§ 6.16 p.m.
§ Lord Denham
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Human Rights and Fundamental Freedoms Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.
§ Lord Broxbourne
My Lords, I beg to move that this Bill be now read a second time.
I do so fortuitously but perhaps appropriately on Human Rights Day. It would need somebody far more self-assured than I to address himself to the theme of human rights and fundamental freedom without a sense of diffidence and of my own personal inadequacy; conscious of the great difference, the contrast between the greatness of my theme and my own littleness; conscious too of the greatness of those who have made these things their concern over the ages.
These concepts have exercised the minds and fired the imagination of great men indeed. Rousseau said:Man is born free, and everywhere he is in chains.Jefferson defined the inalienable rights of man as,life, liberty and the pursuit of happiness".Two centuries later men are still seeking to strengthen these rights and freedoms, to proclaim their sanctity and guarantee their enjoyment. This Bill seeks to follow in that great tradition.
My speech today, like Caesar's Gaul, will be divided into three parts. First, I shall say something about the purpose and provenance of the Bill, then describe briefly its provisions and effect. Finally, I shall seek to deal with the doubts felt, criticisms expressed and misconceptions entertained in regard to the Bill.
The purpose of the Bill is I think clear from the Long Title and the Explanatory Memorandum. I shall expound further though not, I trust, wearisomely in the next part of my trilogy. The Bill has its roots deep in history. Human rights have long commanded the attention and engaged the aspirations of mankind. I mentioned two great protagonists, but this is not a case of exclusio alterius. There are many more whom I could pray in aid if time allowed. However, I say only this. This Bill is an attempt humbly but, I hope, 157 faithfully to follow in the path set, and add to the edifice erected by, in the Tennysonian phrase,those simple great ones gone for ever and ever by.Coming to its more recent provenance, in a sense the Bill derives from the European Convention on Human Rights, to which the United Kingdom adhered in 1952. That classic document was a manifestation of the aspirations for a better world which filled the minds and warmed the hearts of people in those years of hope and striving.
I should like to say a brief word about the previous considerations of these matters in your Lordships' House. When a Bill of Rights, which was introduced by Lord Wade, who is a highly respected figure and an old friend of mine from House of Commons' days was overtaken by Prorogation eight years ago, a select committee was set up to consider two questions: first, whether such a Bill was desirable; secondly, if so, what form it should take. On the first matter there was a division of opinion, six to five in favour; but on the second matter there was unanimity that if such a Bill were to be enacted, it should be based on the convention.
The committee was fortunate in the quality and authority of the evidence which it received. I should like to make particular mention of one witness, the noble and learned Lord, Lord Scarman, who testified to that committee on the desirability of such a measure and who has remained constant in his advocacy. Though this Bill stands in my name, in fact it is a joint effort, so those who may find the voice of Jacob less than persuasive can take comfort from the hand of Esau—though I hasten to say that, contrary to scriptural precedent, I expect Esau to have a good speaking part in these proceedings. The noble and learned Lord is president of the Constitutional Reform Centre and I should like also to express my appreciation of the help given by that body and its eminent director Mr. Richard Holme. The noble and learned Lord, Lord Scarman, as a Lord of Appeal has no party political affiliation of course, while Mr. Holme is a leading Liberal and I received the Conservative Whip through 11 Parliaments in the House of Commons, as I receive it now in this House—which your Lordships may think says much for the forbearance and kindly disposition of the Conservative Whip's Office.
This non-party or perhaps all-party approach is reflected also in the House of Commons. Among those who support the concept are senior Conservatives and Privy Counsellors such as Geoffrey Rippon and Terence Higgins, who used to sit alongside me in the third Bench below the gangway in that House. Geoffrey Rippon started his professional life devilling for me, so your Lordships will readily appreciate the great quality and talent required to achieve so distinguished a career after so heavy an initial handicap. Of course there are many other supporters in the House of Commons: Mr. Maclennan, the respected Alliance Member, who in 1983 introduced a Bill, which was different perhaps from my Bill in emphasis but similar in purpose; Donald Anderson, who is a senior Labour Member; Sir Edward Gardner, who is the recently retired chairman of the Society of 158 Conservative Lawyers; and many more. In summary, therefore, there is a broad basis of all-party support.
I proceed to my brief description of the content of the Bill, whose purpose and effect are clear from the Long Title and Memorandum: the provision in the courts of the United Kingdom of protection for the human rights and fundamental freedoms specified in the convention. The Bill ensures that judicial remedies will be available within the United Kingdom for all persons within its jurisdiction who have suffered, and can establish, breaches of those rights, or any of them. The rights and freedoms protected by the Bill, for the infringement of which judicial remedies will be available, are defined in Clause 1(2). In substance they are the rights and freedoms guaranteed by the convention as set out in Schedule 1 to the Bill.
Clause 2 is a key provision enacting that the rights and freedoms as thus defined shall have the force of law in the United Kingdom.
Schedule 1 is of great importance. It sets out the key articles of the convention, which are Articles 2 to 14, together with Articles 1 to 3 of Protocol 1. The rights specified in the convention and set out in Schedule 1 are self-explanatory and, I would think, unexceptionable. Article 14 prescribes the principle of nondiscrimination in the enjoyment of these rights. The three articles in Protocol 1 are concerned respectively with the peaceful enjoyment of possessions, the right to education and the obligation to hold free elections by secret ballot.
In regard to the educational provisions, Her Majesty's Government made a reservation at the time of signing the protocol and this is embodied in the schedule. The provisions of the first article are currently being tested on individual petition by Scottish Shipbuilders, and that is the sort of matter which, if this Bill becomes law, could and would be dealt with by the British courts.
Clause 3 prohibits breaches of fundamental rights and freedoms and makes such breaches actionable in the United Kingdom. Clause 4—perhaps like its namesake in another and better known context—is complex and important. Its aim is to ensure as nearly as possible, while respecting our constitutional doctrine of the sovereignty of Parliament, that the observance of human rights and the existence of indigenous remedies are securely based in British law. The Bill seeks to do this in two ways. Acts authorised before this Bill becomes law shall be subject to the limitation that they do not infringe any fundamental rights and freedoms. Subsequent legislation will be subject to the implication that nothing is required to be done which would infringe any fundamental rights and freedoms, unless the subsequent legislation expressly excludes this provision. Of course this is necessary to preserve our constitutional principle that Parliament cannot bind its successors, but the provision as drafted will guard against any inadvertent conflict with the rights and remedies prescribed in the Bill. There will of course be substantial political constraints against an express and proclaimed denial of such rights.
Clause 5 prescribes a limitation period which is subject to extension by a court in appropriate circumstances. Clause 6 is a technical provision 159 dealing with judicial notice. Clause 7 deals with procedural matters arising in "human rights issues", which term is defined as meaning questions arising under Clauses 2 to 4. The clause gives effect to Schedule 3, which ensures the right of Law Officers to take part in such proceedings and gives authority to the court to exclude frivolous or vexatious contentions. Clause 8 is technical—application of the Crown Proceedings Acts. Clause 9 gives a power of derogation by Order in Council in case of war or other public emergency.
I have already referred to the vitally important Schedule 1 which sets out the fundamental rights and freedoms which the Bill is designed to protect. They follow the articles of the convention and the Bill thereby gives effect to the unanimous view of the select committee that, if there were to be such a Bill, it should follow this pattern. The articles are self-explanatory and, whatever reservations some noble Lords may have as to the method, I cannot think that there can be any dissent from the importance of those rights and the desirability of protecting their enjoyment.
I turn therefore to the third and last part of my exposition. Of course there are misconceptions and of course there are criticisms, arising perhaps in the main from the misconceptions. The main criticisms, I would think, are three. The definition of rights, it is said, is too generalised and at variance with our normal jurisprudential practice. The Bill, in the view of some critics, constitutes a threat to or a derogation from our constitutional doctrine of the sovereignty of Parliament. And some contend that the Bill would impose a European or continental pattern on our traditional practice and procedure. I can deal with these matters together, as they are interrelated.
Of course we in Parliament have a jealous regard for the sovereignty of Parliament. We, or at any rate the older among us, were brought up on Dicey, with his twin pillars of the constitution; but Dicey did not set up the sovereignty of Parliament as a lone pedestal. There were twin pillars, and the other was the rule of law. My submission to your Lordships is that this Bill strengthens the one without undermining the other and will thus be a valuable safeguard to our constitutional structure.
It would be surprising indeed if parliamentarians who put the European Communities Act on the statute book in 1972 were concerned at the alleged loss of sovereignty of Parliament in a projected human rights Act in 1985. It would surely be a classic case of straining at the gnat after swallowing the camel. After all, Article 189 of the Treaty of Rome says that the regulations of the Community are,binding in their entirety and directly applicable in the Member States".That is a real and substantial diminution of parliamentary sovereignty, to which by our adherence to the treaty we are committed in law and in good faith.
Here let me correct another misconception, if I may. The European Convention on Human Rights is not an instrument of the EC. It is the product of a different body, the Council of Europe; and its court at Strasbourg is not to be confused with the European 160 Court of Justice at Luxembourg which exercises jurisdiction under the treaty.
I return then to the criticism that the approach is too generalised and imposes a European pattern on our procedures. The answer, I should think, is twofold. First, we are already bound to give effect to generalised rights by reason of their prescription in the Treaty of Rome; and these have the force of law in this country and must be applied by the courts. Secondly, we have to observe generalised rights in any event by reason of our adherence to the convention. The difference is that if this Bill becomes law, interpretation and adjudication will be a matter for British judges in British courts, instead of by the complex and cumbersome procedures of individual petition to the European Commission of Human Rights and thence, but only on the initiative of the commission, to a multinational court at Strasbourg. If jurisdiction is given to British courts as proposed in this Bill, the individual petition to Strasbourg will, I think, in time fall into desuetude. If not, individual petition is here to stay, as evidenced by the recent five-year renewal of the right by Her Majesty's Government.
Subject to further points that may arise in Committee, what I have said must in the interests of time suffice on these matters. Before concluding, however, may I briefly anticipate a thought that may be in the minds of some noble Lords? Is not the time and emphasis wrong, they may ask. At the present time should we not be concerned more with the enforcement of law than the enjoyment of rights? I take the point and I certainly subscribe to the importance of the enforcement of law and order, particularly in the climate of the present time. But there is no conflict; indeed, the reverse. The problems of rights and of law enforcement are not opposed; they are related and complementary.
Ten years ago in Luxemburg, on the threshold of the last quarter of the 20th century, I referred to the relationship between those two concepts at a time when I was chairman of what we called the Legal Affairs Committee of the European Parliament, which was our translation into English of its official title, President de la Commission Juridique. I must say that for a little while I had to ovecome a tendency to turn round to see who was being addressed or referred to under that sonorous and grandiloquent title.
At that time and in that town I used these words:I believe that the objective and analytical eye of history will identify two related problems in the last quarter of the twentieth century. They are, first, this problem of the rights of the citizen vis-à-vis the State, a problem necessarily aggravated by the increasing centralisation and bureaucracy, which contemporary economic and social practice seem increasingly to demand; and, secondly, the problem of the recognition of the duty and responsibility owed by the individual to society. These problems are related because the growth of State power and State activity provokes a resentment and a reaction which feed and foster revolts against authority and impatience with the restraints and obligations of the rule of law.The resulting manifestations",I concluded,are clear for all to see in the world today, including, alas, the countries of the Community. The ugly evidence is daily adduced in violence, aggression and in the invocation of force against the rule of law. Of course, the action which I am proposing in relation to the safeguarding of rights will not automatically solve the problem of irresponsibility and violence—and perhaps not even contribute directly to its solution. But, if I am right in my assessment of 161 history's diagnosis and these problems are related, then indirectly at any rate progress in the field of rights can contribute powerfully to a restoration of the sense of responsibility and the acceptance of the rule of law".Can it be said that those words are less topical or less true now than then, 10 years ago? Are they not reinforced by the events of the intervening decade? What I said in Luxembourg in 1975 I say here at Westminster today; and on that I rest my case. In that faith, in that hope and in that conviction I commend this Bill to your Lordships and request its second reading at your hands.
§ Moved, That the Bill be now read a second time.—(Lord Broxbourne.)
§ 6.39 p.m.
§ Lord Scarman
My Lords, today is the 10th December. I am sure that all your Lordships know that 10th December is the day appointed by the United Nations organisation for celebration as Human Rights Day. I have no doubt that those who are responsible for the business of this House arranged for the Second Reading of this Bill to take place on so auspicious a day; and I am hoping that your Lordships' House, after hearing the full and eloquent exposition of the Bill by its mover, the noble Lord, Lord Broxbourne, will with due quietness and dignity celebrate Human Rights Day by giving it a Second Reading.
I shall be brief. My position is well known. I think that I have contributed in some measure to every debate there has been during the past seven or eight years in this House in which the possibility of enacting the European Convention on Human Rights has been discussed. I suppose that I should also declare an interest. I am, as some of your Lordships may know, a judge. It will no doubt be said by some that, as a judge, I together with my colleagues on the Bench, should be getting too much power if the European convention should be enacted.
Perhaps I may say a word or two about that. If our judges are not to be trusted then they are not to be trusted with their present responsibility, which is the enforcement, application and development by judicial decision of the rule of law. That would be so whether or not the European Convention is enacted. If they are to be trusted—as I am sure the British public trusts them—then the European Convention on Human Rights once enacted will not add any new dimension to the responsibilities already daily undertaken by our judges in the field of judicial review of the exercise of executive powers by public authority. The argument based upon too much power to the courts can be immediately dismissed as one based not on reason but on a certain superficial distrust of the rule of law.
As I see it, the merit of this Bill can be expressed very shortly indeed. Its merit is that if enacted, under this Bill any individual person present within the jurisdiction of the United Kingdom will have immediate access—I emphasise the word "immediate"—within the United Kingdom to a British court if he claims that a public authority has violated a right guaranteed to him by the European convention.
The Bill, by providing the aggrieved citizen with a remedy in a national court, will at the same time ensure that the United Kingdom meets its 162 international obligations. There are in the European convention two articles neither of which finds place in the schedule to this Bill because they declare the international obligations of the United Kingdom. I shall refer to them briefly, because as soon as your Lordships see them you will appreciate that this Bill will be a valuable means of ensuring that the United Kingdom honours its international obligation. That international obligation arises of course from the signature to and ratification of the European convention.
The articles are these. Article 1 requires contracting states to ensure to everyone—again, notice that; it is not limited to citizens or to residents, but refers to everyone—within the jurisdiction the rights and freedoms defined in the convention. That is an obligation of the United Kingdom on international law.
Article 13 indicates a way in which the United Kingdom undertakes to honour that international obligation. Everyone whose rights and freedoms as set forth in the convention are violated shall have an effective remedy before a national authority. The European Court of Human Rights at Strasbourg has interpreted Article 13 as imposing an obligation upon contracting states—including of course the United Kingdom—to ensure that there is an effective remedy available to anyone who claims that his rights have been violated.
The first merit of the Bill upon which I wish to place the greatest emphasis this evening, is that incorporating the European convention into our law will ensure that our Government meet those two obligations. By ensuring compliance with those obligations it provides to the aggieved individual immediate access to a British court to remedy the infringement to protect him against the threatened infringement of a violation of a right defined by the convention.
Perhaps I may first of all say a word or two about why the incorporation of the convention into our law has merit. Again, I mention just two points briefly. First, there is great value to the individual in immediate access to a court. He may not have it now. He may have to wait until he can get to Strasbourg, where his case will be considered first by the European Commission and, at a later stage, if the European Commission publishes a report, by the European Court of Human Rights—a court, I would add, where the aggrieved citizen has himself no right to be heard. If he can be heard it is only by courtesy of the European Commission itself.
But that is not the point I am on at the moment, although it is of some importance. The point I am making is this. If one is so fortunate as to get a decision from the European Court of Human Rights in Strasbourg that process takes on average anything between four and six years. It will not surprise your Lordships to know that the first prisoner to test whether or not he had suffered a violation of a right guaranteed by the convention when he could not as a prisoner consult a solicitor eventually secured a declaration that his right had been infringed, some four years after he had been discharged from prison. No doubt that is a triumph morally but it is not very useful to the citizen after so much delay.
163 Think, my Lords, for a moment about the case in which it was ruled by the European Court that suspects detained in Northern Ireland had been subjected to treatment in the course of interrogation which contravened the European convention. That declaration of infringement came years after the event. But had those suspects had an immediate right of access to a British court—in their case it would have been the admirable courts of Northern Ireland—with access to their solicitor, which is also ensured to them under this convention, they could have got there at once. They might even have reached there in time to stop the continuation of this unlawful interrogation. I mention those two cases—one could mention others—to indicate the enormous value of immediate access to a court within the jurisdiction where you are.
The other value which I wish to stress tonight is the value of involving our national courts in the interpretation and application of the convention. At present, by merely a self-denying ordinance, our judges have no part in the interpretation or application of the convention. We are almost alone in that among the 20 signatories to the European convention. Fourteen of them—I think that is the number—have incorporated the European convention one way or another in their internal law. Another four have substantially reproduced it. Only two have not done so: one is Sweden, which has a written constitution; and the other is the United Kingdom, which has neither a written constitution nor the European convention within its law. How valuable it would be for the skills and legal wisdom of our judges to be involved in interpreting and applying this convention where it takes effect within their jurisdiction.
Of course the convention does not only define rights; it also sets out restrictions and limitations upon the exercise of those rights. Those restrictions and limitations would apply within the United Kingdom if the convention were enacted. It would be valuable not only to the United Kingdom but also, I suspect, to the European Convention on Human Rights in Strasbourg, if we could have the views of the British judiciary upon the application of those restrictions within the United Kingdom. None of that is now possible because we have isolated ourselves from the mainstream of human rights jurisprudence in Europe.
I have already taken longer than my allotted time. Therefore, I should like to conclude with these few words. Quite apart from the positive advantages to aggrieved citizens in incorporating this convention into our law, if it were to become law it would immediately acquire a power to influence and to educate. Politicians, civil servants, Ministers and others concerned with the preparation of legislation would take account not only in the arcane chambers of Whitehall where these things are drafted but also in debate in the two Houses and in the national debate which often accompanies legislation as it passes through these two Houses. They would be astute to ensure that important detailed legislation—such as, for example, the Police and Criminal Evidence Act, now on the statute book, and the Public Order Bill, now on its way to the statute book—complied with our international obligations under the European convention. All the time, the judges, who are now very 164 experienced in the field of judicial review of the exercise of executive powers by public authorities, would be developing, explaining and applying this convention in a British context. I sincerely hope that on Human Rights Day every man of you and every woman of you will do his and her duty.
§ 6.55 p.m.
§ Lord Banks
My Lords, I rise with considerable trepidation to speak on this important legal question in the presence of so many distinguished lawyers. However, when we are discussing a matter of such basic fundamental importance as individual rights, it is perhaps appropriate that the voice of the ignorant layman should be heard, particularly if it is heard briefly.
Many Bills have been brought forward from these Benches designed to protect the freedom of the individual, from the late Lord Reading's Rights of the Subject Bill 1947 and the late Lord Samuel's Liberties of the Subject Bill 1950, to the four occasions on which my noble friend Lord Wade attempted to do just what the Bill presented by the noble Lord, Lord Broxbourne, seeks to do—that is, to provide that the European Convention for the Protection of Human Rights and Fundamental Freedoms should be enforceable in British courts, thus making the convention part of our domestic law.
In those circumstances, it is not surprising that I should welcome the Bill most warmly on behalf of the Alliance parties and express our gratitude to the noble Lord, Lord Broxbourne, for introducing it and for explaining it to us tonight in the very clear way in which he has done so. Indeed, in their joint 1983 election manifesto, the Alliance parties pledged their support for just such a measure.
I should like also to express my appreciation of the defence of the Bill which has been presented to us tonight by the noble and learned Lord, Lord Scarman, and of the way in which he has argued over the years for what the Bill contains.
There has been growing support in this country for a written constitution with entrenched rights. The old assumption that a citizen is free to do as he likes provided he does not commit a specific breach of the law is no longer felt to be sufficient for the protection of individual rights. There are obvious reasons for that. One reason is that, with the increasing volume of legislation (which now includes EC legislation) it is becoming increasingly difficult for the individual to know what the law is. There is also the complexity of that law. The individual may not know what it means, even if he knows what it says. The individual is increasingly at the mercy of officialdom. A United Kingdom Bill of Rights—which in effect is what this Bill would introduce—would go a long way to strengthen the citizen's hand against Government and public authorities.
When in this House on 25th March 1976 we had one of the Second Reading debates on the Bill of my noble friend Lord Wade, the noble and learned Lord, Lord Denning, argued that British judges are already upholding individual freedom and individual liberties and it is not really necessary to refer to the convention. He gave at that time examples of particular rights which are mentioned in the convention and he 165 indicated how the judges were, in fact, upholding those rights.
We in this House of course pay very careful attention and respect to anything which the noble and learned Lord, Lord Denning, may say on these matters, because of his great expertise and experience. Yet, when one looks back over the experience which we have had of petition to Strasbourg since 1966—which was when it first became possible—I am bound to say that it seems to me that there have been many occasions when individual rights would not have been upheld had there been no reference to Strasbourg and to the convention. For example, resort to Strasbourg has been necessary to protect a free press against an over-broad concept of contempt of court; to uphold the rights of prisoners to correspond with the outside world and to have access to the courts; to protect workers against abuse in the operation of trade unions' closed shop arrangements; to obtain equality without discrimination for United Kingdom citizens of East African Asian origin denied entry to their country of citizenship; to extend judicial remedies to mental patients detained at the discretion of the executive—and many more examples could be given.
Why should British citizens have to go to the expense and delay to which the noble and learned Lord, Lord Scarman, referred of petition to Strasbourg? Why should they not be able to seek remedies in the British courts? It is argued against this that if they did in fact have the right to seek remedies in the British courts, this would give rise to a spate of litigation. There might conceivably initially, I suppose, be a trend in that direction, but I am quite sure that it would drop off quickly, and I am fortified by the thought that every other democratic country has either a Bill of Rights or a written constitution, or both, except I think New Zealand, where the present government are pledged to introduce a Bill of Rights and a draft is now being investigated by that country's Select Committee on Justice and Law Reform.
May I say in conclusion that I have considerable admiration for English law and, for that matter, considerable admiration for Scottish law, but even so I am bound to say that I think that the Lord Chancellor in the Gilbert and Sullivan opera "Iolanthe" goes too far when he claims:The law is the true embodiment of everything that is excellent; it has no kind of fault or flaw".To take a rather more critical view of the law is not necessarily to endorse Mr. Bumble's view of it. Another character in that same Gilbert and Sullivan opera declares:If there is an institution in Great Britain which is not susceptible of any improvement at all, it is the House of Peers".Well, that is a subject for debate on another day, but whatever may be true of your Lordships' House, I dare to believe that so far as the law is concerned it is susceptible of improvement, and that improvement is what the Bill introduced by the noble Lord, Lord Broxboume, would provide.
§ 7.3 p.m.
The Lord Bishop of Oxford
My Lords, my support for this Bill starts from the belief that among the ordinary people of this country there is quite a wide- 166 spread fear that what are called in the Bill "human rights and fundamental freedoms" are gradually being eroded. This fear may be thought irrational and yet I find it entirely natural, for we live in a century when not only have there been wars and tyrannies on a terrifying scale but when the complexity of administrative power has come more and more to dominate the daily life of the citizen.
It has become increasingly difficult for him to know where to turn for redress, or indeed to know where he stands. Less sure himself in many cases about right and wrong than he used to be, he sees this uncertainty reflected in a society of plural values. Although recourse to the law is, I suppose, more frequent than ever, he often fears that such recourse may be both expensive and slow, and may not in the end express those rather simple principles of morality to which he still feels himself attached.
Fortunately, this threatening process of erosion has not had it all its own way. From time to time there has been a counter-attack, and one of the most effective was the European Convention on Human Rights of 1950, born of the experiences of the war, and ratified first of all by this country which had played such a large part in framing it.
The language of the convention is simple; so simple that it can give occasion to some expert critics to say that is all too vague. But surely its simplicity is precisely the point. Here is language about human rights and freedoms that the ordinary person can be expected to understand, and which has proved itself able to cross a great many national frontiers and to find a response. That indeed is what has happened, as your Lordships are aware, both in democratic Europe and in the Commonwealth.
Who would have dared to prophesy in 1950 that British citizens would have thought of taking their grievances to a court in Strasbourg? Some of them would hardly have known whether Strasbourg was in Germany or in France, but yet today no state sends more individual petitions to the European court at Strasbourg than does the United Kingdom. Surely that is something of which the British Parliament and the British legal profession need to take serious note. This is why this Bill deserves to succeed where a number of earlier attempts to incorporate the convention into our law have failed.
I have the honour to be president of a modest ecumenical body called Christians for Europe, one of the organisations which supports a Bill of Rights. It is on both these counts that I wanted to take part in this debate. First, as a Christian, it may be argued that "human rights" is not a phrase natural to Christianity, which speaks rather of duties and of laying aside selfish claims, and says that it is God's service which is perfect freedom. There is certainly more to human life and character than is to be found in the articles of this, or any other, convention.
Yet I would argue that a great deal which is in those articles derives from biblical teaching which has been common to the whole of Christendom and of course to Judaism as well. It springs from the belief that each person is of intrinsic value and dignity and deserves to be treated with the respect due to a child of God, so that no authority, whether of a dictator or of a 167 bureaucracy, has the absolute right to treat that person as of little or no account.
It may be thought that traditionally in British society, as one branch of Christian civilisation, so to speak, such a principle was self-evident, but I believe that it would be either a very brave or a very complacent person who would claim that it is self-evident in our secularised society of today. I think that in modern terms we need a Bill of Rights not just as an adjunct to the law but also as some kind of protection against sin.
Then I should like to support the Bill as someone who values the European Community in a fairly wide sense of those words. I believe that the other democratic countries of Europe must find it rather strange that the United Kingdom, which was a pioneer in establishing the convention, should have taken so long to domesticate it on its own shores. They must surely wonder whether this is another manifestation of what they sometimes regard as our isolationism, and whether this is due to some false sense of superiority about the perfection of our own arrangements.
I say "false" because when they look at the number of petitions which have come from this country to the court at Strasbourg, and the number of judgments given in favour of the petitioners, they could hardly believe that any claim to perfection on our part was true. The noble Lord, Lord Banks, has said all that is required on that subject.
It does not do much for the reputation of the United Kingdom if we are apparently unwilling to adopt quite explicitly for our own courts the principles to which we subscribed over 30 years ago and to be prepared to deal ourselves with any infringements of those same principles. We are, after all, supposed to have been the inventors of the idea of fair play, and fair play is something that is very much in need of defence in the world of today.
I hope I shall not be accused of some godless philosophy—bishops have to be rather careful nowadays—if I say that it is especially to the humble, powerless, and disadvantaged members of our nation that a Bill of Rights seems to be of value. In the past 10 years or so the European court has come to the assistance of the mentally handicapped, immigrants, and prisoners—to mention just three of the categories I have so described. But not every such person is likely to find the court in Strasbourg easy of access or to be represented with enough skill and perseverance to gain a hearing and to obtain redress. Surely the right place for them to look for these things is in the courts of their own country and to look for them on the basis of a charter of rights and freedoms which they themselves can understand and which they know to be honoured by their own representatives in Parliament. To enable this to happen is in one way quite simple in terms of this Bill, yet in another respect it seems to me a big and important step for British justice to take. I very much hope that the passing of this Bill will enable us to take it.
§ 7.10 p.m.
§ Lord Campbell of Alloway
My Lords, the ultimate purpose of this Bill is to provide a remedy in our courts where the domestic law conflicts with the 168 convention—the immediate access of which the noble and learned Lord, Lord Scarman, spoke. This immediate access may be achieved otherwise than by the machinery of incorporation enshrined in Clause 2, as indeed the noble and learned Lord would no doubt recognise. If the Bill is read a second time, amendments to Clauses 2 and 3 will be tabled to ensure that the convention and all relevant jurisprudence shall be taken into account on judicial revue, as mentioned but not advocated by the noble and learned Lord—but only on judicial revue and in the appropriate appellate processes therefrom; to enlarge the system of judicial revue; to afford reparation within the meaning of Article 50 of the convention; to carry in Clause 4 of the Bill as an aid to construction of the statutes, but only in this context and so remove from Clause 4 as it now stands the taint of unacceptable entrenchment; and to provide amendments to the rules of the Supreme Court to give effect to this concept and to bring the Act into effect only when those rules and those amendments to the existing rules shall have received affirmative approval in both Houses of Parliament.
The article in today's Times, on page 10, fails to recognise that without some such amendment as I have mentioned the Bill as it stands would create constitutional problems by affording to the judiciary instead of the legislature the facility to formulate legislation quite beyond the customary remit. I assure your Lordships that in this there is no question of any mistrust of the judges—none whatever. That is a red herring, a side point; there is nothing in it at all. Furthermore, not only that—the constitutional aspect—but it would induce delay, confusion, want of predictability in the law so as to render it unworkable and even perhaps reduce the administration of justice in our courts and tribunals throughout the land to a grinding halt.
With some such amendment as is proposed (which would meet the plea for immediate access of the noble and learned Lord and the concern of the right reverend Prelate the Bishop of Oxford) a remedy in our courts could be provided as envisaged by Article 50 of the convention and also within the remit of Article 13, mentioned by the noble and learned Lord. Furthermore the conflict between our own law and the convention would be reduced to an acceptable degree. Furthermore the course of these adverse rulings at Strasbourg, adverted to by the right reverend Prelate, where in 12 out of 14 cases since 1975 Her Majesty's Government were defeated by the decision of the court, would be altered. Also if amendments along the lines proposed were accepted, the obligations under Article 53 of the treaty, which oblige Her Majesty's Government to carry in a series of piece-meal amendments to square our own law with the decisions of the European Court of Human Rights, would be reduced to reasonable proportions.
There is another aspect, too, which was adverted to by the noble and learned Lord, Lord Scarman. The decisions of our own courts, right up to the Appellate Committee of your Lordships' House in the case of Fernandez, which was the ultimate decision, would be overuled. Those decisions preclude our courts from having any regard whatever to the provisions of the convention and to the relevant jurisprudence.
169 In Fernandez I was an advocate. The noble and learned Lord was sitting as a Law Lord. I tell your Lordships this because it is relevant to the debate. I had a hopeless case, because all I had to say was, "Reverse the Court of Appeal because their decision goes in the teeth of the European convention". The court, not unnaturally, was very hostile and said, "You know perfectly well you do not have a case and you know perfectly well that we shall not entertain this appeal". But I went on and I went on and eventually the noble and learned Lord said, very quietly, "He may not have a case in law, but he has a case in humanity". As a result of that curiously enough I lost the appeal, but my client remains in this country today. So there is a human side to all this academic argument.
I am grateful, and so would a lot of other people be, to the noble and learned Lord for his most courageous intervention. But if these amendments were accepted to relate this only to judicial review, we would provide an adequate means of immediate access. We should also eradicate largely, not wholly, the source of contention and conflict, and we should honour the spirit of obligations willingly undertaken since 1966 when Her Majesty's Government accepted the right of individual petition and also the jurisdiction of the court.
The present position, as my little anecdote alone would suffice to show, cannot be described as satisfactory or truly acceptable. But the case for incorporation as enshrined in Clause 2 of this Bill as it stands was considered by the Select Committee of your Lordships' House set up to consider Lord Wade's Bill. In this the committee found unanimously that there was no way—I quote from paragraph 43—in which the convention and its jurisprudence could be made binding in our courts".Yet this is the very thing that this Bill seeks to do, and this I oppose, hook, line and sinker. So the crucial principle of the Bill I cannot accept, and it was not accepted by the Select Committee of your Lordships' House.
The argument on this issue of incorporation is in no way advanced by considerations of some new constitutional settlement in the form of a Bill of Rights as advocated by (I have forgotten its name, but I think it is the Constitutional Reform Society, of which the noble and learned Lord is president) the society mentioned by the right reverend Prelate. This question of incorporation is not advanced by considerations of entrenchment; by derogation from the sovereignty of Parliament, which stands, and must stand, as the central feature of our constitution, and which was expressly mentioned by your Lordships' Select Committee on the Bill of the noble Lord, Lord Wade, that the problem of entrenchment was insoluble: in other words, one should not seek to entrench.
Although the noble and learned Lord, Lord Scarman, has said (though not today) that the legislature should look at this concept of a new Bill of Rights as a canon of just legislation, perhaps it may be said that, if the Bill were enacted as it stands, the discharge of such a "cannon" could slight the security of the castle of common law precedent and, indeed, pepper the construction of legislation with the grapeshot of uncertainty.
170 The only viable approach to this is the approach of other countries, in which a remedy is provided in the form of an adminstrative court, where it is accepted that occasional conflict will be inevitable. If our treaty obligations demand no less, assuredly they demand no more. This principle of incorporation, as enshrined in Clause 2, is not accepted by any other signatory state. Wholesale incorporation as envisaged by Clause 2 is unworkable in practice in any legal system, irrespective of whether it is a Napoleonic Code system or a common law system. The loosely drafted provisions of this convention as interpreted by the relevant jurisprudence are not so easily assimilated or grafted on to any municipal law, least of all our own.
The Select Committee in this regard concluded—and it is right that your Lordships should advert to this—that the convention did not require wholesale incorporation as proposed by this Bill, but that our courts should have regard to the convention and the jurisprudence at Strasbourg, and that any Bill should make express provision as to remedies. Such is the only practical resolution of the problem of providing a remedy in our courts, and to provide this by the enlargement of judicial review. This in effect means the setting up of a kind of administrative court which is obliged to take the convention and the jurisprudence into account, and which, in the course of time, will establish its own body of precedent. It would not be practicable to accord to the convention and its jurisprudence the force of law in all courts and tribunals throughout the United Kingdom as proposed by Clause 2.
In conclusion, my support for a Second Reading is therefore obviously qualified by my inability to support the principle of the Bill as it stands. This, I stress, implies no mistrust of our judges. In my view, in the form of amendment which I shall table, the judges should be given a role, shall be given a role, but never the role proposed by this Bill.
§ 7.25 p.m.
§ Lord Denning
My Lords, it has been my lot over the years to consider this proposal many times. I have been present at many of the debates on it in this House; I have written upon it; and I have heard cases in the courts in which people have raised this convention on human rights. I am afraid I do not think these clauses ought to be incorporated into our law, as part of our law. They are framed in the words of a treaty, vague and indefinite; and if they are brought before the courts of law those courts and, I am afraid, the European Court of Strasbourg, decide not by the words, as we do in our courts, but by the policy which they think underlies them.
This was strikingly illustrated when we had our debate about corporal punishment in schools. The court at Strasbourg decided, I think quite wrongly, on the words of a protocol, that it could only be done with the consent of the parents. Our English judge, Sir Vincent Evans, dissented, and I think quite rightly. They went on the policy that they thought the rule ought to be the same throughout Europe. When the matter came before your Lordships sitting legislatively, when the Government tried to put that 171 decision into operation, I am glad to say your Lordships rejected it because the ultimate word on the law of England is Parliament, and not the European Court at Strasbourg.
Perhaps I may say this at once. When I read Clause 4 of this Bill, it offends all our constitutional principles. What it says is that any statute already made by both Houses can be examined by the courts of law, and the courts of law can say that that statute is invalid because it offends against the constitution. That is in regard to past Acts. In regard to future Acts, it says, again, that anyone can ask for a declaration in the courts of law to say that the Acts of this Parliament are invalid because they offend against the European Convention.
This is such a fundamental principle of our constitution that I remind your Lordships of what Lord Reid said in the latest case of Pickin v. British Railways Board reported in 1974 Appeal cases at page 782:The idea that a court is entitled to disregard a provision of an Act of Parliament on any gound must seem strange and startling to anyone with any knowledge of the history and law of our constitition".Then it goes on to say:In earlier times many learned writers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or to the law of nature or to natural justice, but since the supremacy of Parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete".I will not allow any contention here that that clause should ever appear in any statute, because it is really subordinating our Acts of Parliament to a determination by the courts on the ground that it is said that they are contrary to the conventions. So on that simple ground I oppose any interference with our constitution by directing the courts in that way. That is a fundamental constitutional point.
Let me get on to the details, if I may. This convention is not drafted in the form of our ordinary statutes which we understand; it is drafted in the form of a treaty which the Continentals may understand, and the like. Just think of the troubles! I may say that when I have sat in the Court of Appeal, time after time counsel have said, "Well, look at the convention". And we have looked at it and we have said repeatedly—I do not know about that case of Fernandez; I am speaking about the Court of Appeal—that we will look at the convention, we will look at the principles in it and we will apply them so far as they are consistent with our law and with what we think is right and just.
We do look at them and we apply them so far as they are right and reasonable. Let me give your Lordships some illustrations of how it has arisen. A schoolteacher under the London Education Authority was a Moslem. He said, "I have got under the convention a freedom to manifest my religion as I think best. I want to have Fridays off to go to the mosque. It takes me an hour to get there and it takes me an hour to get back; but I want to have those Fridays off or Friday from midday off and not do my teaching". He claimed that before us. We did not have it. But if this Bill becomes enacted then that teacher could sue the local authority without anyone's 172 permission and make it actionable. "Oh," he would say, "You stopped me going to the mosque on that Friday". We could not have that.
Then we had the other case of a man who had come in in a little boat, without any authority, as people did, across the sea. He came into England without any authority. He was a man of 26. Naturally in due course a deportation order was made against him. He said, "I want to marry this young girl of 16; and under the convention the marriage is allowed. Men and women now have the right to marry". He said, "I have the right to marry under the convention". We did not allow that. He had to be deported. He was not going to marry a girl of 16.
If I may I will take a simple, modern illustration—the question of caning in schools. Some of our public schools have this punishment. I think that some have it and some do not. If a boy has behaved monstrously, injuring others or stealing and the like, some schools still think that caning is not a bad thing. They will have to be careful if this convention is part of our law. This schoolboy or his parents will say, "You have offended against the convention and it is actionable. This is inhuman or degrading punishment". That is what they have indicated before.
I give those illustrations to show your Lordships the effect of this Clause 4 (or whatever it is)—the clause that gives everyone in the country a right of action in the courts for anything which they allege to be an infringement of the convention. Just think—and I have given you some illustrations—of the myriad of cases that will come. There will be people—and I have had them—like the man we decided against in court. He said, "I'm off to the European Court". We said good luck to him. It is a very difficult matter for him to get there. He cannot get there so easily as this Bill would let him get to our courts. He has first to go to the Commission, which I believe is at Brussels, and there has to be an investigation and inquiry by them. They have to see whether or not the case is admissible. They turn down a great number of cases. If they think a case is admissible, it can go before the European Court at Strasbourg.
Then, at Strasbourg, it is not the person concerned who has any right to bring the case. The only people who can refer to that court are the Commission themselves or one of the high contracting parties. So the person has an awfully difficult journey before he gets to that European Court at Strasbourg. On the other hand, if this Bill becomes an Act, anyone, without any leave or anything of that kind, can start an action in our courts. They can say that it is actionable and that any breach of that duty is actionable in the United Kingdom.
As I say, my objection is fundamental. It is that you are going to have a myriad of cases by a lot of crackpots, and they will have to be turned out sooner or later. My noble friend Lord Campbell of Alloway foresaw that and he saw a lot of trouble coming on. He would not have that clause as it stands at the moment. I would not have Clause 4. As I say, it offends against the constitution as I see it.
Then it is said that under Clause 6 judicial notice has got to be taken of all decisions at the European 173 Court. I do not want to be too critical of that court; but in quite a number of cases the British judge has dissented. Sir Gerald Fitzmaurice did so in several cases and Sir Vincent Evans did so in several cases. This is because they were interpreting the convention according to our English system; whereas those in Europe interpret treaties and suchlike differently from how we interpret them. Naturally enough, our British judges dissent. I do not want to criticise them but I must say that, viewing it at this distance, there is a good deal to be said for thinking that they have been wrong from time to time.
I know that the Sunday Times is terribly pleased with the case it took up there. But, mark you, it was only by eleven to nine—eleven to nine reversed the full House of Lords declaring our common law. And it was a very good common law, they stated. My Lords, is that right? I do not want to go on to the three railwaymen who went there about the trade unions. But at Strasbourg they declared that our legislation—and I know it was by a Labour Government, but perhaps that does not matter—with regard to trade unions and so forth was contrary to the convention and that it had to be reversed.
I do not like a court which overrules the decisions of the House of Lords, which overrules the legislation of your Lordships and of both Houses in this way. Yet as I read this, together with some of the articles, our courts would be bound by decisions of that European Court. It may be, as I have said, that many of us (and certainly I) disagree with quite a number of them. Yet we would be bound by them. There have been enough reasons, and I have set out my reasons from time to time. But the real truth is that this convention is not suitably phrased or suitably set out to be part of law or to set down legal principles to be interpreted in our courts. We can take them into account, as I have said, and apply them so far as we reasonably can. But do not make them part of an Act of Parliament. Therefore, I am against this Bill.
§ 7.40 p.m.
§ Lord Allen of Abbeydale
My Lords, in the expectation that we might have proposals of this kind during the current Session, I ventured to make some observations on this topic in the debate on the Address on 12th November at col. 195. I do not flatter myself that what I said has been widely read and digested but there it is on the record and I do not propose to repeat tonight what I said then.
However, there are one or two points which I should like to make this evening. Let me begin by saying that there are at any rate four issues on which I can readily agree with the noble Lord, Lord Broxbourne. First, it seems to me clearly right that if we are going to legislate at all we should go for incorporating the European Convention. It is not a perfect document: its drafting is somewhat inelegant notwithstanding its provenance, and it does not deal with economic, social or cultural rights. But it is a convention to which we are a party, and to construct yet another code alongside it simply would not make sense. I recognise that in so far as the convention raises uncertainty about its impact on our existing law, that uncertainty exists to some extent already as regards cases going to 174 Strasbourg. That is a point which I should like to come back to in a moment.
Thirdly, I accept that if we do not embody the convention in our law we are only too likely to have the further embarrassment of having findings against us at Strasbourg which might have been avoided —though not necessarily so—if our courts were made the courts of first instance. Fourthly, I agree that in a number of cases where the decision has gone against us, this has been rightly so and gaps haw been disclosed in our provision for protecting human rights which we did not think existed when we signed the convention. But there are weighty arguments the other way which cannot just be swept aside as being misconceptions.
As I see it, the role of the Strasbourg court is essentially different from that which would fall to our judges under this Bill. What the Strasbourg court says, if it finds against us, is that we have not acted in accordance with the convention and we had better go away and think how to put things right. And in the course of time this is what we do, if necessary by new legislation. We do not always do it very well and we can take a very long time; but no matter. The essential feature is that it is Parliament that in the end decides, either by changing the law or by approving other actions such as a statutory instrument, falling short of legislation.
However, under this Bill it would fall to the judges there and then to say in a particular case what the relevant article meant in our law, since that article would override anything previously on the statute book, so that it would be for the courts and not the legislature to say just what was meant in our law by the rights to life, to freedom of thought, to freedom of expression and all the rest.
It seems to me that a number of consequences flow from this. For one thing, if these articles were part of our domestic law the element of uncertainty over a wide field would be rather different from that which exists at present. The relevant articles and the exceptions they provide for, as we have heard and as can be seen by looking at the Bill, are in the most general terms, quite contrary to our own traditions of legislating in a detailed and specific way. And it would be a very long time before anyone knew, on the accident of the cases coming before the courts, just what changes these sweeping generalisations had made to the previous statutes.
Moreover, I cannot see how the judges, in coming to these decisions, could avoid applying criteria which on any ordinary basis would be regarded as political. The United States Supreme Court is sometimes cited as an example of what could be achieved. One could say a great deal about the operation of that distinguished body—including the fact that it operates against a background of a written constitution—but there is one point that stands out, which is that that court is called upon from time to time to determine issues which here (hitherto at any rate) have been regarded as proper to the legislature.
It has been an inevitable consequence of that fact that appointments to the court have a political flavour. I think there would be universal agreement that that is not something we would wish to see applying to 175 judicial appointments here. I must say that I doubt whether all members of the judiciary would go along with my noble and learned friend Lord Scarman, or that all members of the Bar would go along with the views expressed in an article today in The Times by the Chairman of the Bar. It would not be right for me to quote from private conversations, but the views of the late Lord Diplock, for whom I had the highest possible personal regard, are on record. When we were debating an earlier Bill to incorporate the European Convention on the 29th November, 1978, at col. 1364, after recalling that he had some experience in the Judicial Committee of the Privy Council of dealing with appeals from countries with an entrenched Bill of Rights, he went on to say that the risk of bringing judges more and more into politics was the deciding factor in leading him to oppose the Bill then before the House.
I am afraid that it just will not do to dismiss these objections as being misconceptions or as superficial views based on distrust of the rule of law. I think we are in a very real dilemma with a choice between the two courses—embodying the convention or going on as we are—both of which, it seems to me, are open to very serious objections. My own choice is still for the second course, notwithstanding all the problems.
Before I conclude, let me raise a few points on the Bill itself. I notice that it does not embody the whole of the convention, although, as I recall, the Select Committee thought unanimously that provisions in the convention which did not confer rights as such might have a bearing on the true construction of those that did, and concluded that the whole convention should be included. Nor does it seem to me that Clause 6 of the present Bill is apt to fill this gap. I noticed with some interest, incidentally, that among the articles not reproduced in the Bill is Article 16, which reads:Nothing in Articles 10, 11 and 14(all of which are in the Bill)should be regarded as preventing the high contracting parties from imposing restrictions on the political activity of aliens.".I suppose that that was not a fundamental right which appealed to Jefferson, or indeed to the noble Lord who introduced the Bill.
I also notice that the scope of the Bill is limited to public authorities, although I believe the definition of them is defective. But the convention is not itself in terms so limited and it might possibly in the end be found applicable to private bodies. I believe the argument about that is still going on.
There are one or two other points of detail of considerably less importance than the weighty points raised by the noble Lord, Lord Campbell of Alloway, in his rather muted welcome to this Bill. But there is one other matter which he touched on, and which my noble and learned friend Lord Denning touched on, which is far from being one of detail; that is, the provision in Clause 4(2) which is aimed at some form of entrenchment. I think the noble Lord, Lord Broxbourne, explained that the effect of this provision would be that the Bill would apply to any future Act unless there was a specific provision in that Act overruling this clause. No Government in the future would put a provision in a future Bill specifically overriding a statute which gives effect to our 176 international obligations, so that the plain effect of Clause 4(2) is that it would bite on all future Acts of Parliament. It is my belief, as has already been said, that this is totally inconsistent with all accepted views of the sovereignty of Parliament, for the reasons given in the authoritative legal memorandum which the Select Committee received and which it discussed in its report.
I was very surprised that the noble Lord, Lord Broxbourne, indicated that Section 2(4) of the European Communities Act of 1972 provided something of a precedent. That is a point disposed of in the Select Committee's report. I am sure that he has a copy of the memorandum since that is the first document in our minutes of evidence, the last being the transcript of the extremely interesting exchanges that we had with our last witness, my noble and learned friend Lord Scarman. I think that Clause 4(2) in its present form simply will not do.
I am sorry this evening to be differing from the noble Lord, Lord Broxbourne, when we spoke with such amity together only last week in the debate about the mentally disabled, but there it is. I am afraid that I cannot match his eloquence, or that of the other noble Lords and the right reverend Prelate who have spoken in favour of the Bill, but I fear that I remain a disbeliever.
§ 7.52 p.m.
§ Lord Hylton
My Lords, I rise as a layman and very much a beginner in these complex matters. I shall try to be brief and I hope non-controversial. I should like to thank the noble Lord, Lord Broxbourne, for introducing this Bill tonight. Experience has, I think, shown that the European Convention on Human Rights provides better safeguards and remedies than some of the traditional British procedures in which we used to take justifiable pride. This is, I think, not surprising when we consider that we helped to draft the convention and were, I believe, the first country to ratify it in 1952.
Examples have already been given this evening of the advantages that have accrued to British citizens as a result of the convention, and I shall not go over them again. The noble and learned Lord, Lord Scarman, explained, I thought very clearly, the advantages of the Bill in providing immediate access to British courts and in avoiding the delays which have up till now been so extremely long in the Strasbourg procedure. Therefore, I submit that the Bill is of great importance in this country—that is, Great Britain—but I believe that it is of even greater importance in Northern Ireland, and that is the main reason why I speak tonight.
It is, I think, fairly well known that the Northern Irish political parties are in disagreement on a very great number of issues. Almost the only area in which they find themselves in agreement is on the desirability of a Bill of Rights, and the Bill that we are considering tonight gives the possibility of a Bill of Rights applying to Northern Ireland. I have reason to know this since 1980 when I was present at a conference in Somerset with members of most of the Northern Irish political parties, and, indeed, with some former paramilitaries who had already by then begun to take the political road. I believe that this Bill will be very much 177 welcomed in Northern Ireland, and welcomed precisely because Northern Ireland is at present such a divided society.
It is in the context of Northern Ireland that I trust that "judicial notice" will be taken of the International Covenant on Civil and Political Rights of 1966 and, in particular, of Article 27 of that covenant. The article I mention is very much parallel to Article 14 of the European Convention on Human Rights and I should just like to quote briefly what Article 27 states. It states:In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess their own religion or to use their own language".In 1977 Mr. Capotorti, in his report to the United Nations sub-commission on the prevention of discrimination and the protection of minorities, which was adopted and printed by the UN in 1979, pointed out that collective interests were grounded in personal rights, to be enjoyed in common by whole groups. Mr. Capotorti recommended in page 103 of his report,that bilateral agreements dealing with minority rights be concluded between states where minorities live, and states from which they originate (especially between neighbouring states).It must be stressed, however, that co-operation with regard to the rights of members of minority groups should be based on mutual respect for the principles of the sovereignty and territorial integrity of the states concerned and non-interference in their internal affairs".What a prophetic description that was of the recent Anglo-Irish agreement! I trust that Unionists, in particular, of all shades will study those two sentences that I have just quoted from Mr. Capotorti and I believe that if they do, their understandable fears will be very considerably allayed.
I am delighted, from the point of view of the whole of the United Kingdom, to support the second reading of this Bill. In doing so, I find myself in good company with members of all parties and of none, and in agreement with the Roman Catholic Bishops' Conference of England and Wales and with the lay members of the Catholic Union.
§ 7.58 p.m.
§ Lord Lloyd of Hampstead
My Lords, since 1970 your Lordships have, I think, had five bites at this particular cherry, beginning with the rather differently constituted Bill in favour of a Bill of Rights which was moved in 1970 by the then Lord Arran, taking into account, of course, the Select Committee which we had in. I think, 1976 which was presided over so admirably by my noble friend Lord Allen of Abbeydale and of which I had the honour to be a member.
But this has been a somewhat curious history because, in an odd sort of way, the controversy seems to have been confined almost entirely to your Lordships' House. The House of Commons, which is, after all, the democratically elected Chamber, appears to have taken no real interest in this matter. There has been no attempt to pick up any of the Bills which have been passed through your Lordships' hands and, indeed, there has not been the slightest trace of a popular clamour in favour of a measure of this kind, 178 though I must confess that in the last few days there have been signs of what one might call a mini-campaign on the part of certain individuals in the press, no doubt in anticipation of your Lordships' consideration of this Bill. But one cannot help wondering whether, in the light of this history of the matter, it is altogether sensible to press it further in your Lordships' House rather than waiting until such time as the democratically elected Chamber feels moved to become seized of it.
In a superficial way, the supporters of a Bill of this kind have a relatively easy task because, after all, they are seeking to strengthen human rights, they are proposing to put a nice little ready-made code into our law: and why should there be any objection to that? "It is done now in Strasbourg. Why can't we do it in the Strand?", as one member of the Select Committee sought to put the matter rather neatly. But one can have worthy aims while the means to be deployed can nevertheless be open to doubt.
Before I address myself to the main argument I should like to try to dispose if I can of two points which are often ventilated in this matter. First, there is the question of whether we fall short in the matter of human rights as against other countries. The answer to this surely is that, so far as human rights go, we are far better protected under our existing law than almost any other country of the world. The whole history of this country has been geared to human rights—Magna Carta, habeas corpus, trial by jury and so on. If one takes one modern example of how much better human rights are protected in this country, one has only to consider the enormous peril of trial by the media which occurs in all these other Continental countries, as well as in America, which enjoy the benefits of a so-called Bill of Rights. The newspapers are able to conduct a preliminary trial of somebody who is accused of a particularly disagreeable murder long before he has the opportunity to get into court. A fair trial is thereby prevented.
Under our system no such procedure can be adopted. Again one must remember that the European Convention establishes only minimum standards as a kind of long-stop to make sure that signatories do not fall below those minimum standards. In many respects our standards go far higher than the European Convention. Let us take for example the question of foreign immigrants. A great deal of play is made of the recent case about the right of a wife to bring in a foreign husband when she is herself an immigrant. Under our law immigrants enjoy vastly better rights than they do in other countries signatories which are to this convention. A child born in the United Kingdom to foreign parents becomes instantly and automatically a British citizen. No such provision will be found either in the Bill of Rights or in any of the Continental countries which deploy such documents.
The second point I shall try to dispose of is whether our track record in the Strasbourg court is worse than that of other countries. Here great play is made with the fact that since 1968 some 12 cases have been found against us. But when one compares this with other countries, countries much smaller than our own, one finds that nine cases have succeeded against the Belgians, six in the case of the Netherlands and five in 179 the case of Austria. France has accepted the right of individual petition only since 1982.
Perhaps I may now come to the main thrust of the argument. What is said in favour of incorporating a Bill of Rights is that our judges are prevented from dealing with the matters which arise under the convention, that the proper forum for such matters is in our own courts and that if they could deal directly this would save a great deal of time, trouble and expense. On the face of it that sounds a powerful argument. I do not suggest for a moment that there is not some force in the argument, but what one must not overlook is that there are two very strong arguments against such an introduction of the European Convention. In the first place it would effect a constitutional change of the first importance, as my noble and learned friend Lord Denning has already pointed out so eloquently. It would totally transform the role of the judiciary and can fairly be described as a judges' charter, for, under the guise of these very broad and generally expressed rights such as the right of association, the right to freedom of speech, the rights to life, peaceful enjoyment of possessions, privacy and so on, the judges would find themselves under the necessity of striking down existing law and introducing new swathes of judicial legislation.
Let us take for example the case of privacy. As I understand it, the noble and learned Lord, Lord Scarman, argues in the first instance that incorporation into our law will not really effect any radical change, but at the same time it will enable the judges to develop their own law of privacy as part of English law. This, I would venture to suggest, is pre-eminently a job for Parliament, and not for the judges. We had in 1972 the Younger Report which exhaustively examined the whole question of privacy. It came to the conclusion that it would not be to our advantage to introduce a general law of privacy, but the report made suggestions for amendments some of which have in fact since been implemented. I would remind your Lordships that in the much cited Malone case, where Vice-Chancellor Megarry decided that telephone tapping could not be treated as a wrong under English law, he in no way suggested that it would be desirable for the judges to have the power to develop the law of privacy. In fact his words were that,any regulation of so complex a matter as telephone tapping is essentially a matter for Parliament and not for the courts".It is not our way or in accordance with our traditions to create freedoms by these broad general propositions. What our tradition has been is to have firm remedies rather than vague and resounding general rights. This is based on the fundamental proposition that we have a liberty in this country to do anything which is not specifically prohibited. It is on this basis that our fundamental freedoms are established. Without in any way depreciating our judiciary, who unquestionably enjoy an unparalleled reputation for their skill, legal learning and integrity, when one says that the judges under our system have neither the training nor the capacity to decide broad issues of policy, this does not, as the noble and learned Lord, Lord Scarman, said, indicate a lack of trust in the judges; it is a recognition that if we gave them this task we should be seeking to impose an unsuitable role 180 upon them. It is a role, I venture to suggest, that comparatively few judges in this country would be happy to assume.
I remind your Lordships of the wise words of a very distinguished judge, Lord Devlin, who wrote in this context that,If the judges were men endowed for such a task"—that is, for deciding broad issues of policy—they would not truly be judges".Moreover, if one considers that rights such as the right to privacy are to be developed by judges, it will mean that they will be developed in the course of litigation. Litigation, by its very nature, is random, and it is instant in its character. It is surely a most unsuitable way to develop, for instance, a law of privacy—by instant legislation of that kind.
Our method, which I believe is a far better one, is that if it becomes apparent that there is a serious gap in our law—and we are all aware that there are indeed many gaps—the proper course is to have the Law Commission or some equivalent body examine the issue, prepare a report, and then for Parliament to consider it and decide as a matter of policy whether the law should be developed or changed.
Then again there is the very considerable danger of politicising the judiciary. The experience of the United States is all too significant in that respect. A very distinguished American lawyer recently wrote that almost to a man American judges are creatures of politics. That is surely the last thing to which we would wish to expose our independent judiciary—the danger of judges being engaged in decisions that would be regarded as political.
Part of that political function is that to which this Bill points only too clearly, especially in view of the way in which Clause 4 is drafted—and I shall not spend any further time on that matter because it has been effectively dealt with by other noble Lords. I will quote the noble and learned Lord, Lord Denning, in a previous contribution to one of these debates in your Lordships' House. He expressed this sentiment:If judges were given power to overthrow sections or Acts of Parliament they would become political … and the reputation of our Judiciary would suffer accordingly".—[Official Report, 25/3/76: col. 797.]So far as I was able to judge, the noble and learned Lord has once again expressed that same sentiment with his characteristic robustness.
The fact that the real intention of a Bill of Rights of this kind is to affect parliamentary power is sufficiently testified by the phrase of the noble and learned Lord, Lord Scarman, which admittedly he has not repeated in this debate, but to which, so far as I am aware, he still adheres, that:There is a need to curb the over-weening power of Parliament.It may well be that Parliament's power does need curbing. I make no comment on that matter. But if one is to do that, surely the proper course is to have a new written constitution with checks and balances of a political character whereby Parliament can be controlled. But to do so through the back door by means of the judiciary would be a dangerous innovation.
Then the question is asked: why be so worried about the judges affecting the role of Parliament? After all, 181 that is what is already done in Strasbourg. The answer was given with devastating clarity by my noble friend Lord Allen of Abbeydale when he pointed out that such an argument misses a fundamental distinction. In Strasbourg they do not declare, and have no power to declare, what is English law. All they say is, "There has been a violation of the treaty. Go away and do what you think is appropriate to toe the line". We then go away and consider as a matter of policy, through the Government and Parliament, how the point can be met.
In so doing options arise. We have seen that happen in the case of immigrant wives and their foreign husbands and in the case of corporal punishment; Parliament debates the policy. Do we really want to impose upon our judges, in the course of random litigation, the task of deciding that English law, in the light of incorporation of the European convention on the question of corporal punishment, is such and such; that such should be the law; and that it should be binding on us all? That is surely not a proper task to be given to our judiciary.
I mention that there are two fundamental answers to the problem. I do not propose to describe the second of them in any detail because I am aware that I have already taken probably too much time and I do not wish to weary your Lordships. Briefly, the second answer is that such a provision would render virtually the whole of our law in a state of considerable uncertainty. Indeed, it would create a lawyers' paradise, a field day for lawyers. Any point of English law—common law, statute, or whatever it may be—could be challenged in any court or tribunal, however lowly, throughout the land.
There is a considerable danger in these days of militancy, of which we are so conscious, that such an opportunity would be largely exploited—at public expense of course. Such litigants would be given legal aid, because a constitutional issue would be raised and therefore legal aid could hardly be withheld. One sees already in the light of militancy a strong tendency in the present day for people, when they are dissatisfied about some ruling of a court or statute in English law, immediately to threaten to take their case to the court at Strasbourg. I will give two recent examples. There was the case concerning the noise created at Heathrow; and the introduction of a Channel tunnel has already prompted declarations by various people that they propose to threaten proceedings at Strasbourg.
But once such a change as that envisaged by this Bill has been effected, what would happen? Such people will first have a tremendous parade of litigation, no doubt right up to a judicial committee of your Lordships' House. Being dissatisfied with the decision there, they would probably then take their case to Strasbourg. We shall see enormous exploitation of that kind of issue. I suggest that that is altogether too high a price to pay for introducing into our law a provision that is at best of marginal advantage and which is so totally outweighed by serious detriments.
By way of conclusion I shall make two brief further comments. When things are not going too well economically there is a tendency for us to blame our institutions and argue that if they were changed, 182 everyone would be much better off. I believe that we should hesitate long to overthrow institutions which have served us so well in preserving democracy and freedom in this country.
My final point concerns the notion that having a Bill of Rights of this kind will in some way perform an educational role. I remember that the noble and learned Lord, Lord Scarman, in giving evidence before our committee, said he would like to see human rights in the form of a catechism to be put on the walls of schools so that children would learn them, and that this would benefit humanity. For my part it seems to me that what we lack in this society of ours at the moment is not so much a sufficiency of rights as a sense that a free society entails duties and responsibilities. If we are to have a catechism on our school walls, the catechism I would prefer is one which exhorted the pupils to that sentiment rather than filled them with a notion of all the different rights that they possess and which can form the subject of litigation in our courts of law.
§ 8.20 p.m.
My Lords, I understand the reservations of the several noble Lords who have spoken criticising the Bill. Nevertheless, it gives me great pleasure to turn the scales and very warmly welcome this Bill and to congratulate the noble Lord, Lord Broxbourne, on his very eloquent introduction.
I shall deal with two very important, to my mind, aspects of this legislation: its impact on children and ethnic minorities. Of course, in a country like ours, which is highly civilised and highly industrialised, a Bill such as this should not be necessary. But it is a tragic fact that human rights violations are increasing, whether they be the grave kind, like murder and rape, already punishable under existing legislation, or the subtle kind less easy to detect and spelt out in the articles of this convention. This increase is surely part of a world-wide pattern. Is it not a fact that as man becomes cleverer and cleverer, so he also becomes crueller and crueller? As we become more and more adventurous, are we not perhaps at the same time growing less compassionate and less caring? We explore the mysteries of the moon and the marvels of Mars, and yet we fail miserably, in the words of the Scriptures, to "live peaceably one with another".
When I asked an Unstarred Question in your Lordships' House on 20th July 1983 I quoted an Amnesty International report which listed grave violations of human rights in no less than 119 countries; and Great Britain was among that number. The same basic pattern prevails today and I am sorry to say that our country is still on the blacklist.
The abuse of children is perhaps one of the most terrifying aspects of this world-wide pattern. It is, of course, most serious in the third world, but is it not possible that some of the terrible things happening in the third world might spread—perhaps are already spreading—to this country, bearing in mind the powerful influence of television which so often portrays scenes of terror and torture, senseless slaughter, degradation and despair? In my speech on 20th July I described what was happening in various 183 parts of the third world. In India, for example, about 16 million children are living in slavery, or near slavery; in Iran and Turkey tiny girls, some as young as five, are forced to make carpets because their fingers are so nimble; in Turkey, too, boy soldiers are being conscripted into the army. There was a recent report on the BBC of a terrible scene in Bangkok where a little girl of three—yes, my Lords, three—was chained to the wall and forced to stuff heroin into sachets.
The sexual abuse of children and child prostitution is spreading at a terrifying rate. Indeed, so serious has this become that the World Health Organisation recently formed an international team to advise countries on this "universal problem". According to the WHO, over the past decade there has been an increase of 576 per cent.—yes, my Lords, 576 per cent.—in cases of sexual abuse of children world-wide. This, of course, covers only the cases known to the police. The real figure is probably very much higher. The main centre of child prostitution in Asia is Bangkok. Some of your Lordships will have heard about package tours arranged for businessmen to visit child prostitutes. According to a recent BBC report, girls of 15 are chained to their beds. Thailand, and the Philippines, where this is also happening, are considered reasonably advanced countries.
Your Lordships will say that surely this cannot happen here. Nevertheless, there are probably many violations of Articles 3 and 4 of the convention relating to inhuman and degrading treatment and forced labour. In many of our large cities children are forced to work for long hours in shops and other places. Here I refer to a most interesting report entitled Child Labour in London, produced by the Low Pay Unit in December 1982. Some children and young persons no doubt are actually in slavery. There was a recent report in the press about a Filipino woman keeping servants in what amounted to virtual slavery. In Saudi Arabia and, indeed, in other parts of the Arab world which I know well domestic slavery is still prevalent. I think it is possible that some Arabs in this country are keeping slaves.
What of child prostitution? Of course, it is on a very small scale here, but it is probably growing. What about those British businessmen who visit Bangkok? Might they not introduce some of their ideas here? One hates to think of it, but it is a possibility. A Swedish sociologist, working last year on prostitution in London, discovered a girls' brothel in Richmond, of all places. Two years ago there were reports of boys in the Piccadilly area being exploited for immoral purposes.
I now come to Article 5 of the convention. I think it is important to state that until 1983 children in care could be locked up in secure units, which were effectively prisons, for indefinite periods without any form of court hearing or appeal. By 1982 about 2,000 children a year—some as young as 10—were being locked up in over 500 government-approved secure places. However, as your Lordships know, we now have new legislation under which no child can be locked up in care for more than 72 hours without the juvenile court's permission, following a hearing at which the young person has the right to be present and to be represented. However, a single magistrate can 184 still authorise the detention of young people in a place of safety for up to 28 days; and that is surely a violation of the convention.
I turn now to Article 6 of the convention. Young people have no right to appeal against school suspension and expulsion. The parents' rights are very limited and certainly do no not satisfy this article. Children have no right to have their views represented when decisions about custody, access and maintenance are being made following separation and divorce. I have picked out just a few examples, and time does not permit my mentioning more; the beating of schoolchildren has of course been mentioned already.
I now turn to ethnic minorities, and I should like to deal first with Article 14 of the convention, which covers racial discrimination. The Race Relations Act of 1976 which rules against racial discrimination, is subservient to any other Act of Parliament or ministerial order—and if I am wrong, I hope that my noble and learned friend Lord Denning will correct me. It seems that some Acts violate various articles of the convention in various ways, as do certain orders; I am thinking, for example, of the increase in fees for overseas students compared with those for national students.
Speaking of racist attacks in the context of Articles 2 and 8 of the convention, racial abuse, physical attacks and murders are rife. The Home Office revealed that about 7,000 racial attacks were reported last year in Britain, and this is probably the tip of the iceberg. At present there is no specific offence on the statute book which includes racial attacks.
Articles 5 and 6 of the convention deal with deprivation of liberty and the right to an independent hearing. A recent report entitled Last Among Equals: Immigration Act Prisoners and the Remand Population, which was published in August 1985 by the Prison Reform Trust and the Joint Council for the Welfare of Immigrants, pointed out that most of the detainees held under the Immigration Act—about 1,000 in all in prison establishments—never have the opportunity of appearing before a court of law. Many of them never see information which deals with the authorisation of their detention, nor do they have any proper explanation of the reason for their arrest nor of how long they will be held.
I have covered some of these points and I shall not deal with any further aspects, except to draw your Lordships' attention to one very important document, which is both recent and relevant. It is entitled Racial Discrimination—17 years after the Act, and it was published by the Policy Studies Institute in September 1985, under their reference number 646.
I strongly commend this Bill to your Lordships, despite the obvious legal difficulties which it presents, and I inject one final thought: even if this legislation may not be necessary at present, is it not wise to have something on the statute book to safeguard what might happen in the future?
§ 8.34 p.m.
§ Lord McGregor of Durris
My Lords, Robert Alexander, the Chairman of the Bar Council, but 185 writing in The Times today in his personal capacity, has remarked in an article to which several references have already been made:The European Convention is a charter for the citizens".It is for this reason that the Alliance wholeheartedly supports the Bill and is grateful to the noble Lord, Lord Broxbourne, for moving it so persuasively on this Second Reading. These Benches feel a special debt to all the lawyers, and most notably to the noble and learned Lord, Lord Scarman, for the labours of several years which, by expounding one interpretation of the implications of the convention, have prepared public opinion for such a Bill. Their success may be measured by the increase in converts, which is slow no doubt but nevertheless very steady among all shades of opinion, even on the Left.
The noble Lord, Lord Lloyd, discerns no popular clamour for the measure but there is certainly a considerable interest. A proposal such as that in the Bill appears centrally in the manifesto of the Alliance—but of course I appreciate that nobody would describe the manifesto of the Alliance as a "popular clamour". In the recent words of a legal commentator, Mr. Paul Sieghart, when he was surveying the remarkable development of human rights which took off in the aftermath of the Second World War, there has occurred,a change in international law so profound that it can properly be called a revolution. Today, for the first time in history, how a sovereign state treats its own citizens is no longer a matter for its own exclusive determination, but a matter of legitimate concern for all other states and their inhabitants".That revolution, in which our own country played a very significant part, has issued in a code of international law which sets out the rights of individuals against the state. During the last 30 years or so, members of the Council of Europe have established a system for enforcing the rights guaranteed by the European Convention of 1952. The machinery for enforcement through a commission and a court was a striking innovation and has so far resulted in more than 10,000 complaints, mostly from individuals against their Governments, some 1,000 decisions by the commission on admissibility, and 96 cases referred to the court itself. Thus, member states have been compelled to rewrite some of their municipal law and change their administrative procedures when in conflict with the convention. What used to be unenforceable rights of 18th century rhetoric—what Bentham called "bawling on paper"—have been turned into creatures of law, at least for some citizens of the countries which signed the European Convention.
During the speech of the noble Lord, Lord Lloyd, I had some difficulty in resisting the temptation to compose a reply by Tom Paine to his view of "rights". The convention is a staging-post on the European road of moral progress. It is a commonplace in the history of morals that it is not mankind's sense of duty to neighbours which has changed over centuries but the answers to the question. "Who is my neighbour?" In primitive morality, moral obligations were confined to members of very small groups. As the group widened and relationships were established among groups, so 186 the range of rights and duties extended and new meaning was given to the biblical injunction:Whatsoever you would that men should do unto you, even so do you likewise unto them".A formal legal extension of moral obligation which treats as one group the nearly 400 million inhabitants of the states which have adhered to the convention is indeed a turning point in the history of European freedom.
When the convention is seen alongside today's technical potentialities of the electronic media, the outlook for liberty and the enjoyment of rights may be brighter than many of us have feared. Authoritarian governments have been compelled these past 40 years to pay lip-service to human rights, and they will soon lose the power as a result of new technologies to restrict and control what their subjects may listen to and even what they see on their screens.
The noble and learned Lord, Lord Scarman, explained how the Bill would give immediate access to a British court to an individual aggrieved by an act of a public authority. He could come to our own local courts where he would have access by entitlement to legal aid. An applicant from Strasbourg has no right to legal aid. He may get it from the Commission on a narrow and stringent basis and will retain it only if the Commission refers his case to the court. It would be interesting if we could learn how the British applicants to the Commission and the Court of Human Rights have financed themselves in the past.
We should remember also that the Commission is concerned not only with the preparation and investigation of cases and with the decision as to whether they are admissible; it has also established a conciliation proceedings under which cases may be discussed with member governments, and, indeed, a fair number of them have been settled in that way. The Bill, as I understood the explanations of the noble Lord, Lord Broxbourne, and of the noble and learned Lord, Lord Scarman, will lay the basis for the enjoyment by British citizens of equality before the European law of human rights.
During this debate we have learnt that lawyers, equally learned, equally devoted to the public weal, disagree sharply on the implication of this Bill both for our constitution and for our law. I do not tremble at that revelation, but I conclude that it is high time the voice of the citizen be heard in the discussion, not of course in contribution to the legal disputes but in definition of the social ends which the legal techniques are required to achieve; and that I took to be the point of the eloquent speech of the right reverend Prelate the Bishop of Oxford.
Rights under the convention can be secured by British citizens in Strasbourg. The Bill, as has been repeatedly said, makes them available here in our municipal courts. Two fundamental points seem to a layman to arise. They were dealt with clearly in the Richard O'Sullivan Lecture which the noble and learned Lord on the Woolsack gave in 1977 and submitted as a paper to the Select Committee to which much reference has been made. I select two very quick points from that lecture. The first quotation is: 187The pass has already been sold … By joining the Common Market we have put at risk both the administrative acts of Ministers and the provisions of Acts of Parliament".The second is:Since the Bill proposes no more than that which European judges are already bound to decide if need be against the British Government and the Parliament of the United Kingdom — is it to be supposed that our own judges are so stupid or so biased that they are not to be allowed to decide these matters for themselves?".The noble Lord, Lord Lloyd of Hampstead, posed the rhetorical question: why not in the Strand? My feeling was that he did not answer it fully. He said that among other things the convention dealt only with minimum standards. Nevertheless, it is to be said that 80 specific British laws or rules infringing individual liberties have required change or abolition as a result of application to Strasbourg. I am sure that he is correct in saying that the protection which a citizen may get for his liberties in the United Kingdom is probably as great as, if not greater than, that which he may secure in other countries which have signed the European convention. Nevertheless, British citizens aggrieved under these minimum standards secured redress. Why did they have to wait six years for that redress and work through the expensive and frustrating procedures of getting an adjudication from Strasbourg?
When I listen to those noble and learned Lords who fear for the position of judges—that they would be politicised; that they would be used for purposes fundamentally alien to our tradition—it seems to me that all we are discussing, though in highly emotive and prejudicial language, is our fears. Some of us fear the judges more than we fear Parliament, and others among us feel greater fear for the tyranny of a democratic majority. But, convention or no convention, what has to be done is to secure a balance between the decisions which are left to Parliament and those which are left to the courts.
Any young student of history could sit down and write an essay on the changing balance in those two areas. Neither I nor these Benches can see any substantial anxiety arising from legislation, the practical effect of which is to enable citizens to secure relief in our own courts before our own judges, which they can in any event secure in Strasbourg if they have grounds. It is for that reason that we welcome the Bill and are extremely grateful to the noble Lord, Lord Broxbourne, for moving it.
§ 8.51 p.m.
§ Lord Elwyn-Jones
My Lords, I join in that congratulation of the noble Lord, Lord Broxbourne, and commend him for his skill in arranging for this to coincide with the celebration of Human Rights Day. Whether he contrived that or not, I know not.
It has been a facinating and a significant debate in which opinions have been divided among men of ability and goodwill on this very issue. So far as your Lordships are concerned, my knowledge of what goes on in the Court of Appeal and the House of Lords suggests that there is division there also; and tonight we have seen notable division in your Lordships' House on this great question. What is not in dispute between us is the need to protect and advance human 188 rights both here and abroad. If I may say so, a large part of my own life in the law and in politics has been spent trying to do just that in many parts of the world. I was particularly happy to collaborate with my noble and learned friend Lord Gardiner in ensuring the right of petition to the individual in this country to the human rights commission and court. I am on the side of human rights. The real question is whether incorporation of the convention will advance that maintenance of human rights or create such difficulties as to produce confusion in its place.
When one examines the Bill—and I certainly do not intend to challenge any of its principles or seek to undermine the human rights it declares—one finds that there are very few absolute rights set out in the convention without restriction. But the significant thing is that those which are set out as absolute rights are already part of our existing law; and I think that the right reverend Prelate should take a little comfort from that. Indeed, I think that we shall find when we look at the provisions of the convention that most of the relevant provisions are already part of our law. What we have to examine is not only the rights that are declared but the restrictions and conditions that the convention itself imposes on their enjoyment.
Those parts of the convention that declare absolute rights are set out conveniently in the schedules. Article 3 says:No one shall be subjected to torture or to inhuman or degrading treatment or punishment".That is part of our law now; and anyone guilty of torture or inflicting inhuman or degrading treatment or punishment would be made subject to various provisions of the law. Indeed, we spent a good deal of time yesterday discussing the codes of practice which set out very detailed protections to the position of the detainee in detention.
When we come to Article 4, we find that it says:No one shall he held in slavery or servitude".It is a very long time indeed since Lord Mansfield said in that famous case, in re Somersett,Let the black go free".Slavery has been outlawed by our law ever since; so has servitude, which presumably is another word for slavery.
When one comes to consider what the article says in regard to the provision thatNo one shall be required to perform forced or compulsory labour",one comes to some of the many restrictions that the convention imposes upon these rights. Article 4(3) says:For the purpose of this Article the term 'forced or compulsory labour' shall not include"—and then there are a number of things that it does not include. It ends withany work or service which forms part of normal civic obligations".That seems to me to be a very considerable qualification. One must not therefore imagine that all the great heaven of righteousness is open in every provision of this great convention. It has its limitations.
189 Article 5 relates to liberty and security of the person. It says:No one shall he deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law".All the requirements from paragraphs (a) to (f) are already part of our law, and our citizens enjoy the procedures that are there described. Article 5(2) says:Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him".We considered that yesterday. With regard to detention, the article says:Everyone arrested or detained … shall be brought promptly before a judge … Release may be conditioned by guarantees to appear for trial".That is part of our day-by-day procedures.
Article 5(4) says:Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".Habeas corpus has been part of our law for 300 years or thereabouts.
We then come to Article 6, which deals with the requisite provisions for a fair trial. We have been advancing in our country in the direction of improving the fairness of trials for a very long time indeed, certainly through most of my lifetime. There is still a long way to go. Access to justice is still not sufficiently equal. The law itself needs constant reform. But we have never had so many available agencies to achieve reform, such as the Law Commission, the other great bodies such as Justice and the National Council for Civil Liberties. Each party has its own reform body. There is a great tide of interest and concern that our law should be better; and it has been better. But there are defects. Of course there is need for improvement. But my basic view is that those remedies ought to be domestic and made in and through our law and through Parliament. That is my basic approach to this, but let the convention stand as a marker and a guide.
Article 7 attacks retrospective legislation, which of course we do. I had a little experience of that in the Burmah Oil case: it is still written on whatever part of my anatomy may be appropriate to remind me of it! Of course, retrospective legislation is against our law, and so there it is, rightly, in the convention.
However, we then come to the areas of greater dispute—Articles 8, 9, 10, and 11. As regards those articles we find a statement of the right involved. For example, Article 8(1) says:Everyone has the right to respect for his private and family life, his home and his correspondence.There then follow the "except" provisions—the restrictions. It says:There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law".Certainly a judge could decide that if the matter came as an issue before him. However, we then come to some immensely political observations. It says:except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety 190 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 freedom of others".There is a whole catalogue of critically important political matters—political matters for which Parliament ought to accept responsibility outwith the domain of the judges.
As has been said many times in the course of this debate, there is no suggestion of a denigration of the judges as being incapable of deciding these issues. What is said is that these are essentially parliamentary and political issues for Parliament to decide. The same theme runs through all the other articles. Article 9 deals with the right to freedom of thought. Freedom to manifest one's religion is declared, not surprisingly, to be subject:to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order"—and then there is another list of requirements.
Article 10 deals with freedom of expression, and there are the same limitations. It refers to such restrictions "as are … necessary in a democratic society", and there then follows a list including national security and territorial integrity. It becomes even more manifestly political as one reads on. Article 11 is very much the same.
Our fear and anxiety—at least, my fear and anxiety, because I cannot speak for the generality of my side of the House on this matter—was expressed so well (and it has been partly quoted by another noble Lord) in the observations of Lord Diplock, whose passing we regret. He said that he deplored the effect of the impact of incorporation and the decision-making which would fall on the judges if the convention became part of our law; and at col. 1367 of the Official Report for 29th November 1978 he said:The administration of justice in our country depends upon the respect which all people of all political views feel for the judges, and in my opinion that respect depends very much upon keeping judges out of politics. To pass this Bill of Rights cannot but have the tendency to bring 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.On another occasion, having quoted those words of Lord Diplock, I said:I am bound to say I greatly fear that this uncertainty and the broadness of the terms [of the convention] may well result in a great increase of litigation in our courts if these provisions become part of our law".—[Official Report, 8/11/79; col. 1011.]Lord Morris of Borth-y-Gest (whose passing, again, we regret) said on 29th November 1978, at col. 1376:To enact this Bill would involve and introduce a parade of uncertainties".Good old Celtic eloquence came into the picture at that point.
The time has come for me to conclude. I have indicated broadly what my views are, and we await with very great interest the reply of the noble Lord the Minister to this debate. We have congratulated the noble Lord, Lord Broxbourne, on introducing the Bill as an individual Member of the House and on introducing it as a Private Bill. Many great changes in our law have been achieved by Private Bills. However, 191 this is a matter which touches fundamentally important parts of our constitution, and therefore we await with great interest the views of Her Majesty's Government upon it.
§ 9.6 p.m.
§ Lord Glenarthur
My Lords, as I think this debate has demonstrated, and as the noble Lord, Lord Lloyd of Hampstead, so clearly stated, the Bill before us is one with profound constitutional implications. No one respects more than I the wisdom and experience of my noble friend Lord Broxbourne and that of his supporters who have aided him with this measure—or, indeed, my noble friend's success in picking this day of all days upon which to debate this subject. No one who has pride in the history and heritage of this country, which has traditionally acted as a champion of human rights, could fail to consider seriously the concept embodied in the Bill.
It is, however, the constitutional implications that cause the Government concern—concern that if the Bill should be enacted we may seriously damage the delicate machinery of parliamentary democracy built up over the centuries. The Government accept the principles on which the European Convention of Human Rights is founded. The United Kingdom played a major role in drafting these principles into the convention. The United Kingdom reaffirmed support for it. The present Government recently announced their intention of renewing for a further period of five years the United Kingdom's acceptance of the right of individual petition and acceptance of the compulsory jurisdiction of the European Court of Human Rights.
The Government's reservations about this Bill are not reservations, therefore, about conforming to the principles of human rights laid down in the convention—principles of which the noble Viscount, Lord Buckmaster, gave many examples. Perhaps I may say to the noble Viscount that it is not the case that there is no law dealing with racial attacks. Section 5A of the Public Order Act 1936 makes it an offence to incite people to racial hatred, and of course living off immoral earnings, whether of children or adults, is a criminal offence too.
Your Lordships will recall, as my noble friend Lord Broxbourne said, the attempts by the noble Lord, Lord Wade, to promote a Bill of Rights, and the referral of the issue to a Select Committee of your Lordships' House under the chairmanship of the noble Lord, Lord Allen of Abbeydale. The noble Lord, Lord Allen, in a speech of great clarity mentioned that he had raised the issue in the debate on the Address. I have to say to him that I owe him an apology in that he has not received a letter from me or from my noble friend Lord Elton on the issue he raised then. I hope he will find that what I have to say tonight broadly answers the points, but I shall follow this up in writing.
When that committee reported in 1978 they set out with great clarity the arguments for and against a Bill of Rights. As my noble friend said, they were unanimous that any such Bill should be based on the European convention. The noble Lord, Lord McGregor of Durris, quoted the saying, "Who is my neighbour?" Lord Atkin, the famous judge, asked that 192 question and proceeded to answer it, I understand, by developing the modern tort of negligence. He did this under the common law unaided by a Bill of Rights, which is something which has been pressed so hard this evening.
§ Lord Elwyn-Jones
My Lords, if I may intervene, he called in aid also the parable of the Good Samaritan, did he not?
§ Lord Glenarthur
My Lords, before I stood up to speak I had the horrible feeling that if I quoted anything, somebody would come up with a counter-quote, and that is precisely what has happened.
As my noble friend Lord Broxbourne also pointed out, that committee were divided on the merits of incorporation. Six members of the committee were in favour and five members of the committee were against. I venture to suggest that this lack of consensus, which illustrated the concern of those who dissented about the constitutional issues, should cause us to reflect very seriously, and indeed this dissension has manifested itself again this evening, as the noble and learned Lord, Lord Elwyn-Jones, has just pointed out.
If we are to embark on a road that could lead to profound changes in our constitutional procedures, is it not essential that we have agreement on such a course? It has been said that this Bill would not lead to profound changes. But there is no consensus on this. We cannot be sure, and if there is uncertainty and a significant division of opinion, one must consider whether it is wise to proceed. It would be odd, to say the least, if we embarked on a written constitution only to revert back to an unwritten constitution a short while later. And this could happen without consensus.
As I have mentioned, the Government are concerned to ensure not only that basic human rights are available, but that it is open to everyone to challenge what they see as a violation of those rights. That is why we support the principles of the European convention and why we have agreed to renew the right of individual petition. It is of course reasonable to ask then why should not greater provision be made to pursue violations in domestic courts.
It was suggested by the right reverend Prelate the Bishop of Oxford that our record in Strasbourg has not been particularly good. In fact about 150 applications against the United Kingdom are registered each year, which is more than against any other state, but not much higher than the figure for West Germany. Of these registered applications from all states only a small proportion, perhaps 3 per cent., are declared admissible by the commission, and only a small proportion of admissible applications result in a finding of violation by the court.
Up to the end of 1984, when about 11,000 applications had been registered at Strasbourg, only 46 violations had been found by the court, 11 against the United Kingdom, nine against Belgium, six against Italy, five against West Germany and the Netherlands, four against Austria, two against Sweden and Switzerland, and one against Ireland and Portugal.
193 If the right reverend Prelate was suggesting that had we incorporated the convention, we should have had many fewer violations found against us by the court, I have to say that it is of course a hypothetical argument. But it is a fact that of the 17 countries which have accepted the right of individual petitions, those six which have not incorporated the convention have had only 14 violations proved against them by the court, while the other 11 countries which have incorporated the convention have had 32 violations proved against them. This hardly supports the theory that incorporation is per se some sort of proof against being found in breach at Strasbourg.
The reason for the Government's opposition to incorporation is not because of any desire to inhibit the pursuit of human rights. Indeed, it has nothing to do with human rights as such. Our concern is that incorporation could cause a shift in the balance of our democratic system. Our machinery of government does not depend on a written constitution. Our statutes are specific in nature and set out measures that the Government of the day decide are necessary for our democratic society. If society does not approve of the Government's actions, the Government will not be re-elected.
My noble friend Lord Broxbourne suggested that if this Bill became law the provisions of the convention would be integrated and applied by British judges in British courts instead of by the members of the European commission and court. The only comment I should make on that is that people who did not succeed before our courts could go on to Strasbourg afterwards and, if the Strasbourg organs disagreed with our courts, they would have the last word and the United Kingdom Government would be obliged under the convention to give effect to their decision even if it conflicted with that of our courts.
Were we to incorporate the provision of the European Convention in accordance with the provisions of this Bill, we should have taken a major step towards a written constitution and we should have on the statute book a series of non-specific provisions with no precise definition. For example, Article 8 requires that everyone has the right to respect for his private and family life, his home and his correspondence. Who then will have to decide what is necessary for our democratic society within that article? Not the elected Government, not Parliament, but the judiciary. With all respect to the learned members of the judiciary, and with all due deference to the noble and learned Lord, Lord Scarman, who foreshadowed a little of what I have to say, I must ask whether it is right that they should be required to take such decisions, many of which, as the noble and learned Lord, Lord Elwyn-Jones, the noble Lord, Lord Lloyd of Hampstead, and the noble Lord, Lord Allen of Abbeydale, suggested, will be politically charged, and that they should take those decisions with no requirement to answer to Parliament or to society itself.
One has to ask whether this is a role that would be welcome to the judiciary. Judging by the remarks of the noble and learned Lord, Lord Denning, he at least did not seem to think that they would welcome it.
194 Both the noble Lord, Lord Banks, and the noble and learned Lord, Lord Scarman, referred to the delays that occur before a case reaches the European Court. The fact is that few cases reach the court because the commission acts as a screen, as the noble and learned Lord, Lord Denning, suggests, particularly in rejecting cases that it considers not to be admissible. There appears to be no provision for such a screen in this Bill and there would be access to our courts for all those who could relate their cases, spuriously or otherwise, to one of the general articles of the convention. The only reservation that I can find refers to frivolous or vexatious proceedings, but this would cover only a tiny minority of cases.
Not only would there be this shift away from the determination of society's needs by its elected representatives to the determination of society's needs by a non-elected judiciary, but we should have the problems associated with the uncertain interpretation of the non-specific articles of the convention. If we were to enact the provisions of this Bill, could we be certain that the present statute book would not be open to challenge? If not, "so be it" is a not unreasonable answer. But can we be sure that the present statute book and the laws we pass after incorporation will not be struck down a few years later as the interpretation of the articles of the convention evolves either in this country or at Strasbourg. And evolve it no doubt will. Who would have thought when the convention was drafted that our laws bearing upon homosexuality, corporal punishment in schools and marriage in prison would be found to be defective?
Of course, the Bill makes provision in Clause 4, which has been referred to by many including my noble friend Lord Campbell, for Acts to contain a provision expressly excluding the application of the incorporated provisions. Presumably Parliament will be hesitant to apply this because it will, as now, frame legislation to conform with the current interpretation of the convention. But will Parliament be able to be confident about the future? I do not think it will be. An express provision would, of course, insure the Bill. But it seems to me that to do this would be to negate the effect of the Bill before us.
The Government's view is that we cannot readily predict what effect the enactment of this Bill would have on our constitutional heritage and what consequences would arise from the inevitable uncertainties which it would create. Were the Bill necessary to confer basic human rights on the individuals of our society, we should regard it differently. However, it is not necessary for this purpose and we consider the risks I have mentioned such that we should be taking a completely unjustifiable gamble were we to support the Bill. For those reasons, I have to tell your Lordships and my noble friend that the Government cannot support this measure.
§ 9.20 p.m.
§ Lord Broxbourne
My Lords, that, naturally, was a disappointing wind-up by my noble friend the Minister. Perhaps in the calm of the Christmas Recess he would like to think about this—I was going to say a little more clearly, but I mean closely—a little more closely so that he can see the merits of this proposition. 195 Perhaps he would like to seek a little advice from a colleague. I suggest that, away from the glare of these lights, he has a quiet word with the noble and learned Lord, Lord Hailsham, to see whether he can give him any guidance on this matter.
We have had Scriptural quotations. With two eminent right reverend Prelates present I hesitate at the end of the day to add mine. However, my noble friend may find it appropriate for the season, after this cogitation and consultation, to be reminded of the text:There is more joy in Heaven over one sinner that repenteth than in 99 just men who have no need of repentance".I shall not detain your Lordships for more than a very few minutes. It would be a very poor return for the attendance here and the excellent speeches we have had if I did, more particularly as not all the noble Lords who were present at the beginning of the debate are now present. However, I should be remiss if I did not thank noble Lords for their very interesting contributions, with a very particular expression of appreciation for those who made kind and characteristically over-generous references to my exposition of the Bill in opening this debate.
On a head count I think we just about win. I see the noble and learned Lord confirms this. However, in addition to that, it has been said that the lawyers are split. Well, lawyers never agree with each other; that is the nature of the calling. Thus it is no surprise that the lawyers split more or less 50–50. What is significant is that when one goes beyond them one finds unanimous support in both the voice of the Church and the citizen. That surely must be of some account in your Lordships' House. Although it might not qualify quite for the criterion of the noble Lord, Lord Lloyd of Hampstead, of the popular clamour, at least it is a very respectable basis of support.
I think, with great respect, that those who have made criticisms to some extent have misdirected themselves in the language of the law. I could not help but think that some of the criticisms which were launched against the proposals of this Bill really more properly should have been launched against the convention itself, or at any rate against the right of individual petition. Some of these criticisms went far beyond the simple point which lies at the heart of this Bill and which I sought to explain in opening.
The noble and learned Lord, Lord Elwyn-Jones, in a felicitous and persuasive speech which I admired and respected—as I did those speeches he made in earlier days in agreeable forensic contests—criticised 196 the incorporation in the schedule of the articles of the convention because some of them were already in English law. I should have thought that that was very much in their favour. How much more devastating his criticism would have been had he been able to say that all this runs counter to the principles of English law!
Then, for good measure the noble and learned Lord said, "Look at these restrictions and qualifications in the convention as incorporated in the schedule". But how much more critical he could have been, and no doubt would have been, if there had been no qualifications and restrictions. Would he not then, with that matchless eloquence, have denounced it and said that these are generalised concepts which have no place in the jurisprudential idiom of this country? He could have made a wonderful speech on those lines. He shakes his head, but I am sure that he would have done so.
I think that those criticisms show the moderation of the request which we are now making to your Lordships. This is not the time or place to comment on detailed criticisms, but I would mention very briefly just two. The first is Clause 4, because it has loomed so large in many speeches, including the persuasive speech of the noble Lord, Lord Allan of Abbeydale—very temperate and balanced, as I would expect. I am sorry that he is not with me on this occasion. I hope that we can soon resume the agreeable co-operation to which he referred last week on the subject of mental handicap.
Clause 4 is not, as I sought to explain in opening, an assault upon the sovereignty of Parliament. On the contrary, Clause 4 is simply Parliament's direction as to the way in which statutes inconsistent with this statute are to be interpreted. That is what Clause 4 seeks to do; and subsection (2) of Clause 4 expressly retains the sovereignty of Parliament. The noble Lord shakes his head, but he is on a false point. It is a matter we can come to in Committee; we will talk about it then. Amendments are to be tabled, we understand. They will certainly be looked at and read with interest. If they improve the Bill, they will be accepted. If they are wrecking amendments designed to undo the principle and purpose of the Bill, then it will be our duty to invite your Lordships to reject them. I repeat my thanks to your Lordships and ask that the Bill be read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at twenty-nine minutes past nine o'clock.