§ 3.9 p.m.
§ Lord Holme of Cheltenham rose to call attention to the case for the incorporation of the European Convention on Human Rights into United Kingdom law as a Bill of Rights; and to move for Papers.
§ The noble Lord said: My Lords, the Motion calls for attention to be paid to the case for the incorporation of the European Convention on Human Rights into British law as a Bill of Rights. It is worth saying that in moving this Motion I feel both some pride and some embarrassment. The pride I feel is that I am a member of the party which has kept the torch alight for this specific issue in this House over many years. I refer to the consistent activities of Lord Wade. Donald Wade brought before your Lordships' House, on no fewer than three occasions, Motions for a Bill of Rights. He was a staunch supporter of this cause and would have been pleased to see how wide is the interest and support that now exists in this country for the proposition that I bring before the House today.
§ I am also very glad to be able to speak in this Chamber on this subject because in 1985, the last occasion on which your Lordships debated it, a Bill was brought forward by the noble Lord, Lord Broxbourne, with the active involvement of the noble and learned Lord, Lord Scarman, and I was able from outside the House, as chairman of the Constitutional Reform Centre and chairman of the rights campaign, to work with them closely on that Bill. It is a particular cause of disappointment and sorrow to me that neither is able to be here today for this debate, as they would have wished to be.
§ Any embarrassment that I feel is, first, because I am not a lawyer. I am a new Member of the House, which can be remedied by time, but I am not a lawyer and at my time of life I do not expect to be a lawyer. This is a subject which attracts lawyers, as can be seen from the noble Lords who intend to speak today. However, 186 I do not believe that, in the end, the issues concerning a Bill of Rights in this country should be monopolised by lawyers. It is a subject on which lay voices should be heard and I am glad that I have this opportunity to be the voice of a layman.
§ The embarrassment I really feel is on behalf of this country. We are now the only country in the Council of Europe that does not have either a Bill of Rights or a written constitution. I am sure that we shall be told later in the debate that that is our glory, but I do not believe that it is. It is a great weakness of this country that we are the only country that is not prepared to delimit and demarcate the powers of the state, that we are the only country which is not prepared to have the rights of its citizens as a rock on which good government and genuine democracy are founded.
§ Some people may say that democracy and the demands of democracy are met by the election of Parliament, the House of Commons, and that that is both necessary and a sufficient condition for human rights and freedoms to be reflected. I do not take that view. First, Parliament has been elected by a minority of the electorate. Incidentally, how noteworthy it is that the German election has produced a fair result, conducted on a proportional representation system, in which the government will be based on a majority of the citizens of the Federal Republic.
§ However, even if we had a genuine majority government in this country, instead of alternating minority governments, we would have to pay heed to the wise words of John Stuart Mill that the rights of minorities are not always respected by the majority, that there are minorities and individuals who need permanent and enduring protection. It is in that spirit that I bring forward the Motion this afternoon.
§ Although I am pleased as a Member on these Benches to have this opportunity to introduce the Motion, it is worth emphasising that this has not been, either in the country or in this House, primarily a partisan issue. The cross-party support on the occasion of the Broxbourne Bill and the cross-party support shown when that Bill was revived in the other place by Sir Edward Gardner the following year demonstrates that there is interest and support across the party spectrum.
§ Even more recently than that we have seen interesting expressions of support by the Institute of Economic Affairs, a Right-wing think-tank, for the prospect of incorporating the European Convention on Human Rights, and next week the Institute for Public Policy Research, a think-tank linked with the Labour Party for producing policies for the Left in Britain, is to publish a paper called A British Bill of Rights. That institute is presided over by the noble Baroness, Lady Blackstone—she is not in the Chamber at the moment—and I am delighted, having been sent an advance copy of the paper, to be able to congratulate her on it and express the hope that the institute will have a benign effect on the formation of Labour Party policy on this important subject. Therefore, there is interest across the political spectrum.187
§ In 1985 we drew particular encouragement from the support of the then Lord Chancellor, recently retired, the noble and learned Lord, Lord Hailsham, who I am glad to see is here this afternoon.
§ Many people would go further than the Motion. Many would say, as the noble and learned Lord, Lord Scarman, said in his Hamlyn lectures, that there should be a written constitution in this country with entrenched rights. My own party holds that view. However, the Motion has much more modest aims. It proposes simply to take the European convention and make it part of British law so that British citizens in British courts may have access to the rights for which at present they have to travel a long, expensive and weary road to Strasbourg. The Motion proposes to domesticate and bring into our domestic laws those rights which at present can only be obtained in Strasbourg. It does not have the profound constitutional implications in terms of the sovereignty of Parliament that a written constitution or a fully entrenched Bill of Rights would have.
It may be worth while recapitulating for your Lordships the history of the European Convention on Human Rights. It was ratified by the Labour Government in 1951 after considerable misgivings. Lord Jowett, who was then the Lord Chancellor, advised the Labour Cabinet against ratification. Interestingly, one of the reasons he gave for advising against ratification was that the consequence would be that,
we shall have to bring in legislation applying the conditions of the Convention to our domestic law".
He saw clearly that the inevitable consequence of ratification would be that the Motion we are now discussing would become a pressing reality.
§ The European Convention on Human Rights is not some alien piece of law codification. It represents the classic rights with which we are familiar in this country: the rights that have figured in most international statements of human rights and international conventions to which we are also signatories. The drafting of the European Convention on Human Rights was largely undertaken by Sir David Maxwell Fyfe, later Lord Kilmuir. The wording, language and spirit of that convention in many ways reflect the best of the British tradition and approach to rights in our own common law.
§ Moving on, in 1966 the Government accepted the jurisdiction of the court and accepted the right of individual petition. Since 1966 we have been the most active customers—if I may put it so irreverently—of the European Convention on Human Rights and the European Court of Human Rights. We have had more cases brought before that court than any other country in Europe and we have had more judgments made against us. We are a large European country so to some extent that is understandable.
§ However, the list of cases does not make altogether happy reading. They include: inadequate safeguards for personal privacy against phone tapping; ill-treatment of suspected terrorists in Northern Ireland; unfair discrimination against British wives of foreign husbands under the immigration rules; and dismissal 188 of workers on account of the operation of a closed shop. There is also the famous Sunday Times thalidomide case which rested on freedom of speech.
§ As I have said, it is possible for a British citizen to seek remedy and justice in the European Court even without incorporation of the European Convention on Human Rights into British law. However, that process is expensive. It can take up to seven years and the costs in terms of both time and money mean that the remedies available for breaches of human rights are not normally available to ordinary citizens whose rights have been infringed. Thus it is not surprising that in 1977 the Standing Advisory Committee on Human Rights in Northern Ireland recommended that we should incorporate the European convention. Interestingly, that is one of the few issues which unites all parties in Northern Ireland. If there is an issue on which the whole political spectrum is united in Northern Ireland it is that there should be incorporation of the European convention and that that should be available to citizens in Northern Ireland.
§ In 1978 your Lordships' House established a Select Committee which recommended by an extremely narrow majority—one—the incorporation of the European convention as a British Bill of Rights. We are now 12 years further on and nothing has happened. I wish very briefly to recapitulate the arguments for bringing the convention into our domestic courts. First, I have in a sense already mentioned ease of access and the closeness to remedy. Secondly, there should be in a European convention an openness of texture which would make it possible for future generations gradually to develop and interpret rights in the way that they are in other democracies such as the United States, and be responsive to the changing needs of society. Thirdly and crucially, the convention is to check the exercise of improperly administered power by the Executive and the state.
§ For most of the time we live in a country in which the intention of government of all kinds, including government agencies and local government, is honourable and administration is fair. But that is not always the case. To paraphrase Lord Acton, power is delightful; absolute power is absolutely delightful. The noble and learned Lord, Lord Hailsham, has said that too easily in this country we find ourselves with a system which is more properly characterised as an elective dictatorship where there are not limits on the exercise of executive power of the kind that other democracies take for granted.
§ Finally, I suggest that in many ways the most compelling argument for incorporation of the European convention is that it would have an effect on the democratic system as a whole and on the values by which we conduct our public affairs. Bills framed with a Bill of Rights in mind would be Bills more properly framed. Greater care would be taken by civil servants in the execution of their duties and they would be sensitive to the need not to encroach on the position of the citizen.189
§ Yet at the same time there are powerful arguments which should be acknowledged against a Bill of Rights and even against the incorporation of the European convention. First, doubts are expressed about the judiciary. Some will say, particularly those on the Left, that it should not be for judges to concern themselves with matters which are the exclusive province of elected officials. It is fair to say that the selection and training of the judiciary are areas in which it is possible to imagine that, in a perfect world, there might be improvements. The independence of the British judiciary and the fact that we have the potential for a system of checks and balances is one of the glories of the British system. There is the possibility of checks and balances. British judges have to take the law as they find it. The law which they find does not include this broad, generous tradition of human rights which a European convention would import.
§ The other argument used is that any Bill of Rights would meet head on the problem of parliamentary sovereignty. I readily acknowledge that is a problem. However, the Motion does not in any way seek to encroach on parliamentary sovereignty. Those who would like a more comprehensive constitutional settlement have to face up to the fact that it would affect parliamentary sovereignty and that we would move to a system of checks and balances in the full constitutional sense. That is not what the Motion says. It says that we should incorporate the European convention.
§ If Parliament chose to incorporate the European convention as a Bill of Rights, a subsequent Parliament could repeal that Act. As long as the Act was in place it would be incumbent on Parliament expressly to suspend, repeal or amend that Act; otherwise subsequent legislation would be deemed to be in accordance with the Bill of Rights. In fairness, it must be said that those who believe that we should go down that path hope that we shall have a kind of moral entrenchment of the Bill of Rights of the European convention. Over time it would begin to assume the character of something which the citizens respected and which any government would be reluctant to repeal.
§ There is now a new and urgent imperative for us to consider the incorporation of the convention. It rests on the international developments of the past year or two. In this House on several occasions we have found the opportunity to applaud the changes which have taken place in Eastern and Central Europe over the past year. The drive in those countries towards democracy, though still precarious, has been spectacular. It is interesting that our new partners in Eastern Europe have learnt the hard way that there are no short cuts when you want to set up a system of democracy and human rights. They are not always exactly the same thing, though they are closely connected.
They have learnt the need to enshrine inalienable rights within the law so as to guard against future totalitarian regimes. At the Copenhagen meeting of
the Conference on Security and Co-operation in Europe the participating countries, which included Hungary and Czechoslovakia, declared:
human rights and fundamental freedoms will be guaranteed by law and in accordance with (participating States) obligations under international law".
The conference document commits the signatories to,
consider acceding to a regional or global international convention concerning the protection of human rights, such as the European Convention on Human Rights".
As a direct result of that conference the Czechs are now in the process of incorporating the European convention into their domestic law. Hungary has already committed itself to incorporation.
The United Kingdom was also a participant in the CSCE Copenhagen conference, but I regret to say that our Government have not followed the example of Hungary or Czechoslovakia. Our Government have taken no steps towards incorporation. Yet on 5th August this year, in Aspen, Colorado, our then Prime Minister called for the creation of a Magna Carta for Europe. She said, in very inspiring words:
I propose that we should agree on a European Magna Carta to entrench for every European citizen, including those of the Soviet Union, the basic rights which we in the West take for granted. We must enshrine certain freedoms for every individual: freedom of speech, freedom of worship, freedom of access to the law and to the market place; freedom to participate in genuinely democratic elections; to own property".
She concluded by saying that there should be,
freedom from fear of an over-mighty state".
§ At the conference in Paris held two weeks ago those commitments were repeated and in a sense they were built on. Yet Britain has done nothing to entrench those basic rights in our own domestic law. Britain is now in grievous danger of being accused of double standards. If we continue to urge entrenchment of human rights on other countries, why are we not prepared to take our own medicine?
§ It is possible that some noble Lords think—they may even say so later in the debate—that Britain has a long tradition of democracy and an excellent record on human rights, but, unlike the states which are only just shaking themselves free from totalitarianism, has no need of such remedies. I hope that I have been able to explain why I believe that is not the case. European law is now creeping and seeping into our judicial system. Would it not be better in the case of European human rights law to face that directly, to welcome it into our domestic law and so enrich our domestic law with it? I should like to see this country become a leader and not a laggard on the question of human rights. My Lords, I beg to move for Papers.
§ 3.30 p.m.
§ Lord Campbell of Alloway
My Lords, the House will be grateful to the noble Lord for introducing this important subject for debate. It is assuredly not my purpose to extinguish the flames of the torch carried by the noble Lord, only to use that torch to seek to illuminate another corridor of approach. As to embarrassment, my embarrassment on this occasion is that I am a lawyer. I wholly accept that there is no monopoly of lawyers and that the ultimate decisions 191 and opinions are the lay decisions taken in your Lordships' House. But that having been said, I do not think we have to worry too much about taking lessons in democracy from Czechoslovakia, Hungary or elsewhere.
Although incorporation of the convention into United Kingdom law as a Bill of Rights is opposed, there are, however, many matters upon which I hope we can all make common cause. A means of resolution must assuredly be found so that effective and appropriate action may be taken by the Government to resolve the problem of the absence of a remedy in the United Kingdom for breach of convention. A means of resolution other than that proposed by the noble Lord, which was not considered by the Select Committee of your Lordships' House set up to report on the Bill of the noble Lord, Lord Wade, will be proposed, but tentatively proposed, for your Lordships' consideration.
At the outset, let us clear the decks and let us state the matters on which we can make common cause. First, if United Kingdom rights were to be repatriated, to use the term of the noble and learned Lord, Lord Scarman, but not in the sense in which he used it, the vast majority of cases would find a remedy in the United Kingdom, with Strasbourg as a long stop, and this horrifying spate of adverse judgments against the United Kingdom since 1975 would be stemmed. Can we not make common cause on that?
Secondly, the extant system of "ad hoc" domestic legislation —it really is post hoc propter hoc legislation—to give effect to these adverse judgments is wholly unsatisfactory. Surely some form of judicial process must be established to adjudicate here in the United Kingdom on alleged breaches of convention in the light of the relevant body of jurisprudence, with power to afford a remedy within the meaning of Article 50 of the convention, thus depriving the Commission and the Court of Justice of jurisdiction to entertain complaints as to breaches of convention owing to absence of a domestic remedy, which is the present position.
Thirdly, if a Bill of Rights were to be introduced, this would not substantially infringe the sovereignty of Parliament, and the judiciary would be capable of interpreting a Bill of Rights. The arguments for and against a Bill of Rights Act to incorporate the convention into United Kingdom law were fully considered at paragraphs 32 to 34 of the report of the Select Committee of your Lordships' House set up to consider the proposal of the noble Lord, Lord Wade, a proposal on which the Select Committee was split right down the middle. The noble Lord, Lord Allen of Abbeydale, split with the five who dissented on the proposal. That is not exactly the background on which we can all go forward. That is why I am seeking to find another corridor.
The next matter on which surely we can make common cause is that by ratification of the Treaty of Rome and the Single European Act we have accepted the supranational effect of Community law as interpreted by the Court at Luxembourg, which in practice applies the convention and the jurisprudence 192 of the Court at Strasbourg. I turn to the last matter on which I am sure we can all make common cause. The time has now come when, as a facet of a new approach to our treaty obligations in Europe, consideration must be given to affording a domestic remedy in the United Kingdom for breaches of the convention.
There are objections to incorporation by direct supraimposition of general application by statute, whether under a Bill of Rights or not. Certain articles of the convention—Articles 8 to 11 in particular—are concerned with political issues which are more properly for Parliament to decide and not the judiciary. Secondly, the form of the convention is not apt for general application by direct and immediate supraimposition by statute.
I shall quote if I may the speech of Lord Elwyn-Jones in the debate on Lord Broxbourne's Human Rights and Fundamental Freedoms Bill in December 1985. It was a remarkable speech which I shall always remember and in which, having done his homework as he always did, Lord Elwyn-Jones cited the observations of the noble and learned Lords, Lord Diplock and Lord Morris of Borth-y-Gest, in support of his views. I shall not weary your Lordships by quoting all of it. It is there for noble Lords to read and most noble Lords have no doubt read it. He said in one sentence that:this uncertainty … may well result in a great increase of litigation in our courts if these provisions become part of our law". [Official Report, 10/12/85; col. 190.]One could argue for ever whether he was right or wrong; but what is unarguable is that if that is the considered opinion of a jurist of such eminence, it would be hazardous to ignore it.
As regards the proposed resolution, in the light of full discussion and debate on the Bill of my noble friend Lord Broxbourne, it is accepted that any attempt to enlarge the process of judicial review would not be appropriate and that my personal attempts in this regard were wholly misconceived. However, it is suggested that there are two viable options, either of which, if implemented, would render incorporation of the convention into United Kingdom law by a Bill of Rights unnecessary. That is the corridor which I would use the noble Lord's torch to illuminate.
We should either set up a special court with plenary jurisdiction to adjudicate on all complaints on alleged breaches of the convention in the light of the relevant body of jurisprudence, to afford declaratory and injunctive relief and to award damages in compensation: thus to afford a full and effective judicial remedy within the meaning of Article 50 of the convention.
On the other hand, we could appoint a commissioner to entertain all such complaints, as was proposed some 20 years ago by Lord Silkin of Dulwich in his Protection of Human Rights Bill which, alas, was counted out in another place. In either event, express statutory provision would be requisite and there should be a right of appeal, but only with leave, direct to the Appellate Committee of your Lordships' House. Of course, the special court would be more satisfactory, but it would also be more expensive.
193 This is not the occasion upon which to consider the precise manner in which either institution would discharge its functions so as to afford an effective remedy under a new set of statutory rules or regime. The rectitude of the principle in question, and the machinery for effective operation, could be considered not only by your Lordships today, but also by my noble and learned friend the Lord Chancellor, the Law Commission or a Select Committee of your Lordships' House.
There is no doubt that the time has come when action must be taken by government. Even if in today's debate your Lordships are not agreed upon the form of the action to be taken, that does not dispose of the essence of the problem; namely, that action must be taken. I beg to move for papers
§ 3.45 p.m.
§ Lord Allen of Abbeydale
My Lords, it is some time since this important issue last had an airing in this House. The noble Lord, Lord Holme of Cheltenham, has done us a service in raising the issue and doing so in such a persuasive way. In my innocence, I thought that there would be genuine agreement on one point; namely, that if there were to be a Bill of Rights, it would be best achieved by incorporating the European Convention on Human Rights. But I am now not quite so sure on the matter, having also seen an advance copy of the document to which the noble Lord referred. However, that is what the Motion suggests and that is what we are debating today.
The convention is far from perfect. Indeed, it is somewhat inelegant, notwithstanding its provenance. For example, it does not deal with economic, social or cultural rights. But to try to evolve yet another code and drag in the international covenant on civil and political rights when we and so many others are committed to the present convention would cause enormous problems.
Opinions begin to differ when one goes on to consider whether incorporation in our domestic law is the right course. There is certainly a case for doing so. We all believe in human rights; we are signatories to the convention; and, as the noble Lord pointed out, the other signatories embody the substance of the convention either in their written constitution or in their domestic law; and we are unique in looking on the Strasbourg court, slow and underfunded as it is, as in effect a court of first instance. When I had the privilege of chairing the Select Committee of your Lordships' House on this question in 1978 —and when as the noble Lord, Lord Campbell of Alloway, reminded us, I ended up by voting in the minority—I was then persuaded that the arguments against incorporation into our law were stronger on balance. Over the years, I have remained of that opinion, and on the information at present available I remain so. I shall try to illustrate the reason behind that view.
It has long been the practice in this country to legislate in a specific form and entrust to the courts the role of interpreting such legislation. As we all know, the convention proceeds in a totally different way. It 194 provides for rights in the most general terms. It also provides for permissible exceptions to these rights—again, in the most general terms. If it were made part of our domestic law, overruling anything previously on the statute book, a number of consequences would follow. It seems to me that in the first place it would introduce a wide-ranging element of uncertainty.
Let us take as an example Article 8 of the convention. The article states that everyone has the right to respect for his private and family life, his home and his correspondence. But it goes on to say that there can be interference by a public authority with this right, if necessary, in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom of others. That is quite a list.
No one would know what those very general provisions meant in our law until the courts had laid it down—and it had not been reversed in Strasbourg—on the accident of the cases coming before them. That would apply in areas covered by a number of articles such as freedom of speech, freedom of the press, privacy, breach of confidence and contempt, to name but a few. It would be the courts, the unelected judges, and not Parliament who would be saying what those words in the Bill of Rights meant.
It may be said that we have already incurred that uncertainty by subscribing to the convention; but, as a set of principles of domestic law, the convention would have a life of its own and could be invoked all the time in our courts which would have to make decisions, probably without any guidance from the jurisprudence in Strasbourg. Nor would it be a question of giving to our judges a similar role, in relation to the convention, as is played by the judges at Strasbourg.
What the Strasbourg court says in essence, if it finds against us after measuring our domestic law against the yardstick of the convention, is that we have not acted in accordance with the principles enshrined in the relevant article of the convention, and that we had better go away and put things right. That we do, if possible, by administrative actions but if need be by legislation under the ordinary parliamentary procedure, as with telephone tapping or caning in schools.
There may be various ways in which the problem could be met, and there is opportunity under that procedure for thought and consultation as to which of the ways would be best. However, if the convention were part of our domestic law, as I see it, it would fall to the judges to say, there and then in a particular case, what the relevant article meant in our law, since that article would be up-to-date law and would override any previous statutory provision. The judges would have to do that on the spot without being in any way equipped to review possible alternative ways of dealing with the problem. Many of us would find it hard to take that judicial encroachment into matters we have been brought up to believe are for the legislature.
195 The noble Lord mentioned entrenchment. I am not a lawyer, but I believe that the legal advice we received on the Select Committee about entrenchment did not match the views that he expressed. However, we might possibly agree that we should be left with a position of moral entrenchment.
The inevitable consequence of any such development would be that the judges would tend to become embroiled in political issues. As the noble Lord said, there are those who believe that the judges are not suitable to be the policy makers on issues such as freedom of thought, conscience and religion, provided for in Article 9. That is not the point that I am making. I am trying to say that they would be considering arguments, and applying criteria, which on any ordinary basis would be regarded as political. One has only to look to the USA to see a supreme court which concerns itself with issues which here would clearly fall to be settled by the legislature. For example, abortion, capital punishment, telephone tapping and compulsory sterilisation for the sub-normal.
The result there is that the political, philosophical and social views of the members, or would-be members, of the court are matters for public debate and scrutiny. It is not a fate which one would wish to see overtaking the judiciary here; but I do not see how it could be altogether avoided if the noble Lord, Lord Holme, were to have his way. I recall that it was that consideration that primarily led the late Lord Diplock (for whom I have the highest regard) to come down against incorporation.
It is on such grounds that I still come down against incorporating the convention into our law and against a Bill of Rights in the form suggested by the noble Lord. My noble friend Lord Lloyd of Hampstead, who is out of the country, has authorised me to say that he shares those views.
There is one final point: there are risks of exaggerating the importance of a decision on this issue, whichever way it goes. Even more important to my mind are the depths of society's commitment to human rights and values, and the vigilance of Parliament, the courts and the press in protecting those rights. A society which is contemptuous of them will not be made virtuous by Act of Parliament. We hear a great deal about the American Bill of Rights; but, after all, it did not provide much of a protection against McCarthyism. Therefore, despite the eloquence and force with which the Motion was moved, I find myself, on balance, on the other side.
§ 3.56 p.m.
§ Lord Hutchinson of Lullington
My Lords, with this debate, as your Lordships will have already seen, the Chamber is following a well-trodden path. We have had two Bills and the report of the Select Committee chaired by the noble Lord, Lord Allen. If I may say so, we have never had the case put better than it has been by my noble friend Lord Holme.
I should like to place the matter in the context of recent events. When the Prime Minister stood on the steps at No. 10, he said that he wished to see a Britain at ease with itself. That was a most significant 196 statement. It signalled (did it not?) an end to the strident divisiveness of recent years and foresaw a society which, being at ease with itself, is one surely in which the individual feels truly free, and where restraints on freedom are willingly accepted; where those who abuse civil rights are clearly identifiable and accountable. Furthermore, it is a society where information is readily available upon which to bring such abuses to book, and where a citizen's vote will to his knowledge count in the election of his representatives.
The debate points the way therefore for Mr. Major if he means what he says. Today the citizen wants to know what are his civil and political rights; where they are to be found; and how his children are to learn what they are. He wants to know how he can assert those rights, and so he needs access to the law which alone can offer him protection against abuse. We see around us today a profoundly dissatisfied society where people are confused as to what are their rights and where access to law is made less possible year by year.
No matter in what area one works, or in what activity one participates, the ordinary person is frustrated and at odds with the Government. Thatcherism has been obsessed with the concept of authority; with the centralisation of power; and with the paternalism of "we know best-ism". In every Bill that reaches the House, we find clauses removing power from the individual and vesting it in Ministers and civil servants. That culminated in the legal services Green Paper in which the noble and learned Lord the Lord Chancellor blatantly aimed to bring the administration of the law itself under the will of the Executive. The noble and learned Lord was finally forced by the House to abandon that aim.
The long list of men overboard from the ship of state, and the unceremonious manner in which the skipper herself was required to walk the plank, would seem to indicate the launch of a new, sounder and more stable Tory vessel. It could be one that could happily take on board at long last the incorporation of the European convention. Why not? The noble Lord, Lord Allen, who is a most distinguished mandarin, set out a number of reasons against incorporation. That does not surprise me. He speaks of the uncertainty of Article 8. The answer is that in over 30 cases which have gone from this country to Strasbourg the European judges have not found the slightest difficulty in coming to a conclusion within the terms of the convention and finding justice for the individual in this country.
The noble Lord said that the convention would have a life of its own in the legal system of this country. When one hears someone as distinguished and experienced as the noble and learned Lord, Lord Scarman, saying that there would not be the slightest difficulty so far as he was concerned in incorporating the spirit and the essence of the convention into British common law, one cannot help feeling that one would side with him on the issue.
The noble Lord, Lord Allen, speaks of the encroachment of the judges on Whitehall. He looks upon that with the greatest possible fear. The judges 197 would be involved in political decisions, he says. Is not the tapping of phones of ordinary individuals a matter for the courts? What about the "Belgrano"? What about the ABC case? What about the Sunday Telegraph case? What about Spycatcher? What about GCHQ? Are all these matters to be kept out of the courts and away from the judges because they have political overtones? Of course they have political overtones, but far more importantly they affect the civil rights of the individual.
In our complex world of information technology, freedom of the individual can no longer be defined negatively as it was in more leisurely and insular days in this country. "You can do or say anything which is not prohibited by law" is a wholly unworkable and inadequate principle, I suggest, in the face of the torrent of rules and regulations which now govern the behaviour of the citizen. People must now know where they stand. They seek assurance that officials—the police, immigration officers, civil servants, local government officers, politicians; yes, even prison personnel—should be clearly accountable for the power which they wield. Surely it is a sign of political immaturity to continue to cling to the myth of the protection of the absolute power of the elected Chamber to which my noble friend referred, the myth of undiluted parliamentary sovereignty, at the expense of individual justice.
The power race at present is: first past the post, minority rule, an all-powerful executive with a massively powerful Prime Minister, a weakened and undemocratic second Chamber and a denigrated and frustrated local government. That is where we stand today.
The convention sets out—brilliantly, I suggest—the individual rights to which every citizen is entitled in a democracy. That is only his civil and political rights. It provides machinery by which an individual may secure those rights; machinery which is undoubtedly cumbersome and elaborate, but no wonder when it embraces the first unique stride forward under the umbrella of the Council of Europe towards a true international community of civilised states and of course a route which was envisaged as a last resort. Why should our citizens alone compared with those of our powerful neighbours have no first resort to this basic justice in their own country? Why should they have to embark on the long, five-year trek to Strasbourg, supported by lawyers who largely take no fee?
These questions should be put to the noble and learned Lord the Lord Chancellor. With the greatest respect to the noble Lord who is to reply to the debate, it is the noble and learned Lord, with his authoritative voice, who is responsible for the judiciary. He has been, I regret, conspicuously reticent on matters of human rights, unlike one of his illustrious predecessors—the noble and learned Lord, Lord Hailsham—whom we are happy to see in his place this afternoon.
Perhaps the noble Lord was in communication with his noble and learned friend before this debate. I 198 wonder whether he has asked him why a prisoner should have to go to Strasbourg to establish his right to see a lawyer or stop wrongful interference with his correspondence if he is in one of Her Majesty's prisons. Why should a mental patient have to go to Strasbourg in regard to his illegal detention? Why should a newspaper have to go there about an article truly inconvenient to the Government and suppressed? Why should a suspect subjected to inhuman treatment have to do so? Why should a prisoner who is subject to inhuman and degrading treatment have to go there? Why should a homosexual who is subject to discriminatory treatment have to do so? Why should a foreign husband banned from joining his wife in this country have to go there? Why should a juvenile subjected to degrading punishment have to do so? Why should a long-term prisoner kept incarcerated for years on the say-so of a junior Minister have to go there?
I ask the noble Lord also: why should at least 20 other of our fellow citizens have been forced successfully to seek justice in serious matters of principle in Strasbourg rather than here in London? Why has all that been necessary? Why have at least 80 laws and regulations been either repealed or amended as a result of these long journeys to Strasbourg? No doubt the noble Lord will give his answer in due course.
Do the Government believe that our judges alone in Europe are not to be trusted to interpret and uphold the provisions of the convention? Faced with the ever-increasing misuse of power by public bodies and in the absence of incorporation the judges have adapted the common law by a process of judicial review of administrative actions. So on a very limited front they have upheld their historic role of standing between the state and the citizen. For years, in the Judicial Committee of the Privy Council, the judges have been interpreting bills of rights incorporated in Commonwealth constitutions, modelled in almost every case on the European convention itself.
If it is not the unfitness of the judiciary, is it in reality the fear of any independent curb upon executive power? That is a fear so clearly evidenced by Whitehall's distaste for the doctrine of judicial review. Hitherto the Labour Party has wrapped up its reluctance with the populist cry of judicial prejudice and conservatism. However, the views expressed recently by the noble Baroness, Lady Blackstone, and the noble Lord, Lord Irvine of Lairg—I am happy to see the noble Lord in his place—give one hope that the noble Lord, Lord Mishcon, may have seen the light himself and will tell us later in the debate of his party's conversion to the policies of Charter 88 and the Institute for Public Policy Research.
Only on these Benches has the clear principle been consistently spelt out and advanced that, ultimately, protection of human rights and freedoms can only be guaranteed by a tribunal which is wholly independent of the Executive and is free to interpret and to apply the law set out in the convention.
Therefore in the end I am not embarrassed to say that that must be a matter for the lawyers. It is the 199 independence, the training and the selection of the judges which will ensure the effectiveness of such a tribunal and the achievement of a Britain which is truly at ease with itself.
§ 4.11 p.m.
§ Lord Beloff
My Lords, I join in the congratulations offered to the noble Lord, Lord Holme, for bringing us once again round this well-trodden course, but I fear that the noble Lord may be disappointed in two respects. First, he can hardly have assumed that his noble friend Lord Hutchinson of Lullington would seize this occasion to deliver a party political oration on the follies of the Government. However, the other disappointment, which is the more serious for our debates—this relates to the arrangement of our affairs—is that the debate has been arranged for a time of day when none of the noble and learned Lords who sit in their judicial capacity can be present.
As it appears to me that a great deal must turn—the noble Lord, Lord Allen of Abbeydale, mentioned this—on the impact on the judiciary of the proposals put forward by the noble Lord, Lord Holme, I believe the whole House would have profited from the guidance of those who hold and have held high judicial office. In that sense, and with due deference to the ornaments of the two branches of the legal profession who have addressed us or are to address us today, I must say that we lack the guidance that we might have expected and which could easily have been provided if the times of the two debates today had been reversed.
I, like everyone else—this is a well-endowed think-tank —have received and studied the effusion that has come from the noble Baroness, Lady Blackstone, and her friends. It is indeed a gratifying piece of research which those of us who approve or disapprove of the idea of incorporation can only profit from. However, the thing that I found most interesting—the noble Lord, Lord Hutchinson of Lullington, must have found this the most disquieting aspect of the paper—is that the authors of the paper admit that there is no great popular clamour for change. There is no clamour coming from outside these walls from the masses of an enraged people. It is coming, let us say, from the intelligentsia. It has always been my belief that the salvation of this country is that the intelligentsia has so little influencia.
The kinds of matters to which the noble Lord, Lord Hutchinson of Lullington, has referred and which are mentioned at length in the think-tank paper are matters on which a section at least of thinking people have strong and unexplored views. However, they are also matters on which a great many other people take a wholly opposite view. Some people believe—they are entitled to do so—in the absolute supremacy of individual rights over the public weal as defined by Parliament or by government, but others believe the contrary. The noble Lord, Lord Hutchinson, and the authors of the think-tank paper regard the denial of trade union membership to persons working at GCHQ as a moral outrage. Those of us who are very concerned with this country's capacity for collecting intelligence which may be of vital importance to our security and to our relations with our allies take an 200 opposite view. We are, I believe, equally entitled to take that view. However, it is assumed by those who hold opposite views to mine that if only a Bill of Rights could be incorporated somehow or other matters would always come out the way they wanted them to be.
The noble Lord, Lord Holme, was undoubtedly right to call our attention to the legislative history of this remarkable document of the European convention. However, at his age the noble Lord would not have had direct memory of the circumstances of the post-war period when this instrument was framed. I doubt whether the late Lord Kilmuir, to whom the noble Lord, Lord Holme, gave credit for much of the authorship of the measure, or his fellow workers at the Council of Europe, really thought they were providing a yardstick which governments, parliaments and judiciaries of democratic countries in the West could live by. What they put on record was what they believed had been the experience of Europe under Nazi rule. They were, in a sense, pledging the countries of Europe to ensure that that did not happen again.
The transformation by the Commission and the court at Strasbourg of that document into something which could make inroads into the domestic lives of people in the initial member countries was, I believe, not forecast at the time. If it had been forecast, it might have led to a somewhat different document. It is undoubtedly desirable that citizens should be protected. Here for once I find myself in agreement with the noble Lord, Lord Hutchinson, in that I believe there are a great many ways in which our legal system is deficient in protecting the interests of all citizens, particularly because of delays and the limitations on legal aid. The latter matter has frequently been referred to in your Lordships' House. None of those crucial questions seems to me to be likely to be dealt with by some case finding its way to a new supreme court or a new supreme commission, or whatever was charged with the British end of litigation.
There may be arguments about the politicisation of the judiciary. On the whole, I go along with the noble Lord, Lord Allen of Abbeydale, in his remarks on that matter. It has not been answered. Anyone who has followed recent events in the United States will know that that can be a difficult question to answer. Quite apart from that and the added complexity and length of litigation, there is the matter of whether in a parliament which has all too little time for tackling issues of this kind, we are not turning our attention to what is in a way a gesture and away from areas where the legal protection of citizens or particular groups of citizens should be a subject of worry. I say "a gesture" because I am not convinced. That is why there is no popular backing as the authors of the policy report suggest.
I doubt whether Britain's record on questions of human rights is regarded as very poor in the light of the set of cases in which its laws have been found deficient by the European Court. If I were contemplating a brush with an agency of government, with the police or with the courts, on the whole my 201 chances of justice would be better in this country than in a number of countries which are signatories to the convention which may well not have a similar list of cases brought against them, possibly because their litigants have not been keen to proceed.
Furthermore, as has been mentioned, there is the question of the cost of taking a case to Strasbourg. However, the cost would not be diminished because, as I understand it, if the convention was incorporated into our law and we had a British court of first instance we could not block a right of appeal so long as we are signatories to the convention. Therefore we would be adding another step, further delay and additional cost for a potential litigant. That is something which those who approve of such a court should consider. It is curious that we should regard it as possible or desirable to treat the genuine problems that exist in such an extraordinarily roundabout way.
No doubt it is true that the late Lord Kilmuir and others from this country played some part in drafting the convention. However, as the noble Lord, Lord Allen of Abbeydale, who knows a great deal about the subject, has said, it is not a document which could be adapted naturally to the writing of a statute. The noble Lord did not go so far as to say so, but he may agree that it has the stamp of the civil law rather than of the common law. If the noble Lord, Lord Holme, had suggested not incorporation in British law—which is a very curious concept—but in Scottish law, that would have been a much more plausible case because Scotland is notorious for its interest and affection for Europe. English common law has got along—the noble Lord, Lord Hutchinson, does not think that it has got along very well, but most people in this country think that it has—on the basis of an existing Bill of Rights (the fruit of our Glorious Revolution), on the basis of Magna Carta and on the basis of the independence of the judiciary, fortified by statute after coming into being as a result of custom.
I refer your Lordships not to another report but to a passage which I read in your Lordships' Library yesterday—I admit that I was not in the Chamber for the New Roads and Street Works Bill. I was reading the memoirs of the Russian dissident Alexander Herzen, who describes two trials in London in the early 1850s. One was the trial of a group of people who had taken part in an illegal duel, and the other of someone accused of complicity in an attempted assassination of the Emperor Napoleon III. He gives a marvellous description of the Lord Justice Campbell, dressed in what he calls a female dressing gown, and a wig which distorted his carriage, and so forth, and the well, beef-fed British jurors. How different it was from what he would have seen at a similar trial on the continent of Europe, on which he had lived. The acquittals or very light sentences delight him. To paraphrase him, he says that though quaint, British justice is still something of which Europe can be proud. That comment might inspire our views on this Motion.
§ 4.25 p.m.
§ Lord McGregor of Durris
My Lords, almost five years ago to the day your Lordships' House debated this issue in connection with a Bill moved by the noble Lord, Lord Broxbourne. The main arguments on both sides were rehearsed. They have been cogently summarised today by my noble friend Lord Holme of Cheltenham, to whom we are all most grateful for giving us the opportunity for this debate. I have nothing to add to what was said in the debate in 1985 and to much of what has been said today. I shall therefore be brief: my purpose is not to argue but to testify.
I accept the analysis of my noble friend Lord Hutchinson of Lullington of the central arguments deployed by the noble Lord, Lord Allen of Abbeydale. The European Convention on Human Rights was the product of a change in international law, described by the late Paul Sieghart in his survey of the dramatic development of human rights in the aftermath of Hitler's war as,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 was the result of the devastating and shameful experience of Nazism, as the noble Lord, Lord Beloff, said. It was the result of the popular clamour for rights to render impossible experiences such as those of the 1930s.
No wonder the noble Lord, Lord Alexander of Weedon, in 1985, when chairman of the Bar Council, observed:The European Convention is a charter for citizens".The extension and enforcement of the convention for the benefit of some 400 million people inhabitating the states which have adhered to it establishes a common citizenship of rights which many regard as a great watershed in the history of European freedom.
We should never forget the vitality and crusading power inherent in the concept of rights. When we last debated the assimilation of the convention into English law in 1985 I ventured the belief: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".—[Official Report, 10/12/85; col. 186.]Two recurring themes of the arguments against the assimilation of the European convention into United Kingdom law as a Bill of Rights are, first, that our system requires Parliament in the end to decide. But we did not need M. Delors to tell us of the uniqueness of Parliament, as our final legislature nowadays wears the pallid look of impending superannuation. As the noble and learned Lord, Lord Hailsham of Saint Marylebone, said a dozen or so years ago in his Richard Dimbleby lecture: 203The 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.A second recurring theme of the arguments against assimilating the convention is that it would change the role of our judges. Our courts play no part in interpreting a convention to which we adhere by treaty and which applies equally to British citizens as to those of other member states. The view, again of the noble and learned Lord, Lord Hailsham, was that assimilation,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?Or, it may be added, the rest of us, who lack immediate access to the remedies provided by the convention which would be given by assimilation.
I prefer to take my chance with the judges in the sure expectation that they will translate the civil law of the convention, to adopt the phrase of the noble Lord, Lord Beloff, into our common law if only they had the opportunity.
§ 4.33 p.m.
§ Lord Harris of Greenwich
My Lords, if I may, I should like to make a few preliminary observations on a matter which is not before us today. This is the first occasion on which I have preceded the noble Lord, Lord Mishcon, when he has not been the Labour Party's spokesman on Home Office affairs. I think it is right, I hope on behalf of the whole House, to refer to the debt that we all owe to the noble Lord, Lord Mishcon, for the work he has performed when representing the Labour Party on Home Office issues. Often we have agreed with him; sometimes we have disagreed with him, and at times quite sharply. Nevertheless I think he has done a duty, sometimes on behalf of the whole House, and we owe him a great debt of gratitude.
§ Lord Harris of Greenwich
My Lords, I turn now to the subject of this debate. My noble friend Lord Holme has dealt with the issues of principle underlying the debate, and I agree with him on the central propositions which he put before the House. The issues I intend to raise this evening cover far narrower territory; namely, the price paid by British litigants before the European Court of Human Rights as a result of the failure of the United Kingdom Government to incorporate the convention into our domestic law.
I accept at once, as I think we all do, that many of the provisions of the convention have no analogy within our own law. There are, for example, few remedies in relation to Article 8, the right to private and family life and correspondence; to Article 10, the right to freedom of expression and to hold, impart and receive opinions and information; and to Article 11, freedom of assembly and freedom of association.
As many Members of the House will be aware, and as I have indicated, the delays involving British 204 litigants are substantial. Those engaged in formulating petitions have to follow a long and complicated process; often our domestic law is silent or insufficiently clear and the petitioners have to institute proceedings in British courts before an application can be made to the European Commission. Then, after the delays which are inevitable there, a petitioner can put his case before the European Court of Human Rights, on the assumption of course that he succeeds before the Commission.
I should like, if I may, to give a few examples of the damage done to many of our fellow citizens because of our failure to incorporate the convention in our domestic law, with the consequence that they cannot ask British courts to deal with their grievances under the terms of the convention. I turn first to the case of Messrs. Webster, Young and James. My noble friend Lord Holme made a passing reference to this extremely important case. I suspect it will be within the recollection of a number of your Lordships that in July 1975 the three railway trade unions reached an agreement with British Rail which provided that henceforth membership of one of the three unions would be a condition of employment.
Between February and June 1976 these three men were dismissed because of their failure to join one of the railway unions. A month later, in July, applications were lodged with the European Commission on Human Rights. On six separate occasions between 1978 and 1979 the British Government, through its representatives, asked for extensions of time to present their case. Three years later the European Commission found against the British Government, and after a further year the British Government succeeded in meeting their fourth time-limit. In August 1981 the European Court found against our Government. It therefore took five years for these men to secure justice: three men thrown out of their jobs because of an agreement between the railway unions and British Rail which was wholly inconsistent with our obligations under the European Convention.
I turn now to the second case, that of Mr. Sidney Golder. In October 1969 Mr. Golder was segregated from other prisoners after a disturbance in one of our prisons. It was alleged that he had assaulted a prison officer—a charge not proceeded with because it was eventually discovered that at the time of the alleged assault he had been in another part of the prison under the control of a group of prison officers. However, Mr. Golder believed that he was denied parole because the false information which suggested that he had assaulted a prison officer had been lodged in his file.
Mr. Golder decided to write to his Member of Parliament and the local chief constable, to draw their attention to his version of the events and the ensuing hardships he had been subjected to as a result of this chain of circumstances. However, the prison governor stopped the letters on the grounds that Mr. Golder had failed to raise the subject matter of the letters through the authorised channels, as at that time required by the prison rules. Subsequently he was refused permission to consult a solicitor with a view to 205 commencing civil proceedings. Once again this case wound its weary way through, first, the European Commission and subsequently the European Court of Human Rights. The total time involved was five years. That was for a man who had been treated deplorably by representatives of the British state.
I come now to the third and most recent example. It is the case of Messrs. Thynne, Wilson and Gunnell. Those men are non-mandatory life sentence prisoners currently in custody. Mr. Thynne has been in prison for 15 years, Mr. Wilson for 18 years and Mr. Gunnell for 25 years. Both Mr. Wilson and Mr. Gunnell were released for a time but were recalled from their periods of licence. That was one of the issues before the European Court of Human Rights.
Perhaps I may concentrate on the case of Mr. Wilson. He first attempted to assert his rights in the British courts. He failed. Eventually he put his application to the Commission in October 1985. The court gave judgment in October of this year, eight years after he had first raised the issue in the courts. What did the European Court of Human Rights decide with regard to those cases? It held that there had been a clear breach of those men's rights under Article 5(4) of the convention. The court took the same view of this matter as did the Select Committee of your Lordships' House on murder and life imprisonment in a report so far, I fear, ignored by the Government. The court took the view that it was wrong for the Executive by itself to take the ultimate decision as to when to release such prisoners. As the Select Committee stated, and the Court of Human Rights has also said, that decision must be made by a tribunal which has the characteristics of a court of law.
I know that we shall be dealing with that issue when the Criminal Justice Bill comes before this House from another place. But can we really tolerate a situation in which the prisoner to whom I have referred—namely, Mr. Wilson—has had to wait eight years for justice, and all because the European convention is not incorporated in British law? If it had been, there is not the slightest doubt that Mr. Wilson, Mr. Thynne, Mr. Webster, Mr. Young, Mr. Golder and all the others would not have experienced such appalling delays in having their cases considered.
I could give a lengthy list of other cases in which similar deplorable delays have taken place for precisely the same reasons. They are cases involving the rights of mental patients under compulsory confinement, judicial birching in the Isle of Man, and the laws of contempt to which my noble friend referred under which a ban was imposed on an article on thalidomide in the Sunday Times.
We have a situation in which, as my noble friend Lord Hutchinson said, 80 United Kingdom laws and regulations have had to be repealed or amended as a result of proceedings under the convention. Yet still there is this last ditch effort by some to prevent incorporation. Many Members of this House, and many outside it, are convinced that far more must be 206 done in this country to buttress the civil rights of our fellow citizens. The first essential step on that road is to incorporate the convention into our domestic law.
§ 4.45 p.m.
§ Lord Mishcon
My Lords, perhaps I may first thank the noble Lord, Lord Harris of Greenwich, for the very gracious remarks that he made. I appreciate them.
In thanking the noble Lord, Lord Holme of Cheltenham, perhaps I may say that in the streets of Cheltenham at the moment the cry of human rights is not quite irrelevant. I thank the noble Lord, I believe on behalf of your Lordships, for introducing the Motion in such an eloquent way. The noble Lord, Lord Hutchinson of Lullington, has a vigorous sincerity matched only by the vigour of his speech. He asked me if I would see the light. If on grounds of personal safety I do not wish to tread the road of Damascus at this moment I know that your Lordships will understand.
However, I certainly will revert to what I believe to be my party's view on the subject matter that we have been discussing so interestingly this afternoon. To say that this House, or any part of it, is in favour of human rights and progressing them as much as possible is the equivalent of saying that this House is in favour of justice, goodness and righteousness. There is no section in your Lordships' House or in another place that would not immediately advocate the protection of human rights. The question that your Lordships have to answer, as I see it, is how best to do that. Does one do so by incorporating the convention into our law?
It is a strange but interesting exercise to ask why our country has never been tempted to enter into a written constitution. With his usual eloquence, the noble Lord, Lord Beloff, with his great knowledge of history, referred as though in similar terms to the matter that we were discussing this afternoon, to Magna Charta, and a Bill of Rights, a celebration of which we had last year by way of a tercentenary. Magna Charta of course represents an argument between the barons and the king, not the citizen and the king. The Bill of Rights was a matter between Parliament and the king, not the citizen and the king or the citizen and Parliament.
This afternoon we are considering the question of individual human rights, and the best way of protecting and enforcing them. I revert to this question: why have we not yielded to the temptation, if temptation it be, of a written constitution? Historians have tried to answer that question in modern times. At least one of them came to the conclusion that it was because we have had no really violent change in our history ever since the successful invasion of these shores in 1066. By the grace of God there has been no repetition of that. Of course there had been a brief period of a commonwealth but there was a reversion to the monarchical system—modified as it may have been—which had preceded the commonwealth.
207 Because one finds that in the United States and France a violent change was followed by the need for a constitution, those countries have one. When we gave freedom to those who had been in our empire, who were starting an entirely new era in their history with an entirely new system of government, we ensured that they too had a constitution. Before one embodies a written code into our legislation, one has to ensure that it does not have the looseness, the argumentative creation, and the lack of clarity of some constitutions.
That is necessary from the point of view of our tradition. The subject has been raised in the debate but in a way which differed slightly from the way in which I propose to deal with it. If our courts have jurisdiction to interpret a law and to penalise people who break it, it is with our worthwhile tradition that the law is clear, precise and our judges can interpret it easily. Without creating law, they are declaring what already is the law.
The noble Lord, Lord Allen of Abbeydale, spoke of political connotations. I paraphrase because that may not have been his exact phrase—
§ Lord Mishcon
My Lords, I made a note of the phrase that the noble Lord used: it was "political overtones". I am not referring to political overtones but to political decisions. The noble Lord, Lord Allen of Abbeydale, was right in quoting to your Lordships Article 8 of the convention. At this moment your Lordships must appoint yourselves as judges. In this context you have not to be lawyers in order that you may decide matters. The article states:There shall be no interference by a public authority with the exercise of this right".The right is to respect for private and family life, home and correspondence. The article continues:except such as is in accordance with the law and is necessary in a democratic society".Is that a political or judicial decision? If I ask your Lordships as judges to interpret what you feel ought to be in a democratic society, am I asking you for a legal definition or interpretation or for a political answer to a political question? The article continues:in the interests of national security, public safety",and I suppose that there could be evidence of that from the Ministries of Defence and Transport and the Home Office,or the economic well-being of the country".In our adversarial way of conducting proceedings in court, is that an issue that judges should be called upon to decide? Are these not political matters for a political body? Have we not Parliament to deal with them? Is it so wrong that we have the sovereignty of Parliament? We have done pretty well with it so far in regard to the freedom of our subjects, even though there may be gaps. If there are gaps, what is the best way of dealing with the situation—
§ Lord Hutchinson of Lullington
My Lords, looking at Article 8, is the noble Lord's case that he would prefer the Executive to come to court and say, "That 208 is in the interests of national security", and the court would have to accept that; or for the court to decide, "Well, we hear that but is it necessary in a democratic society?"
§ Lord Mishcon
My Lords, I can answer that question very well. I should hope that, in dealing with national security in a court that is open to the public and to visitors from abroad, we should not have the Ministry of Defence arguing that a matter is in the interests of national security and giving reasons, a counsel for the other party arguing that in his view it is not in the interests of national security and the judge having to decide what is in the interests of national security. I stand by that and by precisely the same argument as regards economic well being.
I answer the argument put forward by the noble Lord, Lord Hutchinson of Lullington, by asking the question: what is my party standing for in this matter? Is it that we too are among those who have no regard for the freedom of the subject and human rights? I do not endeavour to enter into a competition, but I believe that my party has been standing up for human rights and those citizens who are not often able to speak for themselves. I am proud of that tradition. I do not deny that other parties have also participated in the fight for freedom and human rights but my party's tradition is very proud.
If, as was said by the noble Lord, Lord Harris, there are cases where human rights are not protected according to the law of our land and we must go to Strasbourg or to a convention to argue the matter, what is Parliament doing by not legislating in the clearest possible terms in regard to such matters? Are we incapable of doing so? With our long history, must we go to Strasbourg for a lesson? There are areas, and we all know them, where there is a gap in our law. My party—
§ Lord Hailsham of Saint Marylebone
My Lords, I am sorry to interrupt the noble Lord. Does he recall that when the Government of which he was a distinguished supporter legislated in the Webster case I warned the House—and I was contradicted from the Woolsack —that there was a breach of the human rights convention at the time the matter was being debated here? We were beaten down.
§ Lord Mishcon
My Lords, I always regret the noble and learned Lord being beaten down. There have been only a few occasions during his lifetime when that has happened. If we were responsible for one of them we made an interesting chapter in his biography.
I was saying that there are gaps in our law in regard to human rights and we on this sidle of the House know of them. There are issues of safeguarding privacy, the security powers in our land and protecting human rights in many directions. We have said that we shall produce a freedom of information Bill. We have said that by legislation we shall protect private rights from intrusion. There are also other areas for consideration. All I ask of your Lordships is to give my party the power to introduce those Bills before you. I know that they will have your Lordships' support.
§ 4.58 p.m.
§ Lord Reay
My Lords, I am grateful to the noble Lord, Lord Holme of Cheltenham, for raising what has proved to be a worthwhile topic for debate. He expounded his case with ability, clarity and fairness. We have heard many important contributions. I agree with some of the points made by the noble Lord; in particular that the subject should not be monopolised by lawyers. I hope that in the time available I shall be able to touch on most of the points which noble Lords raised.
The Government are firm believers in and supporters of the European Convention on Human Rights. Let there be no doubt about that. Now that we have just celebrated the 40th anniversary of the opening for signature of the convention, we see that these basic rights have stood the test of time.
Since the UK ratified the convention, there has been debate over the years as to whether we should incorporate its provisions in our domestic law. The Select Committee on a Bill of Rights of your Lordships' House which sat in 1977 and 1978 concluded that in any country, whatever its constitution, the existence or absence of legislation in the nature of a Bill of Rights can in practice play only a minor part in the protection of human rights. The committee also concluded that it had received no evidence that human rights were better protected in countries which had a code of basic rights embodied in their law than they were in the United Kingdom. I see no reason to think that matters have changed in the interim.
Nevertheless, we must recognise that there is criticism of the fact that we have not incorporated the European convention on the grounds that there have been a number of unfavourable judgments against us in Strasbourg. However, that needs to be put in context.
We have heard it said that we compare unfavourably with other countries when the ECHR league table, as it were, is consulted. Statistics in this field can give a false impression; for example, of the 26 court findings of violations by the UK five concerned similar child care cases heard simultaneously. Moreover, there is no distinction between major and minor violations and there have been cases in which the UK has been vindicated in respect of the major issue, although a finding is recorded against us on a minor subsidiary point. I should add also that our record in providing a remedy is a good one and violations have been recorded against us even though we have subsequently changed the law.
In relation to decisions of the court, one has to recognise that the statistics take no account of when a country accepted the right of individual petition. The UK accepted the right of individual petition since 1966, whereas a number of other countries have accepted it much more recently; for example, France and Spain in 1981 and Turkey in 1986. Since, in addition, it can take five or six years for an application to be decided by the court or Committee of Ministers, it is not surprising that fewer violations have been 210 found in the case of those countries. We regard as fallacious, therefore, the argument that breaches against the United Kingdom demonstrate the need for incorporation and would argue that we have a good record overall.
It has been suggested that Parliament can no longer adequately protect our citizens and that as government activity increases in complexity, the need for protection is all the greater, but afforded all the less. But we consider incorporation of the convention into domestic law would not bring the advantages claimed.
It is the Government's firm view that imposing on the judges a duty to interpret the convention would add a new and undesirable dimension to their current role. That new role would be to decide broad issues of policy. The more we draw judges into political matters, the more shall we impinge on the constitutional concept of the political neutrality of the judges in terms of the general public's perception of them.
It is worth reminding ourselves that in respect of judicial review, which was raised by the noble Lord, Lord Hutchinson of Lullington, the grounds of challenge do not extend to the merits of the action under challenge. In judicial review the courts do not seek to substitute their view for that of the Government on such matters as national security and the public interest. The courts are concerned with the procedure whereby the act in question was taken, not the action itself.
I mentioned the judges' role in judicial review simply to emphasise that those who say that requiring them to interpret the convention would introduce no radical change are, in our view, being unduly optimistic.
I do not doubt for one moment that British judges would be far better placed than those in Strasbourg to decide what does and does not comply with the convention in the British context. But that is not the point. The point is that at present judges are charged with interpreting and applying the will of Parliament as set down in precisely drafted statute law. Interpreting the principles set down in the convention would be an entirely different matter, and would involve the weighing of policy issues and conclusions being reached on the basis of the judges' perceptions of the public interest.
As the noble Lord, Lord Allen of Abbeydale, said—and I hope that I have better luck than the noble Lord, Lord Mishcon, in finding the exact words which the noble Lord used—judges would tend to become embroiled in political issues and, like the noble Lord, I should find it hard to take the judicial encroachment on our traditional procedures.
The commission and court have tended to construe the various articles in the light of political, social and ethical developments in Europe. This approach has meant that the court and Committee of Ministers have, on occasion, reached decisions which would have been quite unforeseen at the time of our signature and ratification. For example, it was determined in Strasbourg that not only did prisoners 211 have a right to marry provided for in the UK, but that they also had a right to marry within prison itself. To meet this judgment, an amendment to our marriage law was necessary and enacted. We have to ask ourselves whether the judiciary in the United Kingdom might not also adopt a similarly dynamic approach, based on political and other considerations, if faced with interpretation of such broadly defined principles.
Another disadvantage of the proposal to incorporate the convention into domestic law is that it would introduce a significant element of uncertainty into the law. Strasbourg, in finding against us, cannot strike down our law. The court and Committee of Ministers create no vacuum and time is given to reflect and make changes, if Parliament agrees.
Incorporation of the convention would be a recipe for muddle and confusion. We might well find ourselves facing a scenario such as this: Parliament passes a law, without reserved provision, which it fully believed to conform to the convention. Next day, or next year, this law could be struck down by a judge who, acting in good faith, took a different view according to his perceptions of the public interest. The judgment would have immediate effect which in turn could have urgent and significant administrative implications. I suggest this would impose an unpredictable burden on Parliament. If, for example, the law concerned entry to the UK, there would be enormous problems attendant thereafter on the operation of entry control procedures while a new law was being prepared.
A number of points were raised to which I should like to refer. I do not believe that I was asked any specific questions although perhaps the noble Lord, Lord Hutchinson of Lullington, asked me some rhetorical questions.
The noble Lord, Lord Holme, made the point that most other countries have incorporated the provisions of the convention without difficulty. He asked, therefore, why we could not do that. The answer is that we do not have a written constitution although, unlike the noble Lord, Lord Holme, I do not find that to be an embarrassment. Rights exist under common law in this country unless taken away by statute. Thus, an Englishman's home is his castle unless Parliament gives power to the police or others to enter it. To introduce conferred rights into our present system by way of a written constitution could have effects which are not readily apparent. The same problems do not necessarily arise in other countries which have written constitutions and the need to confer rights. Therefore, for them it is far less of a departure from tradition to incorporate the convention.
As regards doing something different from that which other Eastern countries may be about to do, Czechoslovakia, Hungary and Poland would be amazed if they were told that we in this country wished to adapt our traditional practices to fit in with whatever they choose to do now. Surely they are in the position of wanting to learn from us and to select what 212 they want from our constitutional arrangements rather than the other way round, now that they have emerged from the dark night of communist tyranny.
My noble friend Lord Campbell of Alloway suggested that it may be possible to establish a commission to deal specifically with complaints regarding breaches of human rights. I wonder if we really need that in addition to our domestic courts—leading up to the House of Lords—and the European Commission—leading up to the European Court. All those remedies are available whether or not we incorporate the convention.
I agree with the basic tenor of the speech of the noble Lord, Lord Allen of Abbeydale. He referred to the exceptions set out in Article 8 of the convention. I agree that it should not be for the courts to determine matters of public policy or the public interest. As I indicated earlier, I agree that the political arena is not the place for judges.
The noble Lord, Lord Hutchinson, said that in his view the independent selection and training of judges is the best guarantee that they will continue to command public respect and confidence, even if we incorporate the convention. I suggest that one only needs to look to the United States to realise that a time may soon come when a judge's political neutrality is something that may be called into question. It is apparent that in the United States the most important criteria for appointment to the Supreme Court are the candidate's social and political views.
I cannot accept the characterisation by the noble Lord, Lord Hutchinson, of my right honourable friend the former Prime Minister's Government as authoritarian and anti-libertarian. On the contrary, during the terms of office of my right honourable friend the former Prime Minister the Government acted in many areas to strengthen and extend individual liberties. I can give a few examples such as the Sex Discrimination Act 1975, the Equal Pay Act 1970, the Data Protection Act 1984. There are also other examples.
§ Lord Harris of Greenwich
My Lords, I obviously misheard what the Minister said. Did he suggest that the Sex Discrimination Act 1975 was the responsibility of the present Administration? That would be mildly surprising, but it may be that I misheard what he said.
§ Lord Reay
My Lords, it would be plainly incorrect for me to say that. I mentioned the Equal Pay Act and the Data Protection Act. There are others such as the Police and Criminal Evidence Act. Those are not indications or the product of an authoritarian government.
§ Lord Mishcon
My Lords, perhaps the Minister will accept from this side of the House that we do not intend to propose a ministerial discrimination.
§ Lord Reay
My Lords, I am grateful to the noble Lord for that assurance.
213 My noble friend Lord Beloff pointed out that incorporation would not be a panacea, and that as the right of individual petition would remain, litigating matters in British courts first would only add to the length of time it would take for an eventual decision to be reached in Strasbourg.
That brings me to the point raised by the noble Lord, Lord Harris, and others relating to the length of time, which they deplored, before decisions in Strasbourg can be heard. The noble Lord, Lord Hutchinson, also referred to the long five-year trek, as he put it, to Strasbourg. I assure noble Lords that discussions are currently taking place in the Council of Europe regarding the splitting up of the Strasbourg machinery. That is something in which we are very much involved.
However, it should not be thought that incorporation will obviate the necessity of providing for the individual right of petition to Strasbourg if applicants are not satisfied by the interpretation which judges in the United Kingdom place on the incorporation provisions. They would still have the right to apply to the Commission and that would lengthen the procedure which exists rather than shorten it.
The noble Lord, Lord Harris, referred to the case of the closed shop. I do not want to comment in any detail on specific cases that he raised, save to say that the Government have further extended individual freedom by giving ordinary trade union members the right to be balloted before industrial action.
The noble Lord, Lord McGregor of Durris, argued that if we accepted the Treaty of Rome provisions as part of our law, we should also accept the provisions of the European Convention on Human Rights. My answer is that the Treaty of Rome contains specific provisions. Those which have direct application are drafted in specific terms which would leave limited scope for different interpretation. On the other hand, the European convention sets out a set of principles in general terms. That leaves much scope for interpretation, as illustrated by the differences that arise even between the Commission and the court.
I do not agree with the noble Lord, Lord Harris, that I and others who argued in the same way are making a last ditch effort to prevent incorporation. I do not believe it is as imminent as the use of that term implies. There is no evidence that the public seek a written constitution. There is no great clamour for change, as my noble friend Lord Beloff pointed out. Over the years and centuries we have evolved a stable constitutional system second to none. It depends on delicate checks and balances. If the price of incorporation is a threat to the impartial independence of the judiciary and the ordinary working of the legislature, then I submit that that price is too high.
§ 5.15 p.m.
§ Lord Holme of Cheltenham
My Lords, this has been a very worth while debate, and I shall not detain the House for more than a moment. I do not propose to respond to the many interesting points raised in the course of the debate. However, I should like to thank 214 the Minister for the care of his summing-up, as I should like to thank the noble Lord, Lord Mishcon, for the cogency of his summing-up. It is interesting how, by different routes, they ended up on the common ground of constitutional conservatism and institutional inertia—I am sure that they will not mind my saying that—and very well done, too.
I should like equally to thank my noble friends Lord Hutchinson of Lullington, Lord McGregor of Durris and Lord Harris of Greenwich for the eloquence of their support, and the noble Lord, Lord Campbell, for his fated but gallant attempt to find common ground in the House on this issue. I thank also the noble Lord, Lord Allen, for his careful judiciousness on an issue in which in many ways he played a prominent role over the years.
I should like to pay particular tribute to the noble Lord, Lord Beloff, for the trenchancy of his intervention. He seemed at times to positively prefer the prospect of people rioting in the streets before we contemplated reform. I prefer reform to revolution. I particularly enjoyed his exposition of the virtues of intelligence as compared with the vices of intelligentsia. I found myself wondering whether one needs to have been a vice-chancellor to make distinctions of such subtlety.
The issues of the Bill of Rights and the incorporation of the European Convention will not go away. I believe that this afternoon your Lordships performed a public service in raising those issues again. I beg leave to withdraw the motion.
Motion, by leave, withdrawn.