§ 4.10 p.m.
§ Lord Wade
My Lords, I beg to move that this Bill be now read a second time. As some of your Lordships know, the object of the Bill is to incorporate in our law the principles contained in the European Convention on Human Rights which have already been ratified by the United Kingdom Government. A year ago I moved the Second Reading of the same Bill and I explained that I was doing so for the third time. I am now moving it on Second Reading for the fourth time. Therefore, I shall not attempt to go over all the same ground again.
As to the history of the Bill, I think that I need give only a very brief outline. The first time I moved the Second Reading was in the nature of a dummy run, as we were near the end of the Session. However, the Bill was given a Second Reading, although I did not anticipate that it could get any further. On the second occasion the noble and learned Lord, Lord Hailsham of Saint Marylebone, moved an amendment, the effect of which was to propose that the whole subject should be considered by a Select Committee. Of course, the noble and learned Lord is now the noble and learned Lord the Lord Chancellor. I readily accepted the proposal of a Select Committee, and the Select Committee was duly appointed.
I should like for one serious moment to turn aside from my remarks. A distinguished member of that Select Committee was the late Lord Gordon-Walker and I should like to say what great services he gave to Parliament, in both Houses, and how sad we are at his passing.
The outcome of the deliberations of the Select Committee was, first, disagreement as to whether 534 there should be a Bill of Rights. There was a narrow majority in favour of a Bill of Rights. Secondly, the committee was agreed that, if progress was to be made, it should be along the lines of my Bill. The report of the Select Committee was debated in this House, and I think that it is fair to say that there was a comfortable majority in favour of proceeding with the Bill.
Therefore, I introduced it again, having regard to the observations in the report of the Select Committee. That was a year ago. The Bill passed through all its stages in this House, with some amendments on Committee and Report, which I think improved the Bill. It was sent to the Commons, and the First Reading in the Commons was in January of this year. There it struck. The official reason, which I have no grounds for doubting, was that all available time was required for Government business. With our knowledge of the last Session, I am not really in a position to deny that there was a great deal of Government business in that Session. The result was that my Bill lapsed. Therefore, I had to consider what to do. I decided to have another go. So here I am. It so happens that I have a family motto which means "Never give in". In the light of that, perhaps your Lordships will forgive me for moving this Second Reading for the fourth time. If the Bill is passed, it will give the Commons another chance to consider it.
In view of the careful thought that was given to the Bill when it was in this House previously, I do not intend to go through the clauses in the Bill in detail, but, if any points are raised during the course of the proceedings on this Bill, of course I shall be only too ready to answer them, or to attempt to do so. However, I think that the time at my disposal can be put to better advantage if I deal with a few of the underlying issues that have been raised during this past year. Although there has been no debate in the Commons, I have received many letters; there have been many articles written; and there have been conferences, some of which I have been able to attend. Certain observations keep arising. I think that it would be most helpful if I were to say a few words about those, particularly those which are relevant to the Bill.
First, I recognise that the desire to give greater protection to individual rights and freedoms is not necessarily wholly covered by this Bill. I would admit that. But although this Bill is not dependent on other constitutional changes, there are matters of a constitutional nature which are relevant. For example, it has been pointed out in discussions which I have had that there is an extreme anomaly in the present electoral system whereby 35 per cent. or at most 40 per cent. of the electors voting can produce a majority in the House of Commons from which there may be formed a Government claiming to have a mandate. That Government may take actions which affect the basic freedoms, even though they do not represent a majority of the electors, or at any rate there is no evidence that a majority of the electors approve. That is given as an example of the need for reform, and for that and various other reasons there seems to be a growing demand for some kind of Bill of Rights.
The question arises: if that is so, what form should the Bill of Rights take, even as a first step? I have 535 received at least two books setting out in great detail a completely new set of principles appropriate to a Bill of Rights, with the arguments for taking that course rather than relying on the European Convention. I appreciate the force of that argument, but two practical difficulties must be faced. Looking at this from a political point of view—from the point of view of experience in Parliament—I realise that to draw up a completely new Bill of Rights, a completely new set of principles, and to get each clause through both Houses of Parliament would be an immense task. Furthermore, if that were achieved, how exactly would this new set of principles be interpreted by the courts alongside the articles of the European Convention, which have already been ratified? The Select Committee was aware of this problem and, although differing on the question whether there should be a Bill of Rights, it agreed that the best way ahead was on the lines of my Bill. Meanwhile, the time factor has to be taken into account. It arises in a number of ways as things are at present. Apart from the delays which occur in getting an individual petition to the Commission and then to the European Court, there are cases where the law in the United Kingdom and the articles of the convention differ. If I may, I am going to give two examples, not at very great length. The long battle over the thalidomide case and the Sunday Times article provides an example. I refer to it partly to illustrate this problem of the time factor that may be taken in reconciling the European Convention and our existing law.
In September 1972 the Sunday Times published an article headed, "Our Thalidomide Children: a Cause for National Shame". They announced their intention to publish a further article dealing with the history of this tragedy and of the manufacture and testing of thalidomide. Following representations from the makers and sellers, the Attorney General, claiming that publication would constitute a contempt of court, applied for an injunction to stop publication. The injunction was granted, against which there was an appeal. Ultimately the House of Lords upheld the order restraining the Sunday Times from publication of the proposed article. That was on 18th July 1973. I hope I have summarised a very complex subject accurately.
On 26th April 1979—that is, six years later—the Court of Human Rights delivered judgment on the question as to whether there had been a violation of Article 10 of the European Convention. The court by a majority held that there had been a violation in restraining the publication of the Sunday Times story. It is true of course that in the meantime the injunction had been discharged. A Bill has now been introduced into this House entitled the Contempt of Court Bill. It is premature to discuss it now but it may go some way towards reconciling our law with the opinion of the Court of Human Rights. However, to achieve this reconciliation has taken a long time.
There is just one other example which I shall take as an illustration not so much of the time factor as of the conflict between our law and the principles of the convention. In saying this I do not for one moment suggest that the principles to be found in our laws generally are not often as good as or maybe superior 536 to those found in the convention. This is a point which in fact is covered in my Bill. But sometimes there is a gap.
Take the example of telephone tapping. May I quote Sir Robert Megarry in Malone v. Commissioner of Police of the Metropolis in 1979. I am quoting here from the All England Reports 1979, Chancery Division. The House of Lords' Library has kindly provided me with a copy of the whole of that judgment in case anyone wishes to refer to it. The issue that was raised—and of course it was one of a number of issues—was whether the plaintiff's rights of property, privacy or confidentiality were breached in the light of the provisions of the European Convention.
I do not wish to take words out of their context but I do not think I am doing so if I give two brief extracts from Sir Robert Megarry's judgment. In one passage in his judgment he said:Certainly in law"—and he was referring to British law—any 'adequate and effective safeguards against abuse' are wanting. In this respect English law compares most unfavourably with West German law: this is not a subject on which it is possible to feel any pride in English law".Earlier in his judgment, in referring to the right claimed under the European Convention, he observed:any such right is, as I have said, a direct right in relation to the European Commission of Human Rights and the European Court of Human Rights, and not in relation to the courts of this country; for the Convention is not law here.That, I think, is the crux of the matter. We have a treaty obligation to observe the terms of the convention, but that does not make the articles part of our law.
One further matter that has been raised in the discussions that I have had at conferences and so on, and the last of the queries that I am going to mention, is one that is raised from time to time. It is put in this form. The question is, "Will these proposals in your Bill give too much power to the judges?" Personally, I think that this fear is ill-founded. In such a distinguished company and with so many distinguished lawyers here, I speak with some trepidation. However, I personally do not think it is correct that a Bill such as this will give undue power to the judiciary, and I would also suggest that there is some inconsistency on the part of those who argue along those lines.
For example, the international judges at the European Court are apparently all right, but the British courts are regarded as in some way not capable, or fitted, to apply general principles in matters brought before them. That I find difficult to accept. But on the wider issues of the role of the judiciary I look around the world and I look at countries where there is a trend towards a dictatorial system of government, and I find that in most cases the executive, or the political heads, are trying to gain control over the judiciary, but I do not find matters the other way round.
Of course everyone here may differ about a particular judgment or a particular statement by a learned judge. One would not expect otherwise in a free country. But, frankly, I see no sign of the judges trying to take over the running of this country. I see no great threat to parliamentary democracy coming from the judiciary. What matters is the maintenance of an objective, independent judiciary.
To return to my Bill, Parliament will still make the 537 law and the function of the courts will be to carry out the law, or attempt to do so: there is nothing in my Bill which alters that general principle. But I regard the reforms that would be put into effect by its passing as justified and desirable, and, if the Bill is placed on the statute book, I have little doubt that some day, some individual or some group will be thankful for it. At least if we here believe in the value of a two-Chamber form of government, it seems to me appropriate that we should enable that form of government to operate by sending the Bill to the Commons so that the Commons may again have a chance of giving it the full consideration it deserves. It is with that hope that I ask your Lordships to give it a Second Reading. I beg to move.
§ Moved, That the Bill be now read 2ª.—(Lord Wade.)
§ 4.32 p.m.
§ Lord Boston of Faversham
My Lords, my first task is a very pleasant one indeed. It is to congratulate the noble Lord, Lord Wade, on the tenacity and persistence he has shown in moving the Second Reading of the Bill, for it is the fourth occasion on which he has moved a Bill along these lines, and I congratulate him too on the way in which he introduced it today. In fact, until I heard his speech I thought there was very little new to say on the subject, so frequently have we debated it in your Lordships' House; but the noble Lord has put his arguments in a refreshingly new way, so there is no call whatever for any forgiveness of him. All the same, I have been feeling for some time that, as a number of us have been debating these matters over quite a period now, it really is time the noble Lord formed us into a Bill of Rights club; but I would hope that membership would be open not only to those of us who are supporters of his Bill but also to those of us who are, like myself, past and present opponents of it.
Some of us, supporters and opponents, have joined in debating these matters not only here but outside the House as well. Indeed, one event that took place since our last debate in this House, during the last Session—this may have been one of the conferences which the noble Lord, Lord Wade, had in mind when he referred to conferences—was a seminar on a Bill of Rights organised by the Northern Ireland Standing Advisory Commission on Human Rights, which was spread over three days last April and which was not focused on Northern Irish affairs, though they came into it, but which was a wide-ranging examination of the whole proposal for a Bill of Rights and which, incidentally, was chaired by my noble friend Lord Plant, chairman of the commission in Northern Ireland, and addressed by, among others, the noble Lord, Lord Wade, himself, and the noble and learned Lord, Lord Scarman, who gave the keynote address at that conference, and participating was my noble friend Lord Blease, a member of that commission.
I mention that not to give a plug to those who took part—perhaps it is a little late for that now, anyway—though the seminar has been followed by the publication recently of a paper-back book entitled Do We Need a Bill of Rights? based on the seminar, with a preface by the noble and learned Lord the Lord Chancellor; so perhaps it is not too late to give a plug to that, though I would hasten to add that the contributors do not get anything out of it. I mention these 538 events because they demonstrate the importance and continuing interest in this whole matter, whether one is for or against a Bill of Rights like this one, which would incorporate the European Convention on Human Rights into our domestic law. These are indeed matters of constitutional and individual personal significance.
I must tell your Lordships that my views remain the same as they were when I expressed them in the Second Reading debate on 8th November of last year, so I remain opposed to the Bill. I hasten to add that I do not speak for everyone on these Benches in taking that view, for this is a matter on which different views are held in all parts of the House and in all parties. As we have seen in the past, the Cross-Benches are similarly divided, with noble Lords and—this is not without significance—noble and learned Lords (for they too are divided among themselves) taking different views about it. This fact also helps to emphasise that no one, whether for or against a Bill of Rights, has a monopoly of enthusiasm for human rights and their protection and promotion. I believe we are united in that aim. I would add here that I wish to join in the tribute paid by the noble Lord, Lord Wade, to my late noble friend Lord Gordon-Walker, whose sad loss we all suffered this week and who played such a distinguished part here and in another place in the affairs of our country over so many years. We shall miss his friendly counsel on this as on so many other matters.
In our debate on 8th November of last year I had the opportunity from this Bench to spell out some of the main arguments against a Bill along these lines, as did my noble and learned friend Lord Elwyn-Jones, and therefore I will not take up the time of the House unnecessarily by spelling them out in detail again now; and I am sure the noble Lord, Lord Wade, will not take it amiss if I simply refer briefly to some of those arguments, but I feel that some of them need at least a passing mention so that they do not go by default. Among the most fundamental arguments against incorporating the European Convention into our law is the objection that it would graft on to our existing law an Act of Parliament in a form which would be completely at variance with our existing legislation.
As we know, under our constitution it has long been established and accepted that Parliament legislates in a specific form, and that it is then the job of the courts to interpret that legislation. But under these proposals we should be adopting a wide range of legislative policies in the most general of terms, and then say to the judiciary, "It is up to you to develop them in the way you think fit". Thus, we should be giving them here not just an interpretative role but the task of developing the law on a wide range of subjects, and among those which have been mentioned in the past are freedom of speech, freedom of the press, privacy, race relations, education, forms of punishment and so on. What we have always tried to do in Parliament, although I confess we have not always succeeded, is to pass laws which are as certain as possible and to seek to spell them out with precision, and that is after all what people have a right to expect.
That leads on directly to another major objection to incorporation, the uncertainty which would be created; uncertainty about the extent of the rights the 539 convention purports to confer. I agree with those who say that the courts would be confronted by problems of interpretation in spheres which are highly controversial, something which they are not best suited to deal with. Indeed, there would be no guidelines to help the judges in interpreting those rather vague general statements of principle; and concern has recently been expressed about certain difficulties in that particular connection.
The uncertainty would also in turn lead to a substantial increase in litigation—something that has been acknowledged by supporters as well as by opponents of the Bill itself. One example sometimes claimed as a benefit to the individual under the convention relates to privacy. But one wonders what benefit the individual citizen would gain from saying that he is entitled to respect for his private and family life under the provisions of, say, Article 8 of the convention unless he knows whether that protects him from breach of that privacy by, say, the press or harassment by the press, and alleged breaches of privacy of that kind, as are claimed from time to time, as we know only too well from recent events.
Parliament has shown itself repeatedly to be ready to legislate in new spheres of law-making so as to try to meet needs shown to exist, arising from new social problems; and that in my submission is Parliament's role. It is the role of the legislative arm under our constitution, and I believe that it is far better for Parliament to enact detailed legislation, as it has, for example, on such matters as sex discrimination and race relations, rather than to hand over the task in effect to the judges, who are not elected and are not there in any representative capacity. That is not the role of the judges under our constitution, and it is not a role which should be thrust upon them, either. As some noble and learned Lords in your Lordships' House have said, it is not a task that most of them would wish to have. So I join with some noble and learned Lords in your Lordships' House who, with respect, differ on this point from the views of the noble Lord, Lord Wade, and others.
There are just two other matters that I want to mention. The first I should like to mention merely in passing. It relates to the proposal we have heard about, that the EEC should accede to the European Convention of Human Rights. All I should like to say about that matter today is that many of us would want to be assured that such a proposal would be fully and thoroughly considered quite independently of any other proposal—for example, the one that we are discussing this afternoon—and that Parliament would have time to consider it. We should certainly wish to be assured, too, that such accession would not amount to incorporation of the convention into our domestic law by the back door.
I now wish to turn to the one other matter that I wanted to raise. I am quite sure that all of us, whatever view we take, are committed to the cause of human rights, and so we are all positively devoted, I have no doubt, to protecting and furthering the development of those rights. But there is, I think, sometimes a danger that those of us who support the views that I have been putting forward may to some people seem to take a negative approach. That, my 540 Lords, is far from the case. Indeed, far from feeling in any way defensive about these views, I confess that I am positively, and in fact passionately, in support of them, and I for one do not feel that the present system needs to be excused in any way. Although it certainly needs improvement, I would continue to argue strongly in favour of it.
It seems to me that one of the great values of this whole debate is that both sides are positive in their approach. There is one aspect of the approach of those of us who are against the Bill that I want to emphasise. I believe that we must set about introducing in a systematic way specific reforms in the human rights sphere. No doubt like many other Members of your Lordships' House, I have long been conscious of the need for us to try to create some machinery to make certain that reforms in this sphere are actively pursued and that the necessary detailed legislation is introduced, and therefore I was greatly encouraged when my noble and learned friend Lord Elwyn-Jones, in one of our earlier debates on a Bill of the noble Lord, Lord Wade, put forward a proposal aimed at seeking to achieve precisely that. As my noble and learned friend indicated, we must aim to observe and maintain to the full the principles embodied in the convention; and it may well be that special measures are required for this purpose.
In order to protect the citizen's fundamental rights I would agree that the best course might now well be to carry out a general review of our law so as to identify any points on which it falls short of the convention's own ideals, and so as to put right any defects or shortcomings that there may be in our legal provisions or procedures on these matters. What was suggested as perhaps the most effective approach was to set up a standing commission on human rights to do that, though not a commission with the wide range of functions which are sometimes suggested for a body of that kind. There could indeed be distinct advantages in having a standing body of that kind charged with the task of reviewing the law to make sure that it complied with our international obligations in the human rights sphere, including the European Convention itself. What was envisaged was a body independent of the Government, and consisting of people with a range of legal and other expertise, which would in published reports make recommendations for reform to the Government and Parliament.
Of course, even with new machinery of some kind, whether along those lines or some adaptation of them, there would remain the problems of the parliamentary timetable. It is sometimes said by supporters of the Bill that one argument in favour of it is that Parliament has not the time to enact the necessary reforms, so give them to the judges to develop. However, while it is true that there are indeed limits to the amount of legislation that we can get through, in my submission it is no solution to hand the reforming task over to the judges because—to give just one example of a practical reason—they can of course deal only with the cases that are brought before them. They have to wait for that to be done. So with that arrangement there is no prospect at all of systematic reform, nor indeed prospect of getting a particular reform necessarily more quickly than Parliament could bring it in, even if one were prepared to accept such a role for 541 the judges, anyway.
However, on the idea that I have mentioned, an authoritative body such as that, which brought forward precise proposals, would not be easy either to resist or to ignore. We have already had some practical experience of a somewhat similar system, in the way in which the Law Commission operates and brings forward not just reports recommending reforms, but draft Bills as well. I believe that we owe a great debt to the Law Commission, (set up under the Law Commissions Act 1965), to my noble and learned friend Lord Gardiner who, as Lord Chancellor, introduced the Bill leading to that Act; and indeed to the Law Commission's first chairman, the noble and learned Lord, Lord Scarman.
What would also be particularly valuable would be to try to devise and to build into any machinery set up some provision for according legislative priority to its proposals, though of course I recognise the difficulties about that. Certainly one suggestion that was made to me by one non-parliamentary student of our constitutional affairs I suggest would not be acceptable. It was for a special committee of Parliament which would treat the commission's draft Bills with a streamlined procedure of some kind, such as delegated legislation or statutory instruments. If for no other reason, that would clearly be unacceptable not least because if dealt with in that way, they would not be subject to amendment. However, there is a positive proposal for a new reforming system which I feel is worth considering further, though it would of course need to be worked out in detail and spelt out fully.
So while I cannot support this Bill, in view of the previous debates and Second Readings that similar Bills have attracted, I certainly could not ask my noble friends to divide on this Bill. I would conclude by offering warm congratulations to the noble Lord, Lord Wade, on the way in which he has introduced this Second Reading.
§ 4.50 p.m.
§ Lord Scarman
My Lords, I, too, should like to congratulate the noble Lord, Lord Wade, on the persistent determination he has shown in the cause of human rights and n the cause of this Bill over a number of years. Indeed, so persistent and determined has he been that a founder member of the noble Lord's Bill of Rights club—namely, myself—has been heard so often on this subject, both in your Lordships' House and elsewhere, that I hesitate to repeat my arguments, which, in the words of Juvenal, could now be described as crambe repetita—stale cabbage. Therefore, I shall resist the temptation to go over the ground again, even though I have been dreadfully provoked by the charming repetition of the fears that animate that other member of the club, Lord Boston of Faversham. He is certainly welcome to the club—and I speak as a founder member—so long as he sits on the other side of the table and keeps quiet when founder members indicate the positive reasons for the existence of the club.
Looking at the arguments adduced by the noble Lord, Lord Boston of Faversham, I was struck by the underlying atmosphere of fear—fear of what might come if this Bill was introduced; fear of what the judges might do if this Bill was introduced; fear of throwing over the habits and conventions of our partliamentary 542 draftsmen of the last 100 years and actually attempting to legislate on principle instead of in that obscurity of detail which has given me and others the opportunity of a by no means poverty-stricken career at the Bar.
There is no particular joy in specific legislation for everything. Specific legislation in the field of tax, certainly; specific legislation in other fields, certainly; but when one is dealing with human rights, and when one is dealing with constitutional questions, let us follow the rather more ancient traditions of our ancestors, those who drafted Magna Charta and those who drafted the Act of Settlement and Bill of Rights 1689, and use the language of principle. I shall endeavour to say a few words a little later as to why, indeed, there is no danger in the noble Lord's Bill of a judicial take-over of the state. Indeed, I think it is arguable—it is the view which I certainly hold—that the Bill will limit by guiding the power of the judges. But before I come to that, let me say just one or two things which I hope were not said by me in November 1979, when we last discussed this Bill.
I agree with the noble Lord, Lord Wade, being myself an observer of the way the European law is developing and the way English law is developing, that there is increasing evidence that English law is falling out of step with the obligations which the United Kingdom assumed when, many years ago now, it ratified—that is to say, accepted internationally—the obligations of the European Convention of Human Rights and Fundamental Freedoms. I could enumerate examples. The noble Lord, Lord Wade, took an excellent example. He took the contrast between the House of Lords decision on contempt of court in the Sunday Times case and the subsequent decision of the European Court of Human Rights when the Sunday Times challenged that decision of the House of Lords in the European Court in Strasbourg.
There was a difference of opinion between the European Court and the House of Lords. Do not think for one moment that that is more than a minor embarrassment. It is not. But it is a little embarrassing that we have to introduce by statute, as we are proposing to do with the Contempt of Court Bill, a number of clauses (I suppose the noble Lord, Lord Boston of Faversham, would say that they are specific clauses, but they are clauses, nevertheless) designed to correct a decision of the House of Lords taken judicially, so that our law becomes consistent with the decision of the European Court of Human Rights. It is a minor embarrassment, but it is a very indicative one, as I shall illustrate.
The real reason why I should like to suggest to your Lordships' House that it is high time the European Convention was introduced into our municipal law in the way this Bill proposes is that our legal system is suffering through the absence of the European Convention from our law. I will take just two illustrations, though there could be more. First, under Article 13 of the convention, each member state is obliged to provide an effective remedy before a national authority for anyone who claims that his human rights or fundamental freedoms, protected by the convention, have been infringed. The number of petitions that are made by citizens of this country to the European Commission claiming an infringement of their rights is indeed a depressing commentary on the availability 543 of a remedy in this country.
Why, indeed, should our citizens, whose human rights have, on the international plane, been guaranteed by the United Kingdom, have to go off to Strasbourg? If this European Convention was incorporated into our law, they could at any rate get the ruling of a national court, of a British judge, on their case, that judge looking at and interpreting (in accordance, no doubt, with the European jurisprudence) the particular provision in the convention which was said to have been infringed. If, at the end of the day, he is dissatisfied, of course he can still go to the European Court; but at any rate he would have the satisfaction of knowing that we had done our duty under Article 13 and had provided him with a national authority—that is, a British court—in which he could air the grievance that a right of his, which the United Kingdom thinks is worth protecting, had in fact been infringed. I am a little disturbed that we are in consistent non-compliance with the requirement to provide our citizens with an effective remedy before a national authority for breaches of the convention, and I can see no sure way of meeting our obligation unless we enact this Bill or in some other way introduce the European Convention into our municipal law.
The other matter which troubles me and which I think should trouble your Lordships is that, unless we incorporate the European convention into our law, our legal system is going to be isolated, our judges are going to be isolated. We are members of the Common Market, we are members of the Council of Europe. Under the Common Market, we are indeed obliged to harmonise our laws and approximate our laws as recommended from time to time by the European Commission and, of course, within the limits of the Treaty of Rome. As members of the Council of Europe and as signatories of the European Convention, we are indeed bound to see—it is in Article 1 of the convention—that our citizens (indeed, everyone present within our jurisdiction and not only citizens) have the rights which the European convention confers.
My Lords, because the convention is sound only in international law and is not part of our municipal law, two things follow. Our judges cannot look at it directly when they have a human rights problem to resolve and, secondly, the wisdom and experience of our judges and the traditions of English law never become available for consideration by the European Court. That is what I mean by isolation. Our judges can only look at the European Convention, so to speak, under the counter when dealing with human rights, and the European Court does not have the benefit of the wisdom and experience of our judges and, indeed, the values available to it of our jurisprudence. These are serious matters and it means that our law must be impoverished to that extent.
The noble Lord, Lord Boston of Faversham, said that he hoped that in this debate we should not get confused between a recent proposal of the European Commission that the European Communities should accede to the European Convention and the subject matter of this debate—which is, of course, introducing the European Convention into our municipal law. As a member of the Select Committee of your Lordships' House dealing with the law of the European 544 Communities, I would mention that a report is about to be published on that problem of the accession of the European Communities to the European Convention; and I am hoping that that report will be debated and the problem considered on its own merits early next year. But I agree with the noble Lord, Lord Boston of Faversham, that we can disregard it entirely in this debate.
For the reasons that I have given, as well as for many other much more profound reasons which I have developed in the past, I support this Bill and I hope that your Lordships will give it a Second Reading. I am not troubled by the fear expressed by the noble Lord, Lord Boston of Faversham, that the judges will thereby secure an imbalance of power. Let me indicate briefly why not. There has been a great development brought about by judicial decisions since the end of the war in what lawyers call administrative law; that is to say, the judges have developed a singificantly new jurisprudence dealing with the judicial review of the acts of Government, central and local. By rules of court, the ancient prerogative writs by which that jurisdiction used to be exercised have been swept away and now, under Rules of the Supreme Court, an aggrieved person can apply for a judicial review. But the whole of this is procedural only. Yet it is of some significance that in the Supreme Court Bill which this House will be debating on Second Reading, I think, next week this procedural reform has been considered sufficiently important to be taken out of the rules of the Supreme Court and put into a clause of that Bill, Clause 31.
That gives to this procedural reform an importance which I am sure some judges will seize upon quite reasonably and say, "Here is Parliament putting into a statute our powers of judicial review. We must exercise these powers". How are they to do it? At the moment they have to look around the whole field of case law unguided by statute to see how they will control or review the acts of central and local government. If we were to introduce into our municipal law the European Convention, we should provide the judges with a minimum body of principle covering the more important human rights and fundamental freedoms on which they could build; and it would be provided, as the noble Lord, Lord Wade, has said, by Parliament, by the people's representatives. The judges would not be exercising their discretion, giving effect to some subjective notion that they might have of justice or injustice; they would be looking at a statute passed by Parliament and saying, "Here are the principles upon which we can exercise judicial review". The more one looks at that situation, the more one realises how unjustified are the fears of the noble Lord, Lord Boston of Faversham, and how valuable in controlling judges as well as in controlling politicians, legislators and civil servants, the passing into law of this Bill could be.
I say no more except that even judges, even in fact, old judges, have from time to time happy dreams. I had a dream this week; and the dream was that those legislators who gather in another place had adopted a convention that when the House of Lords had passed through all its stages on at least two occasions a Bill designed to protect and safeguard our human rights, they would at least find the time to debate it.
§ 5.9 p.m.
§ Lord Gardiner
My Lords, some of us have been here before several times. This is, I think, the fifth time, and it may be that there is nothing more to be said particularly by those who support the Second Reading of this Bill and in view of the speech which has just been made by the noble and learned Lord, Lord Scarman. But there are one or two additional points that, if I may, I should like to make. First, there are cne or two new elements. The first new element is the very recent decision of the Government to continue the optional clause for another five years. That means that, for the next five years at least, our citizens, if this Bill is not passed, will be unable if there is a clear breach of the convention, to have the point settled by their own judges, as the citizens of most other large European countries can do. I say at least five years because I apprehend that even at the end of five years, if the Government were to decide to resile from the convention altogether, this would not affect cases already in the pipeline, although of course in that event we should no longer be bound to carry out the ultimate decision of the Strasbourg court. This means that for about 10 years we are going to be deprived for no good reason that I can see of the opportunity of having these cases decided in the first instance by our own judges.
I am additionally grateful to the noble Lord, Lord Wade, because I still feel that the more that this problem is discussed, the better. There is still quite a good deal of misunderstanding about it. I have been in the habit of discussing the question with friends in the other place, with members of both the Labour and the Conservative Parties. I find that their objections are quite different from those expressed by the noble Lord, Lord Boston of Faversham.
I say no more about his proposal that we should have a special body which would be set up to review and make reports on matters in the field of human rights other than to remind him that at no time in my lifetime have the corridors of power been so stuffed with reports of Royal Commissions and departmental committees which have not even been discussed in either House of Parliament and which go back certainly over the past 10 years. Even the reports and draft Bills from the Law Commission on which no action has been taken have never had quite so much of a build-up. I meet with difficulties of rather a different kind. I find that when I discuss this, for example, with my friends in the Labour Party, they are first of all very apprehensive that the court at Strasbourg might make a decision outlawing the extreme form of the closed shop which they say would upset the trade unions. Secondly, they are apprehensive that a decision by Strasbourg might allow parents greater freedom in the choice of the schools to which to send their children and thus make difficulties in the field of a more comprehensive system of education.
When I discuss it with my friends in the Conservative Party, I find that they are apprehensive that the Strasbourg court might insist on our having a law on telephone tapping, laying down when and by whom telephone tapping would be legal and when it would not. When I remind them that this is indeed very probable, and I think certain, from the existing decisions of the court, I say to them, "Is not the 546 Conservative Party essentially a party which believes in the rule of law? If it believes in the rule of law, is this not a field in which there ought to be legislation?" and they say, "Yes, perhaps that is right". Indeed, as the Vice-Chancellor, in the case to which the noble Lord, Lord Wade, referred, said, in his own view this was a subject which was crying out for legislation because at the present time there is no law on the subject at all. What we do is based on a convention following the advice of three wise men who sat many years ago.
If I say to my friends in the Labour Party, "Would it not be a good thing if the convention decided that this ought to be a matter of law?" they say, "Yes, of course it would be". If I say to those on the Conservative Benches, "Would you be happy if they decided to outlaw the closed shop in the extreme form?" they say," Yes"— each thinking of the things that they dislike and not thinking of the decisions that they would not like to see made. When I argue this out with them, I find that it is not difficult in practice to convince them, starting off with being against the Bill of this kind, that on the whole the advantages are greater than the disadvantages. Therefore, I hope that we shall go on discussing the subject.
I do not know whether the noble and learned Lord, Lord Mackay of Clashfern, can help me at all on one point. I have not given him notice of it because I anticipated that the noble and learned Lord the Lord Chancellor would be replying to this debate and he would know the answer. If the noble and learned Lord does not know the answer, perhaps he can write to me. He did intimate when we discussed this last that he would be favourably disposed to all-party discussions at a high level about the Bill. I do not know whether these discussions took place or how far, if they took place, they were confidential or what has happened about them. If the noble Lord can tell us, perhaps he will be good enough to do so; and, if not, perhaps he will write to me.
I have never seen any real disadvantage in the proposal. I have also attended many conferences on this subject, at many of which judges were present. I cannot think of any single judge that I have met who thinks that there would be any difficulty from a judge's point of view. I remember an experienced judge saying, "If this Bill was made law tomorrow, nothing would happen at all. But in a matter of months some young, up-to-date barrister in the county court would say: 'I am also relying on the European Convention', the county court judge would ask: 'What on earth is that?'". Ultimately, the case would go to the Court of Appeal. I cannot imagine any reason why these cases cannot be disposed of in most instances by our own judges.
§ Lord Boston of Faversham
My Lords, I am grateful to my noble and learned friend Lord Gardiner for giving way. I wonder whether he will recall statements, for example, which have been made in our previous debates by the noble and learned Lord, Lord Diplock, and the late Lord Morris of Borth-y-Gest, expressing very strong and quite severe fears about handing to the judges the powers that we have been discussing. These are statements which have been made over the past couple of years.
§ Lord Gardiner
My Lords, I would not be surprised if some judges did not take a different view because my experience of the judiciary—which goes back a long time—is that there is practically no subject on which the judges are ever unanimous. But, broadly speaking, the average judge sees no difficulty in it. It would be a great saving of expense and time to our own citizens. Now we have about 10 years to look forward to anyhow. I should have thought that even as a matter of seeing what works and what does not work, if we passed this Bill—we can always pass another Bill later—it would give us an opportunity at least in the next five years and possibly thereafter to see how it works out. I have never been able to see any practical difficulty about it. I hope that before long we shall pass it into law.
§ 5.18 p.m.
§ Lord Salmon
My Lords, a long time ago I used to regard the unwritten constitution as a blessing. It was superbly flexible; it worked, and worked admirably, and stood the test of time. Some years later, when I gave the Haldane memorial lecture, I said that there might be a real danger that times would change. Today I am convinced that—alas!—times may be rapidly changing now. There are so many countries in which the light of liberty has long ago gone out. Their law courts became the tools of the regime to carry out its policy of oppression. Innocent people were and are imprisoned, often for years and sometimes for ever, and even executed without a trial; or at best there are mock trials. To criticise the régime is a criminal offence visited with dire consequences.
Often large sections of the population are prevented from earning their living and subjected to intolerable indignities and abominable cruelty purely because of their political convictions or ethnic origins. In the United Kingdom individual liberty has been rooted in our soil for a good 200 years; it is in the very air we breathe. But can we be so sanguine as to believe today that what has happened in so many countries abroad, or something like it, cannot happen here, unless we take reasonable steps to protect ourselves now? Can anyone be so sanguine as to suppose there is now no real risk that our individual liberty, and indeed our basic human rights, might be threatened and then destroyed?
When these rights are threatened with destruction, those who rally to defend them will need every safeguard they can muster. It will be too late, indeed hopeless, to try to build new safeguards then. We must do it now if we are to have any hope of defending liberty and human rights. This is why I want to see our basic human rights and the protection of our liberty enshrined in a statute which might be called "the Statute of Liberty".
Such a statute must be written in the clearest and simplest language which every man or woman who can read will easily understand. This statute would give our judges the power to declare invalid any Act which conflicts with the statute of liberty. This would not make the judge run the whole of our affairs: it would give him his ordinary duties of looking at the statute of liberty and then having a good look at what the Government of the day had put forward. I am not 548 talking about the ordinary Government; I am not talking about any Government who would consist of the parties as we now know them. But I am talking about the danger of our getting a Government who would be something entirely and absolutely different.
I am certain that our judges have the courage unhesitatingly to accept the power they would be given under the statute of liberty. It is also essential that this statute should contain a clause entrenching it by laying down that it cannot be amended or repealed, except by a Bill passed by the votes of no fewer than two-thirds of the elected Members of another place and by the House of Lords; and even then it should not become law until after it is approved by no fewer than two-thirds of all the votes validly cast in a referendum.
I do not believe that a highly complicated written constitution or the Bill of Rights we are considering today would be of any use to protect our human rights and liberty. The meaning of the former—that is, the complicated written constitution—would not be understood by the ordinary man or woman, and it is imperative that it should be. The latter merely recites—and I hope I am not saying this unfairly—that the rather turgid and ambiguous European Convention for the Protection of Human Rights shall become part of our law.
The Bill of Rights clearly states in Article III that it can be repealed at any time by Parliament. The European Convention relates to much the same human rights—not to all—but almost to all the same rights as those now protected by the common law. Accordingly, Article III, in stating that the Bill of Rights can at any time be repealed by Parliament, strongly suggests that such a repeal could only be made by a Parliament controlled by a totalitarian Government; and it is against the extremeness of a totalitarian Government that we need a strong defence. It seems that Article III might be an encouragement and support for a totalitarian Government to destroy individual liberty, and I wish I could believe that I am imagining that a totalitarian Government might come to power. I do not want to go into this in detail, but there is so much evidence today that I think even the most optimistic man could never accept that there is not a very real danger that in the near future that we shall have a totalitarian Government in power. That is why I think we need a statute of liberty now.
This totalitarian Government may be—and I think certainly is just round the corner. The power of the judges to protect us must be established soon; otherwise, if this totalitarian Government, as George Orwell envisaged, should attain power by 1984 or thereabouts there would be nothing to prevent it destroying the basic rights and liberty of our people. If the law were to remain as it is at present, this destruction of our basic human rights could be done little by little by one unnoticed Act after another, just as it was by the Nazis. If, however, the statute of liberty is passed, I have no doubt that our judges would unhesitatingly declare invalid any Act which sought to diminish or eliminate individual liberty and human rights. The only way in which any of these rights could then be abolished would be by the repeal or the amendment of the statute of liberty itself.
I am confident that the spirit and tradition of our 549 people would throw out any totalitarian Government or dictator who attempted to amend or repeal a statute which embodied their liberty and freedoms. That is why I want the Act to be so simple and clear that every man and woman will understand that anyone who was attempting to repeal it or cut it down was attempting to deprive them of their basic rights and liberty, which they cherish so dearly.
There are some who consider that there is no need for such a statute. My noble and learned friend Lord Denning, in his brilliant Dimbleby Lecture, stated that the judges, as the common law now stands, have the power to rule that any statute passed which is contrary to justice or reason can be rejected by the courts. I respectfully completely disagree and I do not think that any of your Lordships, and none of my noble and learned friends, would consider that the law as it now stands does not compel our judges to uphold any statute, however abhorrent it may be.
Indeed, we all know that the judges have no power to alter or reject a statute. Their duty is to construe it and apply it and, if they do not like it, they still have to apply it or retire. This has, of course, happened in many of the countries to which I have referred. Many of their judges said that they would not be seen or heard by anyone, let alone by the Almighty, enforceing any Acts such as those put before them.
I, of course, recognise that even if we had such a statute as I have suggested, laying down our human rights, and a totalitarian Government came into power and set about destroying those rights, it is just possible that the Government might be thrown out if the country understood what was happening.
The real danger is that the country would not understand until it was too late. Human rights would be eroded little by little, by obscure and complicated Acts which were difficult and, indeed, impossible for a layman to understand, and one day our people would wake up much too late and find that individual liberty was dead and impossible to resuscitate.
The great advantage of having a statute of liberty would be that, although the population as a whole would not understand the complex Acts by which totalitarian Government was attempting to destroy human rights by erosion, there would, however, be a number of people who would understand. As a result, each such Act, as soon as it was passed, would be challenged in the courts and declared by the judges to be invalid, because it conflicted with the very clearly written statute of liberty.
The totalitarian Government would then recognise that, if human rights were to be cut down or eliminated, the statute of liberty which laid down and entrenched those rights would have to be repealed or amended; and that they would, I have no doubt, indubitably attempt to do. But any attempt to cut down or eliminate the statute of liberty would make it crystal-clear to all men and women that the sole object of the totalitarian Government was to abolish the statute, because it protected and preserved the people's basic human rights, which they cherished dearly. This would, I am sure, result in the elimination of the totalitarian Government, since it would be clearly attempting to rob our people of their human rights and liberty, which I am certain they would never knowingly 550 surrender, but which, indeed, they would fight to the death to defend.
§ 5.36 p.m.
§ Lord Blease
My Lords, as noble and learned Lords have mentioned, the arguments both for and against a Bill of Rights in the United Kingdom have already been heard on many occasions in this House. For a number of reasons, but especially because we are an unelected Chamber, I hope that on this occasion the Bill of the noble Lord, Lord Wade, may have an opportunity of a wide, vigorous and informed debate by the elected Members in another place.
I rise to make a few brief comments on the Bill of Rights, as I see some of the issues. But having heard and noted what has been said by noble and learned Lords who have taken part in this debate, with their great breadth of expert knowledge and understanding of the subject, it is with a great degree of hesitation that I rise. However, there are at least two reasons why I feel that I should voice an opinion in this debate.
First, I believe that it would be a serious omission if arguments about a Bill of Rights appeared to be the prerogative or the sole concern of constitutionalists, academic specialists or even Members of Parliament. There are, of course, many technical and subsidiary problems that arise when any constitutional measure is considered for revision or reform. Some such measures as entrenchment, derogation or incorporation require debate and expertise. But the issues arising from the introduction of a Bill of Rights pose many questions outside legalistic and mere technical matters.
In my opinion, a Bill of Rights should articulate the basic human values that must be recognised in law as above all other rules and values in a democratic State. It must insist that certain rights and privileges must be offered to all individuals. These declared rights are so vital to individual citizens and to democratic society that they should not be detracted from because of mundane pressures or other exigencies. Such rights must be broadly stated, and the reciprocal obligations on which they depend require to be clearly and carefully framed, so that they are widely understood and respected. A Bill of Rights, as such, constitutes an issue for wide public discussion and today, when human values are being wantonly flouted, it is as important as any other issue on the political agenda.
My second reason for voicing a viewpoint in this debate is the particular relevance of the question of a Bill of Rights in the context of the persistent and complex social, religious and political problems of Northern Ireland. Already my noble and learned friend Lord Boston has referred to the special seminar in which a number of noble and learned Lords in this Chamber took part, and which resulted in the publication of an excellent book by the Standing Advisory Committee on Human Rights, edited by Professor Colin Campbell, the Dean of the Faculty of Law of Queen's University, and the preface has been written by the noble and learned Lord the Lord Chancellor.
I should like briefly to read a paragraph which I consider is very important in this context, from a note in the book by Professor Colin Campbell. In referring to Northern Ireland, he said:The seemingly intractable problems of Northern Ireland during the continuing violence and terrorism have sorely tested 551 the adequacy of law, its methods and integrity. It is probably not an exaggeration to say that 'the troubles' in Northern Ireland have, for many people, lent particular urgency to consideration of a Bill of Rights. For people in Northern Ireland the rights and freedoms, life styles and privileges, taken for granted in most Western countries have been regularly suspended during the past decade or totally destroyed".Professor Colin Campbell also referred to a very important point which explains, I think, what has been gained in Northern Ireland, when he states:There is some agreement that a Bill or Charter of Rights is required for Northern Ireland; but no one with any experience of the situation holds to any naive assumption either that such a measure would end the continuing violence or that rights can be discussed without careful attention to associated duties and obligations".Your Lordships will be aware, as I am, of the series of consultations about the possibility of a devolved government for Northern Ireland. It is my opinion that any progress towards a devolved system of government in Northern Ireland must be underpinned by constitutional safeguards, such as a Bill or a charter of Rights, which will help to prevent abuses of power and provide adequate protection for all citizens.
Already some reference has been made in this debate to the specific legislation that could be introduced, dealing with aspects of human rights. In the last decade Northern Ireland has seen many measures aimed at the prevention of discrimination, not least the 1973 Constitution Act itself. There has also been the introduction of the offices of Parliamentary Commissioner for Complaints and the Parliamentary Commissioner for Administration. However, neither Northern Ireland nor Great Britain, nor the United Kingdom as a whole yet has an internal Bill of Rights. That, I suggest, is of fundamentally different character from specific legislation.
Among other things, I believe that a Bill of Rights can be a safety net below the tightrope of specific legislation, such as the Race Relations Act or the Fair Employment Act. A Bill of Rights does not in my view dilute the need for specific legislation; it works hand in glove with it. Among other things, a Bill of Rights can act to protect those groups and individuals who do not have the political muscle to have specific legislation enacted and who might otherwise become disaffected.
Today we are talking in effect about the incorporation of the European Convention on Human Rights—I think we have many lessons to learn from the twin organs of that convention—the commission and the court. Indeed, the commission in the recent Dudgeon case makes my point, perhaps more cogently than I can make it. Speaking with regard to the specific laws dealing with aspects of homosexual activity in Northern Ireland, the commission stated that legislation on certain matters did not fall within the unqualified gift of a political majority.
I realise, as I am sure many of your Lordships realise, that the people in Northern Ireland are not putting up barricades to protect or to change the laws concerning homosexuality. Your Lordships will know that the people of Northern Ireland are more deeply concerned and anxious about the protection of human life and standards of living. At the same time I consider that the decision of the commission in the Dudgeon case upholds an important principle concern- 552 ing the suitable protection of minority interests. I think it may be helpful if I quote from their report which states:exceptions in Article 8(2) to the fundamental right to respect for private life must be narrowly interpreted … It would be quite contrary to this principle to interpret Article 8(2) as allowing a majority an unqualified right to impose its standards of private morality on the whole of society".What the commission stated is an important principle. It is also one which we in this House, who do not have to face an election, might find it easier to recognise than those in another place. But we must also recognise that the parliamentary process is not infallible. Our past experiences show that those concerned with passing legislation from time to time approve unintended breaches of international commitments, or omit to pass legislation which would rectify existing breaches of fundamental rights.
I know it is not necessary for me to repeat in this Chamber parts of the European Convention on Human Rights, but for the record I should like to quote at least part of Article 8(2) which provides:There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing 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".This highlights one advantage to the ordinary man: his case will be considered in accordance with true democratic principles, with compassion for the minority and in accordance with the needs of a plural society. I should like to re-echo a question which has often been asked both here and in Northern Ireland in the context of the European Convention and its application: Why should an individual have to go to Strasbourg to have such a remedy? This involves considerable time and expense. A further practical advantage of a domestic Bill would be that the issue could be resolved within the United Kingdom by either a court or perhaps a conciliatory commission on human rights, backed by a court based on the European model.
To sum up, I would quote from Professor Colin Campbell in the book on the Standing Advisory Commission on Human Rights, in which he says:No matter the pressures or exigencies of any particular situation, some values need to be recognised as pre-eminent".Along with other noble Lords and others in Northern Ireland I share that view and suggest that, despite technical difficulties which are far from insuperable, we can claim an internal Bill that will meet the needs of the ordinary people in a domestic Bill of Rights. Accordingly, I hope that the result of the introduction of this Bill will be that all our citizens will have the dual protection of a concrete declaration of right allied to practical remedies. For these reasons I support the Bill.
§ 5.49 p.m.
§ Lord Simon of Glaisdale
My Lords, I have not hitherto presumed to address your Lordships on the subject under debate. Obviously, there are powerful arguments on both sides which have been put forward on this, as on previous occasions, and noble Lords for whom I have very great respect and noble and learned colleagues have differed on this measure. 553 Your Lordships have heard today a sober and far-reaching speech from my noble and learned friend Lord Salmon. There is an old piece of political wisdom; namely, that the best can be the enemy of the good. It may well be that a statute of liberties is the best; it may well be that a commission on human rights is the best. But because I have come to be convinced that this Bill embodies the good I hope your Lordships will give it a Second Reading.
I have come to that conclusion for three main reasons. The first is that the human rights with which we are concerned, those in the convention, are already vouchsafed to the citizens of these islands, but in order to vindicate them they have got to go to the commission and then to the court, at great expense and with great delay. Justice, not least when it is concerned with the vindication of human rights, which is made expensive and delayed is a denial of justice. Moreover, by having to go to the commission and to the court the views of the judges of these countries who will know the local application is lost.
The second reason that has impelled me to this conclusion arises from a reference made by my noble and learned friend Lord Diplock in a previous debate to the jurisdiction of the Privy Council. All over the Commonwealth in the former dependencies there are written constitutions embodying the sort of rights with which your Lordships are concerned today and expressed in somewhat similar terms of generality. The noble Lord, Lord Boston of Faversham, thought that that would lead to uncertainty, but I think the experience in the Commonwealth has shown that that is not so. Moreover, what it has shown is that judges who are trained in the English legal tradition have no difficulty that I have seen in applying the embodiment of these rights to the forensic situation with which they are concerned. Nor when the matter comes to the Privy Council have the English and Scottish judges any difficulty that I have seen. The noble and learned Lord, Lord Diplock, is in fact a conspicuous example—although he himself is an opponent of this Bill, or was previously—of how an English judge can deal quite brilliantly with the sort of concepts with which your Lordships are concerned in this Bill.
The other thing that we have found in the Privy Council is the great value of local consideration of the issue. Very often where we do not have the local consideration the case is remitted for local consideration in the light of the ruling of law. I think my noble and learned friends would agree that that is almost an invariable practice and is quite valuable. That shows how really perverse it is to say that these rights, with which your Lordships are concerned, may be considered in Europe but must not be considered in the United Kingdom by a United Kingdom judge.
The other thing that strikes me about the Privy Council jurisdiction relates to the apprehension that these sort of entrenchments of human rights will bring judges into politics. The first thing is that judges already are concerned with human rights in so far as—and it is a very considerable extent—they are vindicated by the common law and by the statute law of the United Kingdom. And the second thing is that the Privy Council jurisdiction shows that the judges can exercise their jurisdiction dispassionately, that they are not in any wrong sense brought into politics.
554 The third main reason can be stated very shortly; that is, I am convinced that this Bill will give a measure of flexibility to our law in several respects in which it is at the moment stultified. Again the noble Lord, Lord Boston, mentioned one matter that struck me, and that is privacy. I see no hope of legislative advance in that sphere after the Younger Report with its dissent; and so long as Parliament cannot move the judges cannot move, unless they are given some such charter as this which will enable them to give a little more flexibility and justice to the law. For those three main reasons I have been convinced of the desirability of this measure, and I hope your Lordships will give it a Second Reading.
§ 5.57 p.m.
§ Lord Houghton of Sowerby
My Lords, I hope I shall not disappoint any noble Lord who thought the debate was coming to a conclusion just now, but my name was unfortunately omitted from the list and at the last moment I thought the most satisfactory remedy was for me to contribute at the end. This accounts for my intervention at this stage.
I am not a founder member of the club; I have not been here before. I have supported this Bill right from the beginning and when positive support was called for I gave it, but I have not previously troubled your Lordships with my point of view. I think that this Bill becomes more relevant and to some extent more urgent as time goes on. I shall still refer to it as a Bill of Rights, though I fully appreciate the weighty concept of a statute of liberty which was put forward by the noble and learned Lord, Lord Salmon. But in these days of tourism so many people, more people, have seen the Statue of Liberty that there may be some inconveniences about the confusion that might arise between the Statue of Liberty and a statute of liberty. So I think the noble and learned Lord might wish to reflect a little further on whether he has made the right choice of title.
I am sure your Lordships are very grateful to the noble Lord, Lord Wade, for his persistence. There should be a kind of Parliament Act in reverse, so that when your Lordships' House has passed a Bill four times it should go to another place and immediately receive the Royal Assent. Or, at the very least, provision should be made in the business of another place for a Bill which has had weighty and repeated support in your Lordships' House. Any tiddly Bill can come from the House of Commons and claim your Lord-ships' time. I think that we are coming to the stage when that little grievance between the two Houses might receive some attention.
Where power truly lies in this country is becoming of increasing importance to the good order and stability of society. We speak of the sovereign power of Parliament in which, as Sir Winston Churchill once said, a majority of one vote is enough. But the theory of our law-making is that Acts of Parliament are enacted by the Queen with the advice and consent of your Lordships' House and of the Commons. In practice, under our constitutional Monarchy, the Crown is believed and expected to be advised by Ministers and to do whatever is the will of Parliament.
However, I think that the question arises as to whether the Royal Prerogative any longer offers any 555 protection against the actions of an elective dictatorship. Whether there are any conceivable circumstances in which the Crown would demur or even decline to give the Royal Assent I do not know and I am certainly not going to speculate. However, presumably the Labour Party Conference regarded the abolition of your Lordships' House as giving rise to no problem of that kind, whether after a referendum or otherwise. Indeed, it has been confidently suggested that, in the event of a Government having trouble with a Bill to abolish the House of Lords, some hundreds of stooge Peers could be created to get the abolition Bill through this House. That presumably rests upon the precedent, which is frequently referred to as historical fact, that King George V assured Asquith that he would consent to making enough additional Liberal Peers to get the Parliament Bill 1911 through the Lords, if that proved necessary.
I do not think that it is desirable to pursue the question as to whether the Crown would, in certain extreme conditions, exercise the Royal Prerogative to withhold consent from a Bill which had passed through both Houses of Parliament. We must assume that the Crown would not. We must assume that the doctrine of the sovereign power of Parliament is firmly rooted in our constitutional practice. If we do that, then I think that it imposes upon us the duty of ensuring that the institution, wherein lies the reality of sovereign power, is composed, constituted and properly empowered to exercise that power.
The existence of two Houses of Parliament, each complementary to the other, used to provide a safeguard against an abuse of power by either House. But the Parliament Act and subsequent Acts have removed much of that safeguard. As regards expenditure and taxation, for example, we in this House have no power or responsibility. A majority of one in the Commons is enough to impose taxation upon the people, no matter how unfair or however burdensome. How far the judges can or should have power to protect the citizen from injustice at the hands of Parliament is a matter upon which the noble and learned Lord, Lord Denning, recently gave a fascinating and lucid Dimbleby Lecture.
However, if we are to have a supreme court on the model of the United States, then we must either have a written constitution or a Bill of Rights; or, if neither, the court would then have to build up an extra statutory body of law out of decided cases. And, as my noble friend Lord Boston of Faversham has pointed out, it would not be complete; it would be spasmodic and confined to cases that came before the judges for decision. I think that it is difficult to see how the courts could in any case then avoid a clash between the judges and Parliament which might become very dangerous in various ways. So I leave that aside as a possible safeguard against the abuse of political power.
Therefore, the choice remaining seems to me to be between a Bill of Rights or a reform of Parliament, and it could be a combination of the two. But certainly I have diminishing confidence in our electoral and parliamentary system to safeguard the citizen from the abuse of power by constitutional authority. If nothing or too little is done to make the institution of Parliament more representative and more accountable, then a 556 constitutionally entrenched Bill of Rights becomes essential. That is becoming more clearly necessary as we see the gulf widening between the two main parties into extremes of doctrine and policies.
The greater the polarisation of our politics with extremes of Right and Left, the more imperative it is to ensure that our elected Parliament reflects the body and strength of political opinion within the electorate. That is not practical under our electoral system today. That is the case for electoral reform and I think that we must take that matter more seriously. It has not been mentioned in the course of the debate so far.
Although I do not share quite the same sombre spirit of the noble and learned Lord, Lord Salmon, I believe that our Parliament cannot last if we continue as we are at present. Already at this very time we are hearing the insistent challenge to the authority of Government. Under our present system Governments of both parties have become unpopular and under pressure and threat within months of being elected. That is simply because the authority of the Government, the authority of the majority party in the House of Commons, rests upon a false mandate under our electoral system, or may do so and usually does so.
I shall not in this debate rehearse the overwhelming case for change, and nor shall I spend time on meeting the misguided objections to it. But I firmly believe that there is in this country the basis of greater unity and of greater strength in our people if only they were not torn violently apart by unnecessary incitement and aggression within the body politic. If we fail in this regard, then I think that we shall have to go through much more anguish. Power is already slipping away from Parliament. Parliament has neither the representative strength nor the resources to stop it. Popular movements to bring down the Government have been heard of more frequently since the mineworkers were credited with having brought down the Heath Government in 1974. While Mr. Foot insists that only the ballot box can be used to bring down Governments, unless Parliament itself resolves to do it, other voices are urging other ways, and they will become louder.
My concluding thought is that this Bill should be kept on the hotplate while our politics and Parliament show whether they can withstand the wrath to come. I hope that I am not being unduly pessimistic. I am not quite as pessimistic as the noble and learned Lord, Lord Salmon. I do not think that Britain can have a totalitarian Government with a reformed electoral system. I know that our institutions have withstood many upheavals, but there comes a time in history when they collapse or are overthrown. The world is a dreadfully unsafe place at present, and it is important to make sure that the democratic base of our own society is fair, firm and secure.
§ 6.10 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern)
My Lords, I share the disappointment of the noble and learned Lord, Lord Gardiner, that this particular speech is not being made by my noble and learned friend the Lord Chancellor, but unfortunately on this occasion it has fallen to me. As a newcomer to the scene, I hope that the noble Lord, Lord Wade, will not consider me presumptious if I add my congratulations to those which have gone before, not only on his 557 perseverance but also on the very gracious and informed way in which he introduced this Bill for the fourth time to this House. I am sure that we are all satisfied that no member of his family has better earned the family motto, to which he referred, than he himself.
I should also like to say (if I may do so without presumption) how much I appreciated the many new ideas that were brought forward, although this debate has taken place on a number of earlier occasions. I think that there was very little repetition of what was said before, which I am sure is something that we should appreciate. I should also like to say how pleased I was that the noble and learned Lord, Lord Salmon, is with us, and also the noble and learned Lord, Lord Simon of Glaisdale; and that they have participated on this occasion and made such significant contributions to the debate. In doing so, of course, I also appreciate all the other contributions that have been made.
As your Lordships know, this is an extremely important subject and it is one to which a good deal of consideration has already been given. Among the considerations that have been given to this subject, I should like to refer to the Select Committee of your Lordships' House, and pay tribute to the work of that committee. I should also like to take this opportunity of joining in the tribute which the noble Lords, Lord Wade and Lord Boston of Faversham, paid to the late Lord Gordon-Walker, who played a valuable part in the work of that committee. The fact that a Select Committee of your Lordships' House should divide six to five on this matter shows how difficult the question is and how finely balanced are the considerations on both sides. Paragraphs 32 and 33 of the report summarise the arguments for and against a Bill of Rights. Perhaps I could attempt—and this is without disrespect to what has already been said—to summarise, perhaps even more briefly, the two sides of the argument.
To try to summarise, the advantages, it might be fair to describe them as: first, a positive and public declaration of rights, especially valuable at a time when there is concern among many people about the growth in the power of the state, and these fears have been expressed by some of your Lordships; secondly, a possible improvement in the actual rights of individuals; thirdly, British litigants would be able to seek a remedy from British judges in British courts instead of having to go to the European Commission and Court at Strasbourg; and, fourthly, we would be bringing our practices more into line with our European neighbours in the Council of Europe, which is important when we are growing closer and closer to our colleagues in the European Community.
The main arguments against can perhaps be summed up even more briefly as; first, introducing a substantial and wide-ranging element of uncertainty into our law; secondly, the transfer from Parliament to the judiciary of decisions involving the interpretation or balancing of conflicting rights; thirdly, a fundamental change in the task and burden of the courts; and, fourthly, we could still find that decisions made in Britain were overruled at Strasbourg, and the embarrassment of that could continue.
The present situation is that the Government have not yet reach a conclusion upon whether this particular Bill of Rights is the appropriate way forward in the 558 field of human rights. That brings me to mention the questions which the noble and learned Lord, Lord Gardiner, put to me earlier. As was explained on the last occasion, the attitude of the Government to this is that such a matter of fundamental constitutional importance should if possible, proceed by agreement of all parties. Accordingly, the Government expressed an intention at a suitable time to attempt to set up constitutional talks between all parties to see whether we could reach agreement upon the manner in which the human rights problem should be taken forward. As the noble and learned Lord said, my noble and learned friend the Lord Chancellor wrote to the representatives of the parties in your Lordships' House by way of a preliminary inquiry, and we are hoping that in due course talks on these lines will, in fact, get under way. Nothing has so far happened. A number of matters have claimed the attention certainly of those in the Government who would participate, but it is hoped that arrangements may be made to see whether all-party talks on this subject could be set up.
§ Lord Hale
My Lords, if the noble and learned Lord would forgive me for interrupting him, have Her Majesty's Government considered the position of Northern Ireland in relation to this Bill? Do they propose at some time—it does not appear to be possible at the moment—to bring forward some measures for making the Bill apply to Northern Ireland? I put this point, not for argument but because of the gravity of the situation. Might it not be very disastrous in relation to Northern Ireland, in view of what my noble friend said, to talk about withdrawing jurisdiction from Strasbourg while a religious civil war is taking place in Northern Ireland, which we all know is not susceptible of easy solution in terms of easy definitions? I do not think it would be right to take this jurisdiction from an international court which has won a good deal of respect and which has achievements which few of us, who take a rather gloomy view of human rights in the modern world, had hoped could be established. If we say that we are taking this jurisdiction away from Strasbourg, then we shall have added fuel to the fires of hostility in Northern Ireland and we shall have given to those whom we call rebels—and, in my view, rightly call rebels—a new form of attack and a new form of antagonism.
§ Lord Mackay of Clashfern
My Lords, perhaps I should make it clear that Her Majesty's Government have no intention whatever of withdrawing from the existing Convention on Human Rights, with the jurisdiction of the Commission and the European Court of Human Rights. Indeed, I do not think I understood anyone who has taken part in the debate in your Lordships' House so far to suggest that. The only question is whether some additonal remedy should be available under a Bill such as this, incorporating the convention in our law and giving a domestic remedy, not in substitution for but in addition to, the remedies which presently exist under the Strasbourg Convention.
§ Lord Mackay of Clashfern
My Lords, I may not have made myself clear, in which case I must apologise to your Lordships for misleading you about the position I was trying to take up. I was summarising the arguments in favour and against a Bill of Rights such as the noble Lord, Lord Wade, has proposed. But I have never understood this Bill of Rights to be in substitution for our accession to, and ratification of, the Strasbourg Convention. In that Her Majesty's Government are at one with our predecessors. The Government have been fully committed to complying with the requirements of the 1950 convention, subject to the derogations that have been entered to it and our one reservation. I think, as the noble Lord, Lord Boston of Faversham, said, really we are all agreed about that, and I certainly do not wish to cast any doubt upon that whatsoever.
This attitude of Her Majesty's Government has been underlined by the decision announced by my right honourable friend the Prime Minister in the other place, and in reply to a Question by the noble Lord, Lord Wade, in this House on 25th November, to renew for five years our acceptance of the right of individual petition to the European Commission and of the compulsory jurisdiction of the European Court. The noble and learned Lord, Lord Gardiner, has already referred to that.
The attitude of the Government is that the difficult questions that have been discussed in this debate today, and have been discussed before, are matters upon which, if at all possible, it would be desirable to reach an understanding, a consensus, and, with a view to doing that, the Government will seek to set up talks for that purpose.
So far as the present Bill is concerned, the Government have not reached a view and it would be quite premature for them to do so in advance of the talks to which I have referred. I also understand that the state of business in the other place is such as really to give a Bill of this sort, which would require, as has been said, full and detailed discussion, little chance of finding its way to the statute book. While fully committed to conserving human rights and doing what we can to promote their interests within our jurisdictions in this country, the Government are not in a position at the moment to support the Bill for the reasons which I have given.
§ 6.23 p.m.
§ Lord Wade
My Lords, I should like to thank all those noble Lords who have taken part in this Second Reading debate. In my view, it has been a most important debate and every one of those who have taken part is a Peer of great distinction. The speeches which they have made have been not only worth listening to but I believe worth reading afterwards. Each speech deserves a full reply, but if I were to attempt to do that I should spoil the whole debate. I am well aware of that. May I therefore make just one or two brief comments and be forgiven for not 560 saying all the polite things that I could quite properly have said.
The noble Lord, Lord Boston, has debated with me before. I was going to say that this was the fourth round, but that sounds rather like a boxing match and he is so polite I could not compare any contest with him to a boxing match. We know that he is opposed, and that he believes that legislation should not be in a specific form. I think those were the words he used. At any rate, I know what he means. My answer to that is that of course the principles in the European Convention are in a more general nature, and we are bound by them under the convention if not in an actual statute. The other points he made, I respectfully suggest, were answered by the noble and learned Lords, Lord Gardiner and Lord Scarman.
I noticed that the noble and learned Lord, Lord Scarman, said that we were suffering from lack of incorporation, and in that I agree. He referred to that important Article 1 in the convention under which we have undertaken to secure to everyone within our jurisdiction the various rights and liberties. So we have given a promise, only it is by treaty and not by statute.
The noble and learned Lord, Lord Gardiner, is a great stalwart of this cause, and of course I listened to everything he said with great respect. He has mentioned the new elements in the situation. The noble and learned Lord, Lord Salmon, said that in earlier days he believed in the concept of an unwritten constitution. I think many lawyers were brought up on that belief. But times, as he said, have changed.
As to the statute of liberties, I am rather inclined to agree with the noble and learned Lord, Lord Simon of Glaisdale. I would just say that so far as our Select Committee was concerned we were bound to put forward proposals which came within our existing constitution. Whatever we may think about a statute of liberties it was beyond our terms of reference, and we were trying to think what could be done now in the light of the present situation, and it was out of that that this Bill emerged.
The noble and learned Lord, Lord Salmon, referred to Lord Denning. In my copious notes, which I have not used, I had one which said, "I do not agree with Lord Denning". Then I crossed it out because I thought it would be impertinent on my part, with so many law Lords here, for me to disagree with the noble and learned Lord, Lord Denning. But now I can say that I do not entirely agree with what the noble and learned Lord, Lord Denning, said in his address which was shown on television.
May I thank the noble Lord, Lord Blease, for helping to organise that very interesting conference in Northern Ireland, and thank him for his remarks. The very fact that we went to Northern Ireland for two or three days to discuss human rights shows that we are serious about human rights. I have already referred to the noble and learned Lord, Lord Simon of Glaisdale, but I am bound to say that I did not know beforehand which side he was going to come down on or what he was going to say. Therefore, his support was all the more impressive when I heard it.
I come next to the noble Lord, Lord Houghton of Sowerby. I am delighted that my old friend Lord Houghton has spoken. I welcome what he said. 561 I am aware that he has had such long experience of parliamentary life in both Houses. I agree with him about the dangers inherent in the present system.
That brings me, after that rapid survey, to the winding up by the noble and learned Lord, Lord Mackay of Clashfern. I should like to thank him for his reply. May I mention one small point: it was a narrow majority on the Select Committee, but it was a rather more substantial majority when the matter came before the whole House, and I think that point should be noted. I understand that the Government have not yet reached a conclusion. As to talks, the noble and learned Lord used the expression, "in due course". Those words are used frequently in both Houses of Parliament. I have never found a precise definition of the meaning of "in due course". I hope that it means early. With that, I should like to thank all those who have taken part. I beg to move that this Bill be given a Second Reading.
On Question, Bill read 2ª, and committed to a Committee of the Whole House.