and particularly the distinguished row on the Cross Benches here, when they have taken their big Daimler to Downing Street, will have to decide the validity of the Acts of Scottish Assembly against the assembled wrath of the Scottish National Party if they do not decide the way the SNP like. I do not see it is becoming at all sensible to deny to them the right to construe Acts of Parliament in the light of the European Convention.
The one thing that cannot be said with any degree of plausibility is what was said by the noble Lord, Lord Gordon-Walker. We are not being asked in this debate to introduce a written constitution. We are not being asked to override the sovereignty of Parliament. We are not being asked to entrench anything because Clause 3 of the proposed Bill makes it absolutely clear that Parliament is free, rightly or wrongly, to override the Bill of Rights at any time it chooses to say it wants to.
The modest result of this Bill is, I think, a double one. The first is that judges will have a rule by which to interpret Acts of Parliament. The second is that if by any chance—by something embedded in this enormous Cloaca Maxima of legislation which Parliament passes every year—Parliament inadvertently breaches the Bill, then the judges will be able to say, "This is a mistake". They cannot do that now because they are tied by the most ludicrous rules of construction, in my opinion, of any modern European State. They are bound to take the grammatical sense of the words even when in many cases they make nonsense.
Indeed, only last Session the noble and learned Lord on the Woolsack was introducing a Bill altering the Limitation law 1386 because the House of Lords, God Bless it! in its judicial capacity, had made absolute nonsense of the intention of Parliament, passed in the lifetime of most of the judges who were sitting on the Appellate Committee, and that is why we had to legislate again. I say with respect to whoever said it—I think it was Lord Gordon-Walker—that it was a jolly good thing that Parliament should legislate about sex discrimination and race relations—
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, I apologise to the noble Lord for taking his name in vain; one noble Lord said it. It was said that it was a jolly good thing that Parliament should legislate about race relations and sex discrimination rather than that the judges should have to interpret a law just saying that all people of all races should be treated alike. I am not sure that I agree. The Sex Discrimination Act is about 75 pages long and the Race Relations Acts, three of them in the last 10 years, are about another 80 pages long. I would prefer a single sentence which said that people of all races should be treated alike and for the judges to view those cases as and when they arise. But, then, I am a lone voice speaking in the wilderness and everyone is very conservative, except me. I am going to vote with Lord Wade.
§ 7.39 p.m.
§ The LORD CHANCELLOR
My Lords, this has been a most impressive and agreeable debate—far more agreeable than the last occasion. That is in part attributable not only to the better humour this evening of the noble and learned Lord, Lord Hailsham of Saint Marylebone, but also to the value of the report the committee has set before us with great objectivity and clarity on both sides of the argument. As the noble Lord, Lord Wigoder, said, neither side claims a monopoly of concern for human rights, and that has been a sobering thought throughout the discussion. I, too, wish to express my gratitude, and that of the House, to the noble Lord who introduced the debate and who was so helpful in setting the scene for us. I also wish to 1387 congratulate him upon his superb chairmanship of the committee—a matter about which various members of the committee have themselves testified. We owe much gratitude to the noble Lord, Lord Allen of Abbeydale, for the willingness with which he undertakes so many of these massively difficult commissions with such cheerfulness and brilliance.
There was a complaint by the noble and learned Lord, Lord Scarman, that the report was too well balanced. I do not find that a cause of criticism at all. Indeed, as the noble and learned Lord, Lord Diplock, said, the arguments for and against the incorporation of the convention are themselves very finely balanced. The debate this evening has shown that to be so. A mark of that fact is the way in which some of the finest judicial minds of the country which we have heard in operation tonight have shown themselves to be in disagreement as to what would be the better course for our country and our people to take with regard to the convention.
In the course of expressing gratitude I, too, should like to thank the noble Lord, Lord Plant, and his colleagues for their most valuable work and for the report that has emerged from the Commission on Human Rights in Northern Ireland. We are deeply grateful to them for what they have done.
The committee which has reported to us consisted of noble Lords with a wide range of experience in politics, government and the law. The report has shown that they were almost equally divided on their recommendations to the House on the question of incorporation, although with Olympian impartiality they said that both those who advocate, and those who oppose, a Bill of Rights pitch their respective cases too high. I do not think that that can be said of the debate tonight, at any rate. The divisions went right across Party allegiances. Even the Cross-Benches were riven apart in the deliberations of the committee, as were the members of the Labour Party and the Liberal Party. I am sure it was a mere coincidence that all the Conservatives on the committee agreed to support incorporation; and of course they did not approach the matter in any Party spirit at all.
1388 I believe that it is common ground between us that, whatever view we take of this immediate issue, there is need for vigilance to safeguard and promote the cause of human rights and the civil liberties of our people. If I may strike a personal note, I should like to say that a large part of my own life in the law and in politics has been spent in doing so. I will not try to mitigate the actions or villainies of my forebear, Judge Jeffreys. When it is said that he was the only other Welshman who was Lord Chancellor that always steadies the enthusiasm of Welsh audiences whom I address; and I concede that Judge Jeffreys was not exactly astute in the promotion of civil liberties and human rights. My view of the matter is—and probably this is now common ground—that what is in issue between us is really more a question of machinery than of objective, a question of means, not of ends. As I have said, there is a common theme of a need for vigilance to see that the citizen's rights are secured and protected.
The matter that troubled me about the sombre speech of the noble and learned Lord, Lord Salmon, was this. Frankly, I doubt very much whether the existence of a Bill of Rights would in any way have stopped the onward march of Nazi dictatorship. Once a dictatorship takes a grip by the methods of violence and control of the media, then I am afraid that its power surpasses the power of any Bill of Rights or any fundamental provision. It is regrettable that that should be so, but I am afraid that it is so; and at the end of the day it is the commitment of the people themselves to democracy that is the crucial factor.
It has been interesting to hear of the discussion that has been taking place in Committee Room 6 of the House this week under the auspices of the International Commission of Jurists. This meeting was attended by distinguished experts in the field of human rights, both in the United States and in this country. One of the points of general agreement which emerged from their discussions was that if we are to attempt to achieve a higher standard of observance of human rights in the world at large, then we shall be credible only if we are prepared to submit our own record to international scrutiny, and to comply with the international standards of human rights which 1389 we have accepted. I believe that we have done this. We have accorded the right of petition; we have given a right to arbitration to the subject in this country who claims to have been acted against contrary to the provisions of the convention. He has a final right to go to the Commission and to the Court.
I believe that not only have we maintained the relevant standards that are expected of us here from the fact of our ratification of the convention, but we have made ourselves liable to be called to book in the tribunal of the Commission and of the Court itself. I share the confidence which was expressed by my noble and learned friend Lord Morris of Borth-y-Gest, that our legal provisions and our law and its administration stand up to the test of the question: do they comply with the terms of the European Convention? Although as a consequence my noble and learned friend Lord Morris of Borth-y-Gest and I shall have to face the displeasure of the noble and learned Lord, Lord Scarman, as men of complacency we shall have to bear that with such fortitude as we can command.
In my view, before taking a step of such constitutional importance—as my noble friend Lord Gordon-Walker indicated it was—as embarking upon legislation to incorporate the European Convention into our domestic law, the case for doing so must be clearly made out. I suggest that this is an issue upon which Parliament would be ill-advised to act until it is generally acknowledged that such a measure is required; and I do not believe that that position has yet been reached.
The committee pointed out in its report that there is no lack of criticism of the convention itself. Even 28 years ago when it was drawn up it represented only the minimum standards accepted by all the participating countries, and the committee, I believe rightly, said that it was in no doubt that in a good many respects our present law can claim to do a good deal better than the minimum standards laid down in the convention.
There was common ground in the committee on certain matters. For instance, it came to the conclusion that if it were decided that we should have a Bill of Rights, it should take the form of a Bill giving effect in our domestic law to the 1390 European Convention; and for my part I agree with that, and with the reasons that it gave. There was also a broad measure of agreement on the question whether a Bill of Rights could be entrenched, and the committee came to the conclusion that to enact a Bill of Rights in such a way as to prevent any subsequent Parliament from amending or repealing it just is not practicable.
My Lords, in regard to where we stand internationally now by reason of the posture we have taken so far, I confess that I was disturbed, as was the noble Lord, Lord Allen of Abbeydale, when he first approached this matter, at the view that we were the "bad boys" in this field, that we were more brought to book before the relevant tribunals—the Commission and the European Court—than any other country, and that the attendant adverse publicity to our country in particular was therefore very damaging. If that was right it would indeed be a cause for concern, but it is not. It is not true to say that our record in this respect is worse than those of other countries, even those which have incorporated the convention as part of their domestic law.
It may be worth looking at the figures for a moment. In 1975 and 1976, about 750 individual applications were registered out of around 4,000 communications to the Commission. Out of the 13 convention countries which have recognised the right of individual petition, we lie second in the league table to the Federal Republic of Germany, from which there were 231 applications, while there were 205 from ourselves. France, by the way, has not accepted the right of individual petition at all. If one looks at the ratio of the number of applications made per million of population of each country, the picture that emerges is as follows. I do not know how valuable these statistics are, but they are interesting en passant. The league table is headed by Switzerland, with 9.5 applications per million of the population—half a Swiss creeps into that statistic, as your Lordships may have noticed—followed by Austria, 8; Belgium, 7; West Germany, 3.8; ourselves, 3.6; closely followed by Denmark, with 3.5. So at any rate those figures do not support the argument that our record is worse than that of other countries, or that we are politically vulnerable because of non-incorporation.
1391 My Lords, in view of the lateness of the hour I will not go into the question whether incorporation will reduce the length and cost of proceedings. I do not believe it will have that effect. The right of individual petition to the Commission can be exercised only when the petitioner has exhausted his remedies under our law, and I think it by no means follows that incorporating the convention would make this preliminary process less expensive than it is now; nor would a complainant who decided to take his complaint to Strasbourg get there any sooner.
Conflicts between domestic law and the convention arise, and were expected to arise when the machinery of the convention was set up; and I do not think it is any more shaming to this country than it is to any other signatory of the convention that from time to time these disputes should go to Strasbourg for decision instead of being finally settled in our own courts.
In the course of the debate the noble Lord, Lord Plant, and the noble Lord, Lord Blease, mentioned the position in Northern Ireland and the desirability of incorporating the convention so far as Northern Ireland is concerned. I share their concern, as I am sure we all do, that civil liberties in Northern Ireland should be maintained in face of all the difficulties which exist there, though it is clearly necessary, as indeed the noble Lord, Lord Plant, has himself emphasised, to impose some limitations under the temporary emergency legislation.
As the Standing Advisory Commission on Human Rights pointed out in their recent report, the body of measures in force designed to protect human rights in Northern Ireland and prevent discrimination is impressive and should not be underrated, but it is the case that many groups in the Province, including the Standing Advisory Commission itself, believe that human rights would be further safeguarded by the enactment of a United Kingdom Bill of Rights—and both the noble Lords I have mentioned expressed that point of view. Although the Government are not yet convinced of the need for such a Bill, they have repeatedly said that they will not hesitate to introduce further legislation to protect 1392 human rights in Northern Ireland in specific areas if that can be shown to be necessary. On another occasion we may have an opportunity to discuss this matter in the specific context of Northern Ireland, no doubt, but we are grateful that their interest and concern has not been overlooked in this debate.
In coming to a conclusion, there is at least agreement, as I have said, about the issue of entrenchment and the most practical form in which a Bill of Rights might be enacted. The proposition that the failure of the United Kingdom to embody the convention in our domestic law is inconsistent with our obligations under the convention was rejected by the Committee—and, I believe, rejected rightly.
Reference was made by the noble Lord, Lord Allen, and by the noble and learned Lord, Lord Scarman, to the case of Klass, which has been decided since the Committee reported. That decision is of course being studied by the Government's advisers, but I doubt that a firm conclusion on the effect of Article 13 of the convention can be reached without further clarification by the court itself. The court's judgment in that case is clearly an important one, but its full implications, as the noble Lord himself said, are not yet entirely clear, and as at present advised it seems to the Government to fall far short of requiring all States who are parties to the Convention to embody the Convention in their law. I am afraid that, at this stage at any rate, I cannot throw further light on the matter than that.
The fundamental issue which the Select Committee were unable to resolve was whether it is necessary to provide a further statutory safeguard for human rights in this country by enacting a Bill of Rights. The arguments for and against are set out clearly and, I think, fairly in the report, and it has made a valuable contribution to the continuing discussion of the question. But I have to say to the House that the Government do not feel that they would be justified at present in introducing a Bill on the lines advocated by the noble Lord, Lord Wade, whose persistence in this matter we all admire. Where a constitutional step of this importance is proposed, I believe the onus must be on those who advocate 1393 it to make clear beyond peradventure the need for such a change. Despite the quality of what has been said in favour of it tonight, I remain unpersuaded that at this stage it would be right for the Government to take the initiative that is proposed by the noble Lord.
§ 8 p.m.
§ Lord ALLEN of ABBEYDALE
My Lords, I have two very good reasons for being very brief. First, that the hour is late; and, secondly, that the more I say the more evident it will become that the appreciation expressed for the work of the Chairman of the Committee is really quite undeserved. But I am grateful for it. I am also grateful for the kindness which the noble and learned Lord, Lord Hailsham, displayed in informing me about his being late for the beginning of the debate. I would just say that, as a result, it is worth putting on the record that there were two points arising which I think he missed in the course of our earlier discussion. The first was that on the question of entrenchment the Committee took the view, for good or bad, that if the Bill of Rights were enacted and a subsequent Act was inconsistent with the Bill of Rights—either express or implied—and really could not be reconciled with it, the later Act would have to prevail. The other point was that the noble Lord, Lord Wade, agreed that in the light of the discussion in the Committee —and he said this in his speech today— Clause 3 of the Bill as he originally introduced it, would not do. I think he favoured the alternative form of words, or something on those lines, which the Committee themselves advocated.
One thing that I was not very clear about, and perhaps he could elucidate it when he winds up, is whether he also accepts that thought would have to be given to the whole variety of other things that I listed in my opening speech; whether, for example, there should be specific provision about remedies; whether there should be a specific provision about derogation, and all the rest of it. He rather gave me the impression that he thought that if there were a new Clause 3 he could reintroduce the Bill with that Amendment. But I think he went along with us on the Committee in thinking that there were all these other problems to be thought about. The answer might be 1394 that no provision should be made on, at any rate, some of them; but a lot of consideration would have first to be given.
One other point which emerged is that there has been a great deal of discussion about help to the individual if Strasbourg was no longer a court of first instance, as it were. But it is worth bearing in mind that once an individual had exhausted his remedies in the courts in this country, the way to Strasbourg would still lie open. Reference was made to Golder, who took five years to get his case decided in Strasbourg; but it is arguable that if he had been able to go to the courts here first it would have taken six.
§ Lord ALLEN of ABBEYDALE
My Lords, I said that it is conceivable. I think, knowing the facts of the case and the attitude of the courts at that time, that it is, at any rate, possible, if not probable. It certainly could not be ruled out, as I think the noble Lord will agree.
There has been reference to the Klass case from West Germany. I shall not say anything more about the merits of it; but, as I recall, that was a case which was settled by the West German Constitutional Court in 1970 (I think I am right in saying) and judgment was finally issued by the Strasbourg Court in September 1978.
There has been some criticism of the European Convention. I think the noble and learned Lord, Lord Salmon, did not view it with unmitigated approval and the noble Baroness, Lady Elles, took the point that, for example, it does not include social and economic rights. This is true. But, without going over all the argument again, it seemed to us that it was the European Convention, warts and all, or nothing. I would also take the point which was referred to in our report, and which has been repeated in the debate, that many citizens feel helpless and many members of the minorities in this country feel helpless in coping with the public authorities who appear to dominate their lives. It seems to me that there is a risk of a Bill of Rights being oversold if the impression is given that, overnight, as it 1395 were, it would mean that Paradise had been attained. I think personally that there is a good deal in the comment made to us by Professor Arthur of York University in Canada, to whom reference has been made. He said:A society which is contemptuous of the values embodied in a Bill of Rights will not be made virtuous by the enactment of such a Bill; and a society which is deeply committed to such values has little need of the Bill".My Lords, I do not want to go over all the arguments, for and against, which have been discussed; but, in spite of the eloquence of the noble Lord, Lord Wigoder, I feel that there is something in the point that the opponents made in the report that it is fallacious to suggest that to make the Convention part of our domestic law would simply be to give to our judges the same sort of role in relation to the convention as is played by the judges in Strasbourg. I also cannot help feeling that, in spite of all that has been said, to put this convention on to our Statute Book in this form would introduce a long period of uncertainty while the courts were working out, on the accident of the cases which happened to come before them, what exactly was the impact of these general provisions on our existing detailed law. If we were discussing a new constitution, my reaction could be very
§ different; but we are not. Without in any way feeling complacent about it, I still remain of the view that I am opposed to the Amendment moved by the noble Lord, Lord Wade.
§ Lord WADE
My Lords, all that I will say to the noble Lord, Lord Allen of Abbeydale, is that I agree that there are some further points but that they are not so formidable as some noble Lords may think. We have had an interesting, learned and well-informed debate. There are obviously several points which I should like to make in answer, but I think that the kindest thing I can do to the House is to scrap them. May I just draw your Lordships' attention to the effect of defeating the Amendment? There has been very long discussion over a number of years; the Committee and others came to the conclusion that if anything is to be done this is the best way ahead. If the Amendment is defeated, then this movement may be put off for a long time to come. I hope that that will not happen.
§ 8.8 p.m.
§ On Question, Whether the Amendment shall be agreed to?
§ Their Lordships divided: Contents, 56; Not-Contents, 30.1397
|Airedale, L.||Gladwyn, L.||Redcliffe-Maud, L. [Teller.]|
|Amherst of Hackney, L.||Gowrie, E.||Ritchie-Calder, L.|
|Ampthill, L.||Hailsham of Saint Marylebone, L.||Robson of Kiddington, B.|
|Banks, L.||Hale, L.||Rochester, L.|
|Barrington, V.||Halsbury, E.||St. Just, L.|
|Beaumont of Whitley, L.||Hampton, L.||Scarman, L.|
|Blake, L.||Hornsby-Smith, B.||Seear, B.|
|Blease, L.||Houghton of Sowerby, L.||Skelmersdale, L.|
|Bowden, L.||Kilmarnock, L.||Stamp, L.|
|Brockway, L.||Macleod of Borve, B.||Stone, L.|
|Byers, L.||Mishcon, L.||Swaythling, L.|
|Carr of Hadley, L.||Mottistone, L.||Swinfen, L.|
|Colville of Culross, V.||Mowbray and Stourton, L.||Tanlaw, L.|
|Craigavon, V.||Moyne, L.||Trefgarne, L.|
|Denham, L.||Northampton, M.||Vivian, L.|
|Drumalbyn, L.||O'Hagan, L.||Wade, L. [Teller.]|
|Evans of Claughton, L.||Onslow, E.||Wigoder, L.|
|Falkland, V.||Pitt of Hampstead, L.||Winterbottom, L.|
|Gaitskell, B.||Plant, L.|
|Allen of Abbeydale, L.||Gregson, L.||Northchurch, B.|
|Aylestone, L.||Hamnett, L.||Peart, L. (L. Privy Seal.)|
|Castle, L.||Hylton-Foster, B.||Phillips, B.|
|Davies of Leek, L.||Inglewood, L.||Segal, L.|
|Diplock, L.||Kirkhill, L.||Stewart of Alvechurch, B.|
|Elles, B.||Lee of Newton, L.||Strabolgi, L. [Teller.]|
|Elliot of Harwood, B.||Leonard, L.||Taylor of Mansfield, L.|
|Elwyn-Jones, L. (L. Chancellor.)||Llewelyn-Davies of Hastoe, B. [Teller.]||Wallace of Coslany, L.|
|Fisher of Camden, L.||Ward of North Tyneside, B.|
|Foot, L.||Morris of Borth-y-Gest, L.||Wells-Pestell, L.|
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Motion, as amended, agreed to.