§ 3.14 p.m.
§ The Lord Chancellor (Lord Irvine of Lairg)
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 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.
I beg to move that this Bill be now read a second time. I am sure that the whole House looks forward to the maiden speech of the noble Baroness, Lady Amos, in this debate. I am delighted that she, a former chief executive of the Equal Opportunities Commission, has chosen this occasion for what I am sure will be a distinguished début.
I chair many Cabinet committees, but none that has given me greater satisfaction than the committee whose labours have brought this Bill forward in the first legislative Session. It occupies a central position in our integrated programme for constitutional change. It will allow British judges for the first time to make their own distinctive contribution to the development of human rights in Europe. It is today a happy reflection that British jurisprudence will shortly flow into an inspired modern building, the European Court of Human Rights in Strasbourg. The architect chosen after an international competition is that great British architect, Richard Rogers, my noble friend Lord Rogers of Riverside, who recently took his place on the Government Benches.
I look forward especially to the contribution today of the noble Lord, Lord Lester of Herne Hill. His major role in the development of the anti-discrimination legislation of the 1970s under the future Lord Jenkins of Hillhead is well known. I should also acknowledge from this position, as did the White Paper, that he has perhaps for 30 years been a tireless campaigner for legislation on human rights. His has not been a silent but an eloquent vigil, and his day has now almost arrived.
It is also a great pleasure to see the noble and learned Lord, Lord Scarman, in his place today and to note that he is to speak in the debate. He has an even longer record of distinguished advocacy on human rights legislation than that of the noble Lord, Lord Lester of Herne Hill.
This is a Government who see Britain's future as a strong and leading participant in the Council of Europe and the European Union. This Bill is further evidence of that. It was not edifying to begin Friday, 24th October by hearing the shadow Home Secretary, Sir Brian Mawhinney, on the "Today" programme railing at 1228 judges from Albania and Bulgaria sitting with other judges in the European Court to determine human rights. I acquit the noble Lord, Lord Kingsland, of any xenophobia. He is incapable of it. I know that when he speaks in support of this Bill he speaks strongly for himself. I doubt, however, whether he speaks for his party. Tory policy before the election was clear: outright rejection of the case for incorporation. From the mouth of the then Prime Minister we had this miracle of sapience:We have no need of a Bill of Rights because we have freedom".My Lords, what enervating insularity—and what nonsense!
The traditional freedom of the individual under an unwritten constitution to do himself that which is not prohibited by law gives no protection from misuse of power by the state, nor any protection from acts or omissions of public bodies which harm individuals in a way that is incompatible with their human rights under the convention. Our legal system has been unable to protect people in the 50 cases in which the European Court has found a violation of the convention by the United Kingdom. That is more than any other country except Italy. The trend has been upwards. Over half the violations have been found since 1990. I have no doubt that with his distinguished European background the noble Lord, Lord Kingsland, will reject as absurd the proposition that because we have liberty, we have no need of human rights. This is a Home Office Bill. I invite the noble Lord, Lord Kingsland, to define in his speech what is the policy, what is the position in principle, of the Shadow Home Secretary and of the Conservative Party on this Bill.
This Bill will bring human rights home. People will be able to argue for their rights and claim their remedies under the convention in any court or tribunal in the United Kingdom. Our courts will develop human rights throughout society. A culture of awareness of human rights will develop. Before Second Reading of any Bill the responsible Minister will make a statement that the Bill is or is not compatible with convention rights. So there will have to be close scrutiny of the human rights implications of all legislation before it goes forward. Our standing will rise internationally. The protection of human rights at home gives credibility to our foreign policy to advance the cause of human rights around the world.
Our critics say the Bill will cede powers to Europe, will politicise the judiciary and will diminish parliamentary sovereignty. We are not ceding new powers to Europe. The United Kingdom already accepts that Strasbourg rulings bind. Next, the Bill is carefully drafted and designed to respect our traditional understanding of the separation of powers. It does so intellectually convincingly and, if I may express my high regard for the parliamentary draftsman, elegantly.
The design of the Bill is to give the courts as much space as possible to protect human rights, short of a power to set aside or ignore Acts of Parliament. In the very rare cases where the higher courts will find it impossible to read and give effect to any statute in a way which is compatible with convention rights, they 1229 will be able to make a declaration of incompatibility Then it is for Parliament to decide whether there should be remedial legislation. Parliament may, not must, and generally will, legislate. If a Minister's prior assessment of compatibility (under Clause 19) is subsequently found by declaration of incompatibility by the courts to have been mistaken, it is hard to see how a Minister could withhold remedial action. There is a fast-track route for Ministers to take remedial action by order. But the remedial action will not retrospectively make unlawful an act which was a lawful act—lawful since sanctioned by statute. This is the logic of the design of the Bill. It maximises the protection of human rights without trespassing on parliamentary sovereignty.
Before I turn to the detail of the Bill, I am determined to address concerns that have recently been expressed by the press. First, the Government are not introducing a privacy statute. They have resisted demands that they should. They believe that strong and effective self-regulation is the best way forward in the interests of both the press and the public. It is well known, and deserves to be better known, that the noble Lord, Lord Wakeham, the Chairman of the Press Complaints Commission, with which I was myself associated until May as a member of the appointments commission which appoints its members, has begun the necessary work of strengthening self-regulation. Although much remains to be done, there have already been significant improvements which are as welcome to government as to the wider public. We look forward to the noble Lord's good work continuing and prospering. It is strong and effective self-regulation if it—and I emphasise the "if'—provides adequate remedies which will keep these cases away from the courts.
I want, however, to address directly the concerns of the press about how the courts will deal with Article 10 (freedom of expression, a central part of which is freedom of the press) and Article 8 (privacy) once the convention is incorporated. I am a strong upholder of the freedom of the press; and I am a member of a Government who, as a whole, give the highest value to upholding the freedom of the press. The European Court has in terms declared that Article 10,constitutes one of the essential foundations of a democratic society".The Court is hostile to any attempt to restrict press freedom when the complainant is a public figure. Our highest courts have said the same. In 1990 the noble and learned Lord, Lord Bridge, said:In a free democratic society it is almost too obvious to need stating that those who hold office in Government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship".In 1990 the noble and learned Lord, Lord Goff, declared that in the field of freedom of speech there was no difference in principle between English law and Article 10. In 1993 the noble and learned Lord, Lord Keith, stated uncompromisingly:It is of the highest—I emphasise—the highest—public importance that … any Governmental body should be open to uninhibited public criticism".1230 The European Court in 1991 in Sunday Times v. The UK (No 2)—the Spycatcher case—declared:the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned for news is a perishable commodity and to delay its publication even for a short period—and I emphasise 'even for a short period'—may well deprive it of all its value and interests".I agree with that and so, I believe, does every British judge.
I say as strongly as I can to the press: "I understand your concerns, but let me assure you that press freedom will be in safe hands with our British judges and with the judges of the European Court". I add this, "You know that, regardless of incorporation, the judges are very likely to develop a common law right of privacy themselves. What I say is that any law of privacy will be a better law after incorporation, because the judges will have to balance Article 10 and Article 8, giving Article 10 its due high value".
More practically, I do not envisage the press going down to late Friday or Saturday privacy injunctions, disruptive of publishing timetables, if the press has solid grounds for maintaining that there is a public interest in publishing. The doors of my officials and of my right honourable friend the Home Secretary have been open throughout the summer to anyone interested to discuss the practical implications of incorporation. There were many who walked through our doors. They remain open. I say emphatically to editors and media lawyers, interested to discuss with us appropriate arrangements for handling these cases, where self-regulation has failed to nip them in the bud, "You are welcome to come and make your views known to us".
I now turn to the detail of the Bill. Clause 1 lists the convention rights that are to be given further effect in the United Kingdom by the Bill. They range from the right to a fair trial to the right to life itself; and they are all fundamental human rights. The text is set out in Schedule 1 to the Bill. Also, Clause 1 makes it possible for the rights contained in other protocols to be added to the Bill if the United Kingdom becomes a party to them in future.
Clause 2 requires courts in the United Kingdom to take account of the decisions of the convention institutions in Strasbourg in their consideration of convention points which come before them. It is entirely appropriate that our courts should draw on the wealth of existing jurisprudence on the convention.
Clauses 3 to 5 are concerned with the relationship between the convention rights and other legislation. Clause 3 provides that legislation, whenever enacted, must as far as possible be read and given effect in a way which is compatible with the convention rights. This will ensure that, if it is possible to interpret a statute in two ways—one compatible with the convention and one not—the courts will always choose the interpretation which is compatible. In practice, this will prove a strong form of incorporation.
As I have said, however, the Bill does not allow the courts to set aside or ignore Acts of Parliament. Clause 3 preserves the effect of primary legislation which is 1231 incompatible with the convention. It does the same for secondary legislation where it is inevitably incompatible because of the terms of the parent statute.
Clause 4 provides for the rare cases where the courts may have to make declarations of incompatibility. Such declarations are serious. That is why Clause 5 gives the Crown the right to have notice of any case where a court is considering making a declaration of incompatibility and the right to be joined as a party to the proceedings, so that it can make representations on the point.
A declaration of incompatibility will not itself change the law. The statute will continue to apply despite its incompatibility. But the declaration is very likely to prompt the Government and Parliament to respond.
In the normal course of events, it would be necessary to await a suitable opportunity to introduce primary legislation to make an appropriate amendment. That could involve unacceptable delay when Parliamentary timetables are crowded. We have taken the view that if legislation has been declared incompatible, a prompt parliamentary remedy should be available. Clauses 10 to 12 of the Bill provide how that is to be achieved. A Minister of the Crown will be able to make what is to be known as a remedial order. The order will be available in response to a declaration of incompatibility by the higher courts. It will also be available if legislation appears to a Minister to be incompatible because of a finding by the European Court of Human Rights.
We recognise that a power to amend primary legislation by means of a statutory instrument is not a power to be conferred or exercised lightly. Those clauses therefore place a number of procedural and other restrictions on its use. First, a remedial order must be approved by both Houses of Parliament. That will normally require it to be laid in draft and subject to the affirmative resolution procedure before it takes effect. In urgent cases, it will be possible to make the order without it being approved in that way, but even then it will cease to have effect after 40 days unless it is approved by Parliament. So we have built in as much parliamentary scrutiny as possible.
In addition, the power to make a remedial order may be used only to remove an incompatibility or a possible incompatibility between legislation and the convention. It may therefore be used only to protect human rights, not to infringe them. And the Bill also specifically provides that no person is to be guilty of a criminal offence solely as a result of any retrospective effect of a remedial order.
So far I have spoken about the relationship between the convention rights and legislation and about what happens if they cannot be reconciled. That is only the first way in which the Bill brings rights home. On its own that would be insufficient. I turn now to the second way, which is in Clauses 6 to 9. Clause 6 makes it unlawful for a public authority to act in a way which incompatible with the convention. Before I explain what that means in practice, I should say something about our approach to the application of this Bill to public authorities. We decided, first of all, that a provision of this kind should apply only to public authorities, 1232 however defined, and not to private individuals. That reflects the arrangements for taking cases to the convention institutions in Strasbourg. The convention had its origins in a desire to protect people from the misuse of power by the state, rather than from the actions of privste individuals. Someone who takes a case to Strasbourg is proceeding against the United Kingdom Government, rather than against a private individual. We also decided that we should apply the Bill to a wide rather than a narrow range of public authorities, so as to provide as much protection as possible to those who claim that their rights have been infringed.
Clause 6 is designed to apply not only to obvious public authorities such as government departments and the police, but also to bodies which are public in certain respects but not others. Organisations of this kind will be liable under Clause 6 of the Bill for any of their acts, unless the act is of a private nature. Finally, Clause 6 does not impose a liability on organisations which have no public functions at all.
If people believe that their convention rights have been infringed by a public authority, what can they do about it? Under Clause 7 they will be able to rely on convention points in any legal proceedings involving a public authority; for example as part of a defence to criminal or civil proceedings, or when acting as plaintiff in civil proceedings, or in seeking judicial review, or on appeal. They will also be able to bring proceedings against public authorities purely on convention grounds even if no other cause of action is open to them.
If a court or tribunal finds that a public authority has acted in a way which is incompatible with the convention, what can it do about it? Under Clause 8 it may provide whatever remedy is available to it and which seems just and appropriate. That might include awarding damages against the public authority. We have concluded that if a court is considering an award of damages for an act which is incompatible with the convention, then it should have regard to the principles applied by the European Court of Human Rights. Our aim is that people should receive damages equivalent to what they would have obtained had they taken their case to Strasbourg.
Clause 9 is concerned with what happens when a court or tribunal acts in a way which is incompatible with the convention. Here we have preserved the existing principle of judicial immunity and have provided that proceedings against a court or tribunal on convention grounds may be brought only by an appeal or application for judicial review. I have spoken at some length about the two main ways in which the Bill brings right home. I now deal more briefly with the other provisions of the Bill.
Clauses 14 to 17 are concerned with derogations from, and reservations to, articles of the convention. The United Kingdom has one derogation and one reservation in place, relating to Article 5(3) of the convention and Article 2 of the first protocol, respectively, and those articles have effect subject to them. The text of the derogation and reservation is set out in Schedule 2 to the Bill. They will have domestic effect in accordance with the provisions of the Bill. Any future derogation 1233 and reservations may also be given domestic effect under the Bill. For domestic purposes they will be subject to periodic renewal in the case of derogation, or review in the case of reservations.
Clause 18 stands apart from the other provisions of the Bill. It is concerned with the appointment of judges to the European Court of Human Rights. That Court is being reconstituted next year as a new permanent Court and one of its member judges will come from the United Kingdom. In drawing up nominations for that post, we want to be able to select from a wide field of suitably qualified candidates. One disincentive which might discourage some potential candidates from coming forward is that sitting full-time as a judge at Strasbourg would be incompatible with performing the duties of a judge in the United Kingdom. Under our present law, a judge would have to resign his office here in order to take up the appointment at Strasbourg, with no guarantee of reinstatement at the end of the term of office. Clause 18 is designed to remove that obstacle, so that if a judge is appointed to the European Court he will have the right to return to the bench in the United Kingdom after his term at Strasbourg.
Clause 19 imposes a new requirement on government Ministers when introducing legislation. In future, they will have to make a statement either that the provisions of the legislation are compatible with the convention or that they cannot make such a statement but nevertheless wish Parliament to proceed to consider the Bill. Ministers will obviously want to make a positive statement whenever possible. That requirement should therefore have a significant impact on the scrutiny of draft legislation within government. Where such a statement cannot be made, parliamentary scrutiny of the Bill would be intense.
Finally, Clauses 20 to 22 are concerned with various supplemental provisions with which I need not detain the House.
Lastly, the Bill does not provide for the establishment of a human rights commission. I appreciate that this will cause disappointment to some. It is suggested that a commission would have a useful role to play in promoting human rights and advising individuals how to proceed if they believe their rights have been infringed. Although we have given this proposal much thought, we have concluded that a human rights commission is not central to our main task today, which is to incorporate the convention as promised in our election manifesto. There are questions to be resolved about the relationship of a new commission with other bodies in the human rights field; for example, the Equal Opportunities Commission and the Commission for Racial Equality. Would a human rights commission take over their responsibilities, or act in partnership with them, or be an independent body independent of them? We would also want to be sure that the potential benefits of a human rights commission were sufficient to justify establishing and funding for a new non-governmental organisation. We do not rule out a human rights commission in future, but our judgment is that it would be premature to provide for one now.
1234 We have, however, given very positive thought to the possibility of a parliamentary committee on human rights. This is not in the Bill itself because it would not require legislation to establish and because it would in any case be the responsibility of Parliament rather than the Government. But we are attracted to the idea of a parliamentary committee on human rights, whether a separate committee of each House or a joint committee of both Houses. It would be a natural focus for the increased interest in human rights issues which Parliament will inevitably take when we have brought rights home. It could, for example, not only keep the protection of human rights under review, but could also be in the forefront of public education and consultation on human rights. It could receive written submissions and hold public hearings at a number of locations across the country. It could be in the van of the promotion of a human rights culture across the country.
I have tried to explain why the Government want to bring rights home and how we propose to do it. This Bill represents a major plank in our programme for constitutional change and invigoration. I have for many years been downcast by the want of protection for human rights in the United Kingdom. In a democracy it is right that the majority should govern. But that is precisely why it is also right that the human rights of individuals and minorities should be protected by law.
I am convinced that incorporation of the European convention into our domestic law will deliver a modern reconciliation of the inevitable tension between the democratic right of the majority to exercise political power and the democratic need of individuals and minorities to have their human rights secured. I commend this Bill to the House and look forward to the whole of our debate today.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 3.44 p.m.
§ Lord Kingsland
My Lords, I congratulate the noble and learned Lord the Lord Chancellor on furnishing us in his Bill with so many ingenious solutions to what seemed to be a range of intractable problems. I join him in congratulating the parliamentary draftsmen; it is a masterly exhibition of their art.
Her Majesty's loyal Opposition will not be voting against the Bill on Second Reading. Irrespective of the success or failure of our amendments thereafter, we will not vote against the Bill on Third Reading. As the Bill was foreshadowed in the manifesto, we are bound by the Salisbury Convention.
If the Bill becomes law it will be a defining moment in the life of our constitution. Perhaps the only other examples this century of such defining moments were the passage of the Parliament Acts of 1911 and 1949. As your Lordships are acutely aware, they had a dramatic effect on the balance of power between your Lordships' House and another place.
If this Bill reaches the statute book it will have an equally defining influence on the balance of power between the legislature and the judiciary. Whatever the inherent merits of its contents, I hope that your 1235 Lordships, in formulating your amendments, will be aware of how deep are the implications for that relationship. They lie at the heart of the doctrine of the separation of powers in our constitution, which has been the hallmark of our liberties throughout the centuries.
I am very proud of the fact that a Conservative predecessor of the noble and learned Lord—Sir David Maxwell Fyfe, as he then was, and subsequently Lord Kilmuir—had a greater influence on the shape of the convention than probably any other British politician. Indeed, were it not for the support which Mr. Winston Churchill, as he then was, gave to the terms of the convention, Mr. Attlee might never have got it through his Cabinet, opposed as it was so profoundly by the then Lord Chancellor, Lord Jowitt. Therefore, on behalf of my party, I make no apologies for what is contained in that convention; we support its terms wholeheartedly.
I shall not speak at great length on this matter. I know that your Lordships are anxious to hear the noble Lord, Lord Lester, whose determination and imagination have done more to see the Bill appear in this House today than any other single person. I am also delighted to see here present the noble and learned Lord, Lord Scarman, with whom I first discussed the terms of such incorporation in the elegant dining room of a fine sailing club in Cowes more than a decade ago.
There are many obvious reasons for wanting incorporation. Many people believe it hypocritical that we send our citizens to Strasbourg to obtain rights to which they are not entitled at home. We know that the convention is judge-driven and we often find that the judges in the court in Strasbourg—brilliant and well-meaning lawyers though they are—lack an understanding of our constitutional ways which are, after all, unique.
Furthermore, the number of countries which have become part of the convention has expanded rapidly in recent years. Often the senior judges from those countries who will sit in Strasbourg have little experience of the jurisprudence of a free society. Until recently the jurisprudence in their countries has frequently been rubber stamping an order of the local commissar. The man behind the guichet was the man who counted. Therefore, in that context, putting the interpretation of the convention in the hands of our own judges has its attractions.
It is also a fact that, for a long time, where there has been ambiguity about a domestic statute and where one acceptable interpretation would be in accordance with the convention, our judges have given our statutes that interpretation. Therefore, to some degree the process of incorporation is already occurring.
But against those benefits, we must set the possible impact of incorporation on our own constitution. Therefore, the means by which incorporation takes place is critical.
The noble and learned Lord was presented with two possible options for incorporation. For shorthand, I shall use the terms "Canadian" and "New Zealand" options, although the principles behind them rather than their details are what matter to me.
1236 In some respects, I suppose, the option which conformed more closely to our constitutional traditions was the Canadian option because it fitted in perfectly with our great constitutional principle that no parliament can bind its successor. As your Lordships are aware, that means that, if the terms of a subsequent statute conflict with the terms of a previous statute, the terms of that subsequent statute prevail and the conflicting terms of the previous statute are impliedly repealed. Therefore, it would follow that if the convention were incorporated and the terms of the convention conflicted with the terms of the previous statute, the terms of that statute would be repealed.
It would fit in with our constitutional principles and it would also have two other great advantages. The first would be legal certainty. The matter would be decided there and then by the judges; and the decision would be backed by remedies for the successful litigant.
What is the difficulty? The difficulty is clear from even a cursory glance at the kind of law which the convention makes—because its terms are very general. If the terms of the convention could repeal previous statutes, what previous statute would be immune from its terms? It would create a mass of uncertainty throughout our judicial system. Almost no statute would be safe from the possibility of being struck down by a judge interpreting the convention.
And so, despite its constitutional attractiveness, perhaps I may say with due humility that I believe that the noble and learned Lord the Lord Chancellor was quite right to reject that option.
What is the other option which he had at his disposal? It is the New Zealand option, and that option reflects the opposite principle. It says that where there is a conflict between the convention and a previous statute, and if that conflict is clear, the terms of the previous statute prevail. It is then up to the legislature—in that case, the New Zealand legislature—to make up its mind whether to change the law in conformity with the New Zealand Bill of Rights. I suspect that that summary will not find favour with the noble and learned Lord, Lord Cooke, who is to speak later this afternoon but it is the best that I can do in the circumstances.
The noble and learned Lord the Lord Chancellor has also in terms rejected that solution. I suggest that he has gone for a hybrid of the two: he is not striking down the previous statute but is giving judges the power to make a declaration of incompatibility. He then gives Parliament the option to legislate not by full primary statute but by order in council.
I believe that that solution is constitutionally unacceptable for two reasons which I shall try to explain as briefly as I can. In the Bill, the courts of this country are not bound by the decisions of the court in Strasbourg. It is to have a persuasive but not obligatory effect. When a court in this country makes a declaration of incompatibility, it might be making a declaration which is not an accurate photograph of the law of the convention. Indeed, that option is expressly incorporated in the Bill. To the extent that a declaration of incompatibility does not reflect the true construction of the jurisprudence of the convention, the judges will be 1237 making a declaration about the making of new law, judge-made law. Indeed, they will be doing more than that. They will be initiating a legislative procedure in Parliament.
What is the doctrine of the separation of powers in our country? It is that judges do not interfere with the parliamentary process on the one hand and Parliament does not interfere with the judicial process on the other. That principle has stood us in enormously good stead, certainly since the Glorious Revolution more than 300 years ago. To the extent that the judges are not reflecting the jurisprudence of the convention but stating their own view about what the convention says, they are in breach of that doctrine. They are initiating new legislation.
Of course, it is true that Parliament does not have to go ahead and pass that legislation. Indeed, what I fear may flow from a judicial decision of incompatibility is a long and bitter debate in Parliament about whether the judges were right and even if they were right, whether it is right to legislate.
§ Lord Mishcon
My Lords, will the noble Lord give way so that we can understand his otherwise very clear argument? Is not the declaration of incompatibility, merely a declaration, which does not make new law? It is not a matter of jurisprudence, but is merely a statement that an Act of Parliament conflicts with the convention, full stop; and it does it in a way which is impracticable. There is no judgment there.
§ Lord Kingsland
My Lords, first, the declaration expresses the judge's view about what is the difference between the convention and the previous statute. It does not necessarily reflect the view of the court in Strasbourg. It is therefore a home-grown judicial expression of what the law ought to be. It is not an expression of what the law of the convention is. I see that the noble Lord shakes his head and he is perfectly entitled to do so. But if the judge is making a declaration about the difference between the convention and the previous statute which is not based on the jurisprudence of the court in Strasbourg, and if his court is not bound by that jurisprudence in the future, then he must, by definition, be taking his own view about what that difference is. That view is what forms the basis for the order in council. In other words, that view is what initiates the legislation. Therefore, there is a breach of the doctrine of the separation of powers. That is the point that I make.
What is more, the legislative process which is initiated is not a full primary legislative process. It starts an order in council process. We all know that an order in council cannot be amended; and we know also that it is not usually debated, although of course in this case it will require an affirmative resolution of both Houses of Parliament. That is not proper parliamentary consideration of future legislation.
There are of course other reasons that this Bill should be looked at with great caution. Those other reasons concern the substance of the Bill. I shall not go through every clause this afternoon. The noble and learned Lord 1238 the Lord Chancellor has drawn our attention to just one of those clauses; namely, that concerning privacy. For example, on its face, the clause on privacy poses serious problems in this country because, as we all know, the BBC is a public authority and many other companies from the television media are not. Therefore, in Article 8 there is an inherent conflict between publicly and privately provided television services.
But more than that, we do not really know in which direction the judges will take us. Is that fair to the judges? Is it fair to the country, which elected the present Government, to introduce the law on privacy by the convention? It is not. The public are entitled to know exactly where they stand in relation to the law on privacy. If we are to sustain the relationship between judges and the legislature which has stood us in such good stead for so long, we need the Government to define much more carefully the framework within which the judges are to make the declarations of incompatibility; otherwise, we shall be faced with a whole raft of legislation as orders in council which was not properly authorised.
I shall not take your Lordships into any of the other clauses, but I believe that the same observations could be made with what I hope is equal force in those other areas. We must be cautious about changing our constitution which has stood us in good stead for many hundreds of years. Most other countries in the world admire it greatly. Indeed, many are very jealous of it. I do not believe that we have failed in protecting our liberties since the convention was passed, signed and ratified in 1950. I am confident that noble Lords will look at the Bill objectively, with our own constitutional principles in the forefront of their minds.
§ 3.59 p.m.
§ Lord Lester of Herne Hill
My Lords, it is greatly to the credit of the Prime Minister and his colleagues that they have introduced this measure setting enforceable legal limits to their huge executive powers, securing European Convention rights in the laws of the United Kingdom and providing effective domestic remedies for breaches of convention rights by public authorities. It demonstrates a welcome commitment to democratic and accountable government and to respect for human rights under the rule of law. I congratulate the Government on this well-designed and well-drafted Bill.
The noble and learned Lord the Lord Chancellor and the noble Lord, Lord Kingsland, have been most generous in their references to my efforts. I should like to pay tribute to the great and crucial contribution of the noble and learned Lord the Lord Chancellor both when in Opposition in convincing the Labour Party of the case for incorporation and now as Lord Chancellor in helping the Home Secretary and his other colleagues to shape the Bill. Indeed, many of its provisions are stamped with his powerful and personal imprint.
There are many others whose contributions have also been remarkable. It was the noble and learned Lord, Lord Scarman, whose Hamlyn lectures, two decades ago, first made the case for a renewal of British democracy, based upon coherent constitutional 1239 principles of citizenship and accountable government. It is excellent that the noble and learned Lord will be participating in today's debate. It was the noble Lord, Lord Higgins, whose Introduction to the House today we have welcomed, who persuaded Harold Wilson's Government in 1965 to agree to take the momentous step enabling individual cases to be brought against the United Kingdom before the European Commission and Court of Human Rights.
The case for incorporation was first taken up in this House from these Benches through the indefatigable Lord Wade, building on work carried out by my noble friend Lord Jenkins of Hillhead, as Home Secretary, when he published a Green Paper in 1976. Each of my noble friends who will speak in the course of today's debate has made significant contributions to the cause. Incorporation has also traditionally been supported by distinguished Labour Lords, including Lord Gardiner and Lord Silkin of Dulwich, and indeed by distinguished Conservative Lords like the noble Lords, Lord Broxbourne, Lord Rippon of Hexham and Lord Alexander of Weedon, and the noble and learned Lord, Lord Hailsham. It is also crucially supported by the senior judiciary, led by the Lord Chief Justice and the Master of the Rolls, and the Law Lords.
However, incorporation has never been supported by the Conservative Party. I very much hope that the noble Lord, Lord Kingsland, will even yet be able to persuade his colleagues to behave less like Dr. Doolittle's curious creature, "Pushme Pullu", and to give unequivocal support for the Bill on behalf of Her Majesty's Official Opposition. It is surely incumbent on the Opposition party to inform Parliament unequivocally whether it supports or opposes incorporation, rather than hiding behind the Salisbury doctrine and abdicating its constitutional responsibility.
The rights guaranteed by the Bill are not alien; indeed, they are part of our British birthright and constitutional heritage. As we have heard, the text was drafted by British lawyers. The values that it enshrines are universal. The convention has been exported by successive British governments to become part of the written constitutions of many Commonwealth countries. The Bill does indeed bring the basic civil and political rights of everyone in this country home by allowing everyone to claim those rights against public authorities in British courts. It involves no challenge to the English dogma of absolute parliamentary sovereignty. Rather its enactment involves the much-needed exercise of parliamentary sovereignty, giving our own courts proper authority to perform their duty of interpreting and applying common law and statute law in accordance with the UK's international obligations under the convention. True to the doctrine of parliamentary sovereignty, as the noble and learned Lord the Lord Chancellor said, the courts must defer to existing and future Acts of Parliament if it is impossible to read and give effect to them in a way which is compatible with the convention.
Therefore, far from weakening Parliament's role, the Government's proposals will increase the accountability of the Executive to Parliament. The Bill does so by requiring a Minister of the Crown in charge of a Bill in 1240 either House to make a statement before Second Reading as to his view of the compatibility or otherwise of the Bill with convention rights. That would both enhance parliamentary scrutiny and also enable the courts to ascertain whether legislation enacted after incorporation was intended to comply with or to be inconsistent with the convention. In the absence of a formally expressed intention to enact inconsistent legislation, the courts will be able to act on the basis that the legislation was intended by Parliament to be compatible with convention rights.
The Government also propose to strengthen Parliament's role in another way; namely, by supporting the creation of a new parliamentary committee on human rights, whether a joint committee or of each House. Its functions will presumably include scrutinising proposed legislation in each House, as well as UK compliance with the various international human rights codes and keeping the working of the new Act under review. That proposal was put to the previous Government by a coalition of the noble Lord, Lord Alexander of Weedon, the noble Lord, Lord Irvine of Lairg, the noble and learned Lord, Lord Simon of Glaisdale, and myself, without any success whatever. It is part of a much-needed holistic approach, which does not leave the task exclusively to the courts but which requires Parliament and the Executive, as well as the judiciary, to take human rights equally seriously.
The Bill will not empower our courts to strike down legislation which it is impossible to read in accordance with convention rights. But the command by Parliament in the Bill to the courts to read them in that way,so far as is possible",represents very strong wording. The courts will no doubt strive as far as is judicially possible to save legislation from having to be declared incompatible, and hence to be amended by future further legislation. The courts will do so by construing existing and future legislation as intended to provide the necessary safeguards to ensure fairness, proportionality and legal certainty as required by the convention.
Every declaration of incompatibility will represent a systemic failure, as our statute book is already made to comply with our convention obligations. A declaration of incompatibility will also be highly inconvenient because it will mean that our courts are unable to provide an effective judicial remedy and that the inconsistency will have to be remedied by government and Parliament under the special fast-track legislative procedure; or, if not, it will have to be remedied by the overburdened European Court of Human Rights. That is why I believe that our courts will do everything within their power to ensure that there is no mismatch between legislation and convention rights, and why declarations of incompatibility will, in the words of the noble and learned Lord the Lord Chancellor, be "very rare".
Some have criticised the power to take remedial action by subordinate legislation as being a sinister sapping of parliamentary powers. That criticism is misconceived. At present, when a judgment of the European Court requires the amendment of primary 1241 legislation, that can only be done by new, amending primary legislation. That is a slow and cumbersome method of complying with our international obligations. It has sometimes resulted in a tardy and incomplete implementation. Similarly, where a British court decides that there is a fatal inconsistency in a statute, what is needed is a speedy means of remedying the defect and of providing a remedy for the individual victim.
Under the European Communities Act 1972 (enacted by a Conservative Government), the power to implement the UK's Community obligations may be implemented by subordinate legislation, without any requirement to obtain the affirmative approval of both Houses. But this Bill provides for stronger parliamentary control, as, except in cases of pressing urgency, the implementation of the UK's convention obligations by subordinate legislation can be done only by the affirmative procedure. To require the Government to introduce primary amending legislation to give effect to European or British judgments would be to hinder the speedy and effective implementation by Parliament of convention rights, obligations and remedies.
To turn to another important aspect, there has been misguided public pressure from the press for a media immunity from the effect of the Bill in relation to the protection of personal privacy. The chairman of the Press Complaints Commission, the noble Lord, Lord Wakeham, warned, in a somewhat uncharacteristically intemperate article in yesterday's Mail on Sunday, that this Bill could become a "villains' charter", because Article 8 of the convention contains an absolute right to respect for privacy, without any specific defence of public interest. That is simply not the case.
The convention is clear in guaranteeing both the right to free speech, as the noble and learned Lord the Lord Chancellor has made clear, and the right to respect for personal privacy without making either right absolute. Article 8(2) makes a specific exception to respect for personal privacy where necessary to protect the rights and freedoms of others, including the right to free speech. I have had the privilege of representing various newspapers, broadcasters and book publishers in British courts and in the Strasbourg Court relying on Article 10 of the convention to vindicate their right to publish and their readers' right to receive information and opinions without unnecessary interference of restraint by the common law of statute. There is no stronger advocate of free speech and a free press.
But the right to free speech, like the right to respect for one's private life, is not absolute. Its exercise may be limited in a democratic society to meet some pressing social need, including the state's positive obligation to ensure respect for personal privacy by public authorities and by the media. The European Court has repeatedly emphasised the vital role of the media as watchdog and purveyors of information on matters of public interest, including the workings of government and the conduct of politicians and public officials. The European Court has also emphasised the importance of ensuring respect for the personal privacy of oneself and one's home.
1242 However, like the European Commission of Human Rights, the European Court has also made it quite clear that claims to personal privacy must not be allowed to defeat the vital public interest in free speech, except in cases of real necessity and where what is at stake really is the individual's private life. It has declared that prior restraints on publication call for particularly careful, strict scrutiny.
In the Fayeds' case—where, alas, I was defeated—the court made it clear that free expression is especially important in relation to the activities in the public sphere of public figures, as distinct from the private lives of private individuals. Politicians, public officials and businessmen involved in the affairs of large public companies lay themselves—stated the court—open to close scrutiny of their acts by the media.
The media should recognise that the UK has a positive obligation under the convention to secure the right to privacy in domestic law, and that our courts are likely—as has been said already—if not certain to develop a common law of privacy even without statutory incorporation. Some genuinely independent authority, I suggest, must surely perform the difficult and sensitive task of maintaining the balance between free speech and personal privacy.
I agree with the noble Lord, Lord Wakeham, that that body should be the Press Complaints Commission, whose enforcement and remedial powers need to be enhanced by the media in the interests of a free press acting in accordance with a new and strengthened code of practice. If that happens, then I believe that the development of a right of privacy, already inherent in the common law, will not lead normally to judicial intervention against the media, except in cases of real necessity if the PCC fails to secure a fair balance and to provide effective redress.
But neither the media nor the PCC should treat free speech as an absolute right, nor seek an immunity from liability for infringements of the right to privacy, as though they were above international human rights law. If the PCC lacks the necessary powers, or fails to exercise them, the courts will need to give necessary judicial protection as they do in the United States whose constitution gives primacy to free speech, but whose federal and state laws and common law also safeguard personal privacy.
The noble Lord, Lord Wakeham, is also mistaken in suggesting that courts,could be forced to grant injunctions to those with something to hide simply because the right to respect for privacy in the Bill is absolute",although he weakens his argument by acknowledging in the same article that his fears are based on a possible future judicial misinterpretation of the convention. The right to privacy is not absolute. I am confident that our courts, obliged by Clause 2 to take account of Strasbourg jurisprudence, will not misinterpret the law and will not grant prior restraints through interim injunctions to restrain alleged infringements of personal privacy where the defendant seeks reasonably to rely upon a public interest defence, any more than the courts now do in cases of alleged libels. 1243 I have a few points of concern about some details of the Bill. First, I understand the Government's reasons for excluding Article 13 of the convention from the provisions to be incorporated; that is the provision which obliges public authorities—judicial as well as legislative and executive—to provide effective remedies for breaches of convention rights. The Government rightly consider that the Bill gives effect to Article 13 by obliging the courts, as public authorities, to comply with convention rights. Perhaps there is also anxiety within the Government that incorporation of Article 13 might lead the courts to fashion remedies beyond those specifically prescribed by the Bill.
I do not believe that there is such a danger in fact because the Bill is quite clear as to the jurisdiction of the courts and tribunals and as to the remedies which they are and are not empowered to grant. Even in the absence of incorporation, the House of Lords and the Court of Appeal have treated Article 13 as relevant to their functions in cases such as Ex parte Khan; and Brind; and Esther Rantzen. It would be a strange legal solecism if Parliament were now to exclude Article 13 altogether from being considered by the courts when acting in accordance with the functions vested in them by the Bill.
My point would be met either by including a purpose clause stating that the Bill's object is to secure convention rights and to provide effective remedies for their breach, or by amending Clause 1(1) so that the substantive rights may be read with Article 13 as well as with Articles 16 to 18 of the convention. I should be grateful if that point could be further considered before Committee.
My second concern is that Clause 7(1) confines the standing of those seeking to review the allegedly unlawful acts of public authorities to victims, as defined under the convention. That seems to me to be too restrictive and likely to result in undue procedural complexity and unfairness. Section 31(3) of the Supreme Court Act 1981, and Order 53, Rule 3, of the Rules of the Supreme Court, impose a jurisdictional requirement of "a sufficient interest" for an applicant to apply for judicial review. That test of sufficient interest, coupled with the requirement to obtain leave to apply for judicial review, and the courts' other discretionary powers, provide sufficient safeguards against any abuse of judicial review by interfering busybodies or those without a sufficient interest. I hope that the Government upon further reflection will agree that it is unnecessary and undesirable to impose a more restrictive test where what is at stake is an alleged breach of human rights rather than ordinary administrative wrongdoing.
My third concern is that the proposed remedial orders, in cases of legislative incompatibility with the convention, should be able to provide effective remedies for those whose rights have been infringed. That is a point which perhaps one might pursue further in Committee.
My final point is more substantial. It is to ensure that incorporation enhances effective access to justice. Incorporation will mean that everyone will have to exhaust his or her domestic remedies all the way 1244 through the domestic legal system, if necessary to your Lordships' House, before having recourse to Strasbourg. If the right of access to courts, guaranteed by Article 6 of the convention, is to be real and effective and not illusory, litigants must not be unnecessarily deterred by the absence of legal aid and advice or by the risks of having to pay the legal costs of the other side.
Labour's Green Paper, Bringing Rights Home, stated that after the passage of the Bill,it will be important to … provide advice and guidance to those who wish to assert their rights"—and—to institute or support individual or public-interest cases based upon well-researched, well-founded evidence and arguments".It also stated that,One way forward could be for the Act to establish a Human Rights Commission or Commissioner".The report of the Joint Labour and Liberal Democrat Consultative Committee on Constitutional Reform, on which I was privileged to serve in Opposition, agreed that,A Human Rights Commissioner or Commission, or similar public body, would provide advice and assistance to those seeking the protection of the rights enshrined in the Convention, and he itself able to bring proceedings to secure effective compliance with the ECHR, whether by judicial review or by representative proceedings".We in my party have pressed the Government to create a very modestly funded public authority with carefully defined powers to give advice and assistance, and to bring proceedings in its own name. We are very disappointed that the Government have decided not to implement the proposal at least at this stage. However, I am encouraged by the Lord Chancellor's observations and by the White Paper's statement that the Government have not closed their mind to the idea, especially in the context perhaps of rationalising and harmonising the enforcement powers of the existing bodies dealing with unlawful discrimination on various grounds.
We all look forward to the maiden speech of the noble Baroness, Lady Amos, who has particular expertise as former chief executive of the Equal Opportunities Commission. She is an old friend with reforming instincts whose speech will make an important contribution to the debate.
In his important keynote address to the Solicitors' Annual Conference in Cardiff on 18th October, the Lord Chancellor rightly observed that the civil justice system,should be accessible for everyone—not just the very poor and the very rich".He acknowledged that there are cases where the predicted cost would be disproportionate to the likely benefit to the individual,but where it is plainly in the public interest for a particular point of law to be examined, or for a precedent to be established".The Lord Chancellor expressed his belief that,it would be right to make special arrangements for these cases".I hope that during the period when the case for a human rights commission is being further considered, the noble and learned Lord the Lord Chancellor will indeed be willing to use the powers conferred by the 1245 Bill to make special arrangements as to costs where legal issues of real public importance are raised in judicial review or other proceedings of the kind referred to in his keynote address. It is not enough, I believe, to permit lawyers to enter into no-win no-fee agreements with clients of limited means. It is also necessary to ensure that the risk as to costs, including the respondent's costs, do not act as an obstacle in the way of effective access to justice.
I also hope that the Lord Chancellor will use the powers conferred by the Bill to implement the recommendation of the noble and learned Lord, Lord Woolf, in his masterly report on Access to Justice that the courts should have a discretion to order such costs be paid out of public funds, or to order at the leave stage that an unsuccessful applicant will not have to pay the respondent's costs where the court is satisfied that the proceedings have been brought in the public interest.
Effective access to justice for all is a basic human right guaranteed by the convention. Effective access is crucially important if the Bill is to make real progress towards a constitutional Bill of Rights for this country.
§ 4.24 p.m.
§ Lord Bingham of Cornhill
My Lords, I join with previous speakers in looking forward with eager anticipation to the speech to be made later by the noble Baroness, Lady Amos. I also associate myself, if I may, with the tributes already paid to the noble and learned Lord, Lord Scarman, the former head of my chambers, and the noble Lord, Lord Lester of Herne Hill.
I welcome the Bill. My reasons for doing so are unsurprising and may therefore be stated briefly. First, it seems to me highly desirable that rights and freedoms which the United Kingdom has undertaken to guarantee to its citizens should be enforceable by those citizens here in the United Kingdom. It makes no sense, and, I suggest, does not make for justice that those seeking to enforce their rights have to exhaust all their domestic remedies here before embarking on the long and costly trail to Strasbourg.
Secondly, it seems to me highly desirable that we in the United Kingdom should help to mould the law by which we are governed in this area. I think—and the very distinguished president of the European Court of Human Rights has made it clear that he shares this belief—that British judges have a significant contribution to make in the development of the law of human rights. It is a contribution which so far we have not been permitted to make. But incorporation will also mean, I hope, that when cases from this country reach Strasbourg, as on occasion they will do, the court will have the benefit of a considered judgment by a British judge on the point at issue. That will mean, I hope, that some of our more idiosyncratic national procedures and practices may be better understood.
Thirdly, I consider that incorporation will strengthen the confidence of the public in our democratic and judicial institutions. At present disappointed litigants leave our courts believing that there exists elsewhere a superior form of justice which our courts are not allowed to 1246 administer. In most cases those litigants would fare no better with the benefit of the convention. But the belief that there is some superior form of justice available elsewhere is, I think, damaging and undermines confidence in our institutions. It is unhealthy; and I hope that incorporation will restore the belief of our people, once an article of faith, that human rights and fundamental freedoms flourish as luxuriantly here as anywhere else in the world. It is after all 350 years since Milton wrote in Areopagitica,Let not England forget her precedence of teaching nations how to live".I believe that these are solid reasons for welcoming the Bill. But I do not think that they will turn our world upside down. I do not think so badly of our institutions as to suppose that we have been routinely violating human rights and undermining fundamental freedoms all these years. I am aware, as are your Lordships, of a number of objections in principle to incorporation. The first is that it involves, so it is said, a major transfer of power from Parliament to the judiciary. While I respect those who advance that argument, it is not one I accept. The mode of incorporation does not empower judges, as the noble and learned Lord the Lord Chancellor made clear, to overrule, set aside, disapply, or—if one wants to be even more dramatic—strike down Acts of Parliament. That is a power which throughout the recent debates the judges have made clear they do not seek. The mode of incorporation adopted is that which most fully respects the sovereignty of Parliament. Following incorporation, nothing will be decided by judges which is not already decided by judges. The difference is that British judges will in the first instance have an opportunity to provide a solution.
The second objection in principle which one frequently hears is that it will draw the judges into politics. That has not, so far as I know, happened in all the other member states of the Council of Europe which have either incorporated the convention or given effect to it. As noble Lords well know, judges already from time to time find themselves deciding cases which have political, sometimes even party-political, implications. The judges strive to decide those cases on a firm basis of legal principle; and that is what they will continue to do when the convention is incorporated if the Bill becomes law.
Thirdly—a matter referred to by previous speakers—concern has been voiced by the media at the implications of Article 8. The first paragraph of the article states:Everyone has the right to respect for his private and family life, his home and his correspondence".The second paragraph goes on to provide that:There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society",for one of a limited number of special purposes. I find it hard to see how the article poses a threat to responsible organs of the press or the broadcasting media. I find it even more difficult to see that, when one recognises that, for the first time in British history, there will be a guaranteed, though not unqualified, right to freedom of expression.
1247 Questions are bound to arise on the line that divides the right to privacy from the right to freedom of expression. In the absence of statutory guidance, the courts will have to decide such questions when challenges are made. They will be guided by the case law in Strasbourg. They will pay attention to cases in other jurisdictions around the world which have provisions and which have given helpful answers to analogous questions. The judges will strive to give effect to the public policy underlying the convention. If they fail to do so, they are open to correction by Parliament or by the European Court of Human Rights. I find it hard to see why this country—alone among European nations—should fail to reconcile these competing principles in an acceptable manner.
It is no doubt possible that the Bill may be improved during its passage through Parliament. However, I welcome it as a valuable step in the right direction. I hope that I shall not be thought discourteous if I leave the debate before all noble Lords have spoken. I have an inescapable engagement later in the evening.
§ 4.32 p.m.
§ Baroness Amos
My Lords, I welcome the opportunity to participate in a debate on a subject in which I have had a long-standing personal and professional interest. It is an honour to speak in this House, with its commitment to justice, and in the company of so many who have campaigned vigorously for human rights legislation in the United Kingdom.
As this is the occasion of my maiden speech, I am mindful of the advice I was given to be brief and uncontroversial. Human rights is a subject that can generate strong feelings and, as such, does not readily lend itself to a totally uncontroversial speech. But I have been assisted in that regard by the scope, comprehensiveness and content of the Bill and the White Paper which accompanies it.
The Bill is the most significant development in protecting human rights in the United Kingdom since the war. Its impact could be far-reaching, not only in providing individuals with access to justice if their rights are infringed but in helping to ensure that they never need to go to court—by changing the way in which legislation and policies are drafted and by raising awareness throughout society of the importance of rights and the responsibilities that they entail.
That is a development which I very much welcome. Only last year, the Runnymede Trust, of which I am deputy chair, was part of a delegation of United Kingdom organisations to the United Nations meeting of the Human Rights Committee for the Elimination of Racial Discrimination. Committee members, in their final recommendations to the British Government, confirmed that according to international standards racism in the UK is a violation of human rights. The continued existence of racism and other forms of discrimination in any modern society needs to be seriously addressed. The Bill goes some way towards creating the framework for a more inclusive and tolerant society which values diversity and the contribution being made by all its citizens. It begins the process of 1248 creating and promoting a rights culture in which every individual recognises that we all have a role to play and that working towards the elimination of discrimination (be it on the grounds of sex, race, disability or sexuality) is a majority issue and not a marginal concern.
In this respect, I regret the fact that the Bill makes no provision for the establishment of a human rights commission, although the White Paper does not rule out the setting up of such a body at a later stage. As a former chief executive of the Equal Opportunities Commission, the statutory body which deals with sex discrimination and equal pay, I am mindful of the important role that national statutory bodies can play in ensuring that individuals have access to justice and access to the expert advice and assistance they need to bring a case. Our existing statutory bodies, such as the Commission for Racial Equality and the Equal Opportunities Commission, have an important legal role; but they also have an important role in raising public awareness.
I would like to see a human rights commission in the United Kingdom with the following key functions: securing access to justice; promoting good practice among the public bodies which may otherwise find their practices subject to challenge in the courts; monitoring draft legislation and policy and assisting Parliament in scrutinising legislation; and providing information to the public. Those functions are particularly important in the early stages of incorporation to ensure that the rights set out in the Bill are accessible and that Parliament, the courts and the general public are assisted in the interpretation, enforcement and monitoring of those rights.
There is of course an ongoing debate about whether the Equal Opportunities Commission and the Commission for Racial Equality should be brought within the umbrella of a human rights commission if such a body is created. The Institute of Public Policy Research, of which I am a trustee, has conducted research on the functions which a human rights commission could fulfil and the structure that it might have. In my view the effectiveness of the Equal Opportunities Commission and the Commission for Racial Equality would be enhanced by becoming part of a human rights commission. It would bring issues of race and sex discrimination from the margins to the mainstream; the two organisations would no longer be perceived as acting in the interests of a particular social group but would be seen as part of a body promoting and enforcing internationally recognised human rights. For the public, employers and other organisations seeking guidance, there would be a single body—a one-stop shop.
There will always be difficulties in changing the institutional structure of existing bodies. Reassurance will be needed that the intention is to strengthen each part of any new body and that neither race nor gender discrimination will be marginalised in any new structure. However, differences about optimal structures should not deter us from creating a body which will undoubtedly be needed if the Bill is to achieve its full potential in protecting the rights of people within the United Kingdom.
1249 I hope that the Government will now take the lead and consult on the options with respect to the creation of a human rights commission and build the consensus which they have rightly identified as being desirable.
I thank your Lordships for your patience and kind attention.
§ 4.40 p.m.
§ The Lord Bishop of Lichfield
My Lords, I am delighted, on behalf of your Lordships' House, to congratulate warmly the noble Baroness, Lady Amos, on her excellent maiden speech. Her speech reveals at first hand her wide experience of issues connected with the Bill. Her work with the Equal Opportunities Commission, about which we have heard several times, her work with the Black Health Foundation and her present, ongoing deputy chairmanship of the Runnymede Trust all qualify her to assist your Lordships' House with the present business but also with many other subjects on which we look forward to hearing from her. On behalf of your Lordships' House, I repeat our congratulations to the noble Baroness on her speech; we look forward to hearing from her in the future.
Various speakers from the Bishops' Bench, in 1995 and 1997, assured the House that, should it pass the Bill, a substantial body of people, from other-faith communities as well as the churches, would applaud. In 1985, for instance, the Roman Catholic bishops of England and Wales strongly supported the incorporation of the European Convention on Human Rights into United Kingdom law, as did the majority of the executive committee of the then British Council of Churches. Those are not merely formal gestures of support. For some of us, there is a spiritual and religious dimension, as well as a legal and human dimension, to the Bill. It may be of more than historical interest to recall that in 1776 the American Declaration of Independence had at its heart a religious reference, declaring that:All men are created equal and are endowed by their creator with certain inalienable rights".I believe that there is also a moral dimension to the Bill. In a speech in your Lordships' House on 1st May 1995 my colleague, the Right Reverend Prelate the Bishop of Oxford, said:I believe that in the end [the incorporation of such articles of the convention into law] … is a moral matter and that the rights enshrined in the convention are not there simply because certain states decide that they will be there but because those states recognise certain fundamental moral principles which need to be enshrined in law".—[Official Report, 1/5/95; col. 1279.]I speak, therefore, as a supporter of the Bill. However, perhaps I may, for that very reason, raise two questions already aired in public discussion but on which I should be grateful to hear a further answer. I trust that noble and learned Members of this House from the legal world will bear with me if my questions are naive or confused.
First, is it the case, as some public criticism has claimed, that the convention defines the human rights which it protects in terms which are dangerously general? In particular, is it the case that the terms in 1250 which the restrictions on human rights are framed are too sweeping—broad terms such as "national security", "the prevention of disorder" and "health and morals"? Some of us have read the argument that such generality is at odds with the more detailed case law-based practices of British justice. But the justification for incorporation must surely be that it will enlarge the freedoms of citizens under the law. Is there a danger that the sheer generality of some of the articles could be interpreted in such a way as to restrict those freedoms?
My second question concerns the proposed fast track for changing laws following an adverse declaration by the courts. As I understand it, the proposal is to do this under 90-minute orders. Such orders can be rejected by Parliament. Will they, with the pressure of other business, be scrutinised and amended with due care? I understand that in particularly urgent cases the order would take immediate effect, although it would expire after a short period if not approved by both Houses. A not unfriendly critic might still ask whether over a period of time, as an ongoing process, all this would not shift the balance between Parliament and the courts in ways that may not be evident for some years.
The noble Lord, Lord Habgood, and the Right Reverend Prelate the Bishop of Oxford were members of a working party on human rights and responsibilities in Britain and Ireland which reported in 1988. That report concluded that the incorporation of the European convention into domestic law could make a significant contribution to the solution of the problems of Northern Ireland by providing an additional safeguard to the rights of people. I believe that that argument still holds. Justice and the rule of law are the best basis for reconciliation in that context. I am sure that your Lordships will not take it amiss if I insist upon this point: reconciliation requires more than good law, but justice is the best foundation for peace.
In conclusion, I am convinced that many church leaders and leaders of other communities in these islands would argue, as I do, that the right of the citizen to challenge the lawfulness of any Act by the government under which they live is one of the strong foundations of democracy. The main function of this legislation is not to undermine our legal system through incorporation of foreign elements within it but genuinely to see that justice is done without unnecessary delay or exposure. The title Bringing Human Rights Home is well chosen.
§ 4.47 p.m.
§ Lord Mishcon
My Lords, your Lordships also have human rights. One is that, if I exercise the privilege of addressing your Lordships, I should be brief and not repeat what others have already said. I deeply regret that the noble Lord, Lord Kingsland, is not in his seat. I hope that I shall not be deemed discourteous if I comment on his speech in his absence; I would have much preferred to have said it in his presence.
It is regrettable that the main Opposition party is not joining with others in your Lordships' House in agreeing to the Bill. I believe that it is singularly unfortunate—for them, as well as for the country—that the impression 1251 should be given that the Opposition is opposed to the proposed rights of British subjects to come to British courts; but there it is.
I admired the noble Lord's speech for the readiness of his eloquence and, if I may say so, his utmost clarity in developing unclear arguments. I am glad that the noble Lord is here to hear those words, if he heard no more.
I can understand the person who takes responsibility for the main Opposition's views in this matter saying that he disagrees, as does his party, with the whole idea of the convention. Many arguments were advanced on the basis of, "Surely our common law is good enough. Do we not have enough of a reputation in regard to our civil rights and liberties without having to borrow somebody else's convention, even though British lawyers took such a prominent part in drawing it up?" That I can understand. What I cannot understand is somebody saying, "The convention is a good document and I am glad that in 1951 this country ratified it. But the only way in which advantage can be taken of that convention is by telling one's client (if one happens to be a lawyer) 'in our view, you have definitely got rights under this convention. But I am sorry that, in order to exercise them, you will have to take a journey to Strasbourg with me. It will take a long time because the lists are cluttered up. I am afraid that when we start thinking of legal costs, the amount will be considerable. I am afraid also that you will not necessarily have the benefit, as you would have done if things had been different, of going before an English judge who would interpret—as much as he could—by the principles of English law the law set down by the convention".
There is no doubt that we have the finest judges in the world—some of us will be even more certain of that after recent events. That is something that could hardly be said by the judges who have already spoken in the debate. To deprive our citizens of their right to appear before those judges is an ungainly attitude for the main Opposition to take. However, it was put on record. The reason they are not opposing the Bill is not because they want to put any arguments against it, but because of the Salisbury Convention. We are indebted to the name of Salisbury for many things and I suppose we must add that to our indebtedness on this occasion.
Perhaps I may take up one of the points that was made and develop it a little. One of the examples given by the noble Lord, Lord Kingsland, was the declaration of incompatibility. As I understood him—I know he will correct me if I am wrong—he felt that the declaration of incompatibility was made in breach of the whole of our constitution in the sense that the judge was telling Parliament what Parliament ought to tell the country. I do not understand that. The judge will only say what any layman of intelligence might say: "I am faced with the existing statute on one side; I am faced on the other side with the convention and the two cannot be matched. I am not saying that one is right and the other is wrong".
In fact under the Bill, if it becomes an Act, he would have to say, "In my position as a judge I can only take into account the Act of Parliament which already exists". Then, under the Bill, if the question of 1252 incompatibility is to be examined, notice must be given to the Crown. The Minister can make himself part of the proceedings. That is Parliament speaking in the law courts; talking in terms of discussing incompatibility. If there is incompatibility, who decides whether or not the Act of Parliament which is incompatible should be amended? Parliament decides that; not the judge.
Having said that, perhaps I may ask a question of the Minister. I do not know how the procedure—with which I entirely concur—works. The judge makes a declaration of incompatibility and has in front of him the accused in a criminal case or the plaintiff or defendant in a civil case. Incompatibility is found. If the Minister who is responsible wants to intervene, he can do so. He does so and the application is heard; there is then a decision.
What happens in the case that is under review? Possibly the decision will be announced by the Minister in the court that he intends to recommend that our statute be amended to conform with the declaration. What does the judge then do? Does he adjourn the proceedings to see what view may be taken? In the Bill there is a procedure under which it is held that there can be retrospective legislation or retroactive legislation. It could therefore date back to the time of the trial. Does one adjourn and wait? There is another provision in the Bill which says that nobody is to be made guilty as a result of the eventual decision of the Government either to keep the legislation or to amend it. But it does not say that someone must not be made innocent. I should be grateful if the Minister could reply to that question at the end of the debate.
My last words—your Lordships will appreciate this—relate to Clauses 8 and 10 of the convention. Those are the clauses that relate to privacy. It is all very well to talk about the public interest when one is in the newspaper world—and much of our newspaper world is still reputable. But there is a part of it of which I am thoroughly ashamed. I say that without reservation. My American friends used to come to me and say, "What a joy it is to read your British press. It is nothing like our newspapers that contain gossip and pictures of the kind that we do not admire". Now they say, "Oh, you have caught our American plague, have you, with some of your newspapers?".
We talk of public interest but I wonder whether it does not also go the other way. The convention lays down that everyone is entitled to privacy in person, correspondence, home and family. The Royal Family is entitled to it; Ministers of the Crown are entitled to it; and Members of Parliament are entitled to it. In the public interest I say this. I know of many men and women who are extremely capable of rendering public service to this country who have said to me, "We would love to do it, but no thank you; not at the cost to my family life, knowing that every action of mine will be looked at and every person with whom I have dinner or lunch will be photographed. No thank you. I love my family too much, however much I love my country".
Public interest therefore goes both ways and if the voluntary regulation does not pay with some members of our press, then I hope a judicial decision made in the light of this Bill by British judges will bring them to their senses.
§ 4.59 p.m.
§ Lord Waddington
My Lords, I fear that I may be about to put something of a dampener on the proceedings. But in doing so, and in showing less than full enthusiasm for this Bill, I would not like it to be thought that I do not admire greatly the work done by many people, and perhaps principally the noble Lord, Lord Lester of Herne Hill, in the field of human rights. When I make my contribution I would not like it to be thought that I am not paying tribute to him and also, as others have done, congratulating the noble Baroness, Lady Amos, on her maiden speech.
When one reads some of the decisions of the European Court of Human Rights, such as the decision that the United Kingdom violated the human rights of the IRA terrorists who went to Gibraltar bent on murder, it is not surprising that some have argued that we should have denounced the convention years ago. But the fact of the matter is that we have not denounced the convention, and at first blush it seems attractive to argue, as many have, that if a convention which Britain has signed gives British people rights, they should not have to make the long and expensive journey to Strasbourg in order to obtain them. But of course the matter does not rest there. For while the Prime Minister stresses that the object of the exercise is little more than to make it easier for people to get their rights—in the words of the White Paper,to make more directly accessible the rights which the British people already enjoy under the convention"—the noble and learned Lord the Lord Chancellor has over the months sung a very different tune.
According to the noble and learned Lord, incorporation will include a very significant transfer of power to the judges, who—I quote from a press report of a speech he made—will interpret the convention to reflect changing social attitudes".In plain language, that means that the judges will make new laws. The noble and learned Lord was reported some time ago as saying that he contemplated, as an example of the sort of law they would make, a new law of privacy. It does not take too much imagination to see that that would have one great advantage for the Government. The Government would at least be spared the embarrassment of having to introduce a privacy Bill themselves, with all the risks of conflict with the press which that would entail.
Now of course the judges have always made law. Indeed when we talk about human rights, as we do today, we should remember that such human rights as our law recognises are largely judge-made; for example, the presumption of innocence, the right of peaceful assembly and the freedom of the press. As we applaud the judges for having used common law principles to uphold individual rights, we are entitled to wonder whether we cannot trust them to continue to develop the common law to meet new threats to our liberties when they arise.
But make no mistake about it, when we ask the judges to get to work on some of the vague and imprecise concepts in the convention, such as the right of respect for family life, when we give the judges the opportunity 1254 to put whatever construction they like on these concepts, we will be giving an immense new impetus to the judges' law-making power, for good or ill. Furthermore, we will be doing so at a time when the judges have not exactly been backward in coming forward, having in any event been demonstrating an increasing enthusiasm to make new laws, particularly new laws to fetter the Executive.
Against this background, is it not obvious that the greater the latitude allowed to judges to make new laws, the greater the risk of their appearing arbitrary, capricious and biased; and is it not obvious that the greater the latitude allowed to judges to make law, the greater the risk of conflict with Parliament?
We were told that the Bill has been drafted to minimise the risk of such conflict. But increasing conflict there undoubtedly will be. The courts may not be able to strike down a Bill as conflicting with the convention, but the noble Lord, Lord Mishcon, has to acknowledge that the end result will be precisely the same. If the judges make law which conflicts with a law made by Parliament, a fast-track procedure will be invoked to ensure that Parliament bows the knee and the judges' law prevails. That is the truth of the matter. And what these laws will be, to which Parliament will have to bow the knee, is anyone's guess.
It will all depend, according to the noble and learned Lord the Lord Chancellor, on the judges' views of what Parliament, the elected representatives of the people, has failed to do by way of change to the present law to reflect "changing social attitudes". When these conflicts with Parliament arise, as they inevitably will, it is equally inevitable that there will be much greater interest in the political affiliations of those appointed to the Bench and, as in the United States, appointments will become a matter of controversy, with the suspicion, justified or not, that they have been made on political grounds. We will finish up paying a handsome price for the exercise on which we have now embarked.
What makes this whole exercise particularly unsatisfactory is that while, through incorporation, we will be running all these risks, we will not avoid continuing to be made fools of by the judges in Strasbourg. If British judges are robust and reject large numbers of complaints, the litigants, or a large number of them, will go to Strasbourg anyhow, and we could actually finish up with more decisions against us at Strasbourg than we get now.
That of course will mean us finishing up with the worst of all worlds: first, erosion of the sovereignty of Parliament, with the judges rather than the elected representatives of the people making laws to reflect changing social attitudes; and, secondly, foreign judges, brought up in an entirely different tradition, making embarrassingly inappropriate decisions in Strasbourg. At the end of it all I cannot forget that for centuries we have got on very well, avoiding tyranny, without a constitution spelling out in high-flown phrases so-called fundamental rights. The Government of the Soviet Union, with such a constitution, practised mass murder. I do not believe that the British need to be given rights; or rather, if they need to be given rights, they are not to be found in the convention.
1255 As a free born citizen I thought, long before I read the convention, that my family and my home were entitled to respect. I thought—and surely I was right to think—that if any public authority invaded my home without just cause, I had a remedy. But I am now told that if my home was invaded and I was foolish enough to seek a remedy under the European convention, I might be met with the argument that, in my case, invasion of my home was necessary—and here I quote from Article 8—for the economic well-being of the country or the protection of my or someone else's health. I am tempted to say, though I fear I would be out of order to say so, thank you for nothing, my Lord Chancellor; thank you for nothing, Mr. Straw.
My Lords, before my noble friend sits down, I wonder whether he will bear in mind that for the past 46 years the people of our country have been subject to the rights and obligations created by the European Convention on Human Rights, and that when they have had access to the European Court the judges there have included a British judge or sometimes two British judges. The conflict to which my noble friend has referred between the decisions of the Court and governments in the European Community just does not seem to have arisen. Is it not now right that the British people should have their rights and obligations enforced by our judges in our courts?
§ Lord Waddington
My Lords, my noble friend must have misunderstood what I said earlier. I was not talking about conflicts which have occurred but about the potential for conflict in the future as a result of giving a great, new impetus to the judges' law-making power. I should have thought that it was obvious to everybody that there is some risk in giving this new impetus to the judges' law-making power. In my view, conflict with Parliament will almost certainly arise.
§ 5.10 p.m.
§ Lord Scarman
My Lords, I am most grateful to noble Lords for allowing me to speak so early in the debate. Sadly, I shall be unable to stay until the end of the debate for pressing private reasons. Once again, I thank your Lordships for allowing me to speak so soon.
This has been a splendid debate so far—until, if I may say so, the last 10 to 15 minutes. I am a retired judge and when the noble Lord, Lord Waddington, was speaking, I wondered exactly what class of men and women he was referring to in terms of the way in which they apparently behave intellectually. I remind the noble Lord that for centuries our judges have been developing the common law, and for centuries from time to time Parliament has amended, reformed and perhaps even removed part of the common law. I have not noticed any judicial revolution because of that and I have not noticed any tyrannical behaviour on the part of Parliament. Indeed, if we were not to enter the new constitutional phase which is heralded by the Bill, it may be that the judges would look at the convention, knowing the way in which it was drafted and its history, as something that could creep into the law through the common law unless Parliament passed legislation to cancel it. That would be absurd and, fortunately, we have this Bill.
1256 The Bill is the beginning of a very important constitutional chapter in our history. The quality of the Bill is that it recognises that in a democracy, the democratically elected assembly—for us, that is Parliament—must be sovereign. At the same time, the Bill recognises that the European Convention on Human Rights exists and that that convention, ratified by Britain in 1951, guarantees the human rights stated in it. The Bill recognises that those rights are already in existence in the United Kingdom, although their direct enforcement is not yet possible here.
What has the Bill done? The Bill has stood up for parliamentary sovereignty. At the same time, to quote from the preamble to the Bill, it,gives further effect … to rights and freedoms guaranteed under the European Convention on Human Rights".The Bill recognises that under our law those rights are already guaranteed and takes that as an opportunity for constitutional reform. The Bill is modest. As I have said, the legislation will be an Act to give further effect to rights and freedoms that are already guaranteed under the European convention.
The Bill has done that in a brilliant way and I congratulate the noble and learned Lord the Lord Chancellor, his colleagues in government, the civil servants and the draftsmen on the document that they have produced. We now have the protection of our primary law and the protection of the rights that are guaranteed by the European convention. That is achieved by a partnership, if I may put it like that, between Parliament and the judges. The judges do not strike down primary legislation; they merely indicate their opinion, without fuss, that certain matters are incompatible and leave it at that. When there is incompatibility between a primary statute and the European Convention on Human Rights, there will be a fast-track parliamentary procedure.
The Bill may or may not need reform or looking at again in the future, but it is the beginning of a new constitutional chapter and I see absolutely nothing in the history of English law which indicates that either the judges or Parliament will play rough. This is a new form of partnership, with the judges sticking to their judicial work and Parliament being supreme in legislation. That is absolutely right. If we are to be a democracy, the people must have the last word. Having said that, constitutionally we can ensure the protection and development of our rights, guaranteed under the convention.
A number of provisions in the Bill could well be further considered. My speech will be short, so I certainly do not propose to do that, but I should like to say this: if we go ahead, developing phase by phase along the lines suggested in the Bill, we shall work out a new constitution which will be to the infinite benefit of everyone. I have no doubt about that. It will come if the spirit of the Bill is maintained. Having heard the speeches that have been made so far, I end by saying that we need have no fears: we are on a path to constitutional reform which will preserve our democracy and our convention rights.
§ 5.19 p.m.
§ Lord Holme of Cheltenham
My Lords, it is a great privilege to follow the noble and learned Lord, Lord Scarman. As one who has been a humble foot-soldier in his band which is now on the eve of a famous victory, perhaps I may add that there is no noble Lord to whom I should rather give way than the noble and learned Lord. This is a great day for him and for Britain. I am extremely glad that he is with us today of all days.
This is a victory not for any political party, or combination of political parties, but for individuals and citizens for whom the noble and learned Lord the Lord Chancellor spoke in his introductory speech. I believe that it is right to pay tribute to some of those outside your Lordships' House and the other place who have put so much effort into this over the years. I refer to NGOs like Justice, Liberty, the Runnymede Trust, referred to by the noble Baroness, the Constitutional Reform Centre, of which I had the honour to be chairman for some time, and perhaps above all the Standing Advisory Commission on Human Rights in Northern Ireland. As long ago as 1977 that was the first body to come out in support of this proposition for the very reason, which has already been referred to by the right reverend Prelate, that in Northern Ireland this was one measure on which all sides of the community and all parties agreed. It provides a basis for common respect for human rights across the communities. It is no coincidence that the Standing Advisory Commission on Human Rights in Northern Ireland was an early supporter of this measure.
I am bound to say that I am slightly confused by the message that has come from the Benches to my left. I got the impression—perhaps I did not pay sufficient attention—that the noble Lord, Lord Kingsland, was rather in favour of the incorporation of the convention into British law. At one point he praised it with faint damns. Towards the end of his speech I slightly lost his argument, but my overall impression was that the noble Lord quite liked this measure. One then heard a robust and unreconstructed speech from the noble Lord, Lord Waddington. Perhaps he provides the more authentic traditional voice of the Conservative Party. One wonders whether the noble Lord, who presided with such distinction over the beautiful island of Bermuda, is aware that written into its constitution is the whole of the European Convention on Human Rights. It is good enough for the Commonwealth, Europe and virtually the whole world, but apparently not good enough for the Conservative Party.
This is a debate full of immensely distinguished lawyers from all over the place. Lawyers have spoken and are about to speak. Of course, those of us who are laymen listen to them with enormous respect. But I believe that there is an important aspect of this convention that must be considered in an entirely different way. It is natural for lawyers to think of remedies and the infringement of rights. They think of courts and what happens in them to deal with the infringement of rights and how remedies can be made available. That is how it should be, and that is what lawyers are for. But I believe that it is more important for us to consider the normative effect in creating a 1258 culture of rights. This was a matter to which the noble and learned Lord referred and to which the noble Baroness, Lady Amos, also referred in an outstanding maiden speech. If one is to create a culture of rights, what is far more important than what ends in court is whether legislators in legislating and administrators in administering build into their thinking this culture of rights so that one ends up with less legal proceedings and more of a culture and society that provide greater respect for rights; in other words, the normative effect is the key and one should always be alert to the rights of the individual.
If I have one bone to pick with the Government it is a relatively small one but I pick it nonetheless. I refer to the rather warm words but faint commitment to a human rights commission. The Government have said that at some stage in the future they will be open to considering such a commission. Surely, the need for a commission is at the beginning of this process, to take up cases to test the law, to encourage and assist individuals in a new area for British courts and to promote good practice; in short, to make the whole process work. I hope that the educational effect that a commission can have is a matter that the Government will address slightly more urgently than their words suggest. Words such as "the future" always make one a little nervous. That is a limbo in which all too often good ideas disappear.
I should like to seek three assurances from the noble Lord, Lord Williams, when he comes to reply to the debate: first, that the future to which the Government refer is the near future; secondly, that on the issue of the commission there is no question of a Treasury veto on relatively modest sums of money to fund such a commission; and, thirdly, that the Government will take an active lead in trying to reconcile the commission with the other equality commissions. I believe that this is such a complicated matter that without an active lead from the Government these questions are unlikely to be resolved. I seek those assurances in the context of an apology that I must make to the noble Lord. I have already notified him that I have a long-standing engagement which means that I may have to leave before he replies. But I shall be most interested to read what he says.
In conclusion, this Bill is a major plank in the Government's programme of constitutional reform. It has the power to modernise and invigorate our system of government. But, above all, the reason why I believe that we should support it wholeheartedly is that it aims to put the citizen back where he and she belong; that is, at the centre of the system rather than on the periphery.
§ 5.26 p.m.
§ Lord Simon of Glaisdale
My Lords, the White Paper justly pays tribute to two of the precursors of this Bill. The noble Lord, Lord Lester, has done so much not only in presenting a Bill which foreshadows this but also in leading us—those who followed—into the concept of the value of a parliamentary committee on human rights. I should like to see a joint select committee. For that, too, we are indebted to him. The other one who was mentioned in the White Paper, I believe valuably, was 1259 Sir Edward Gardner, who had been my parliamentary private secretary. He, too, introduced a Bill on the lines of this measures. Very valuably, he set it in the context of English, British constitutional and common law. But there was one who was not mentioned until he was referred to by the noble Lord, Lord Lester. I refer to the late Lord Wade who, Session after Session, tabled a Bill on these lines. I strongly supported him, so naturally I support this Bill.
I was a little embarrassed at the time because four noble and learned Lords who were personal friends and colleagues, and for whom I had very great respect, differed on the matter. On one side were my noble and learned friends Lord Scarman and Lord Hailsham of Saint Marylebone; on the other side were the late Lord Diplock and the late Lord Elwyn-Jones. One should remember that Lord Elwyn-Jones on that occasion also spoke on behalf of the Labour Party, which renders inappropriate part of the jibes of a rather partisan political character that have occasionally crept into this debate.
I was very glad that the noble Lord, Lord Waddington, as did Lord Elwyn-Jones, pointed out that there was another side to this question. It is one that I do not myself accept. I believe that the arguments are overwhelmingly preponderant in favour of this Bill. However, one would be very rash indeed to proceed without weighing very carefully what the noble Lord has said today.
In view of all that has been said, I think that I can address myself to three specific points. The first is that, although one might not have gathered it from the speech of my noble and learned friend on the Woolsack, the Bill nevertheless introduces into English law for the first time a right to privacy. I say "for the first time", but it was in fact adumbrated many years ago. In 1351, in the famous statute which inaugurated the justice of the peace, it was made an offence to eavesdrop. At that time literally listening under the eaves of your neighbour's house was considered an infringement of his privacy. Unfortunately we lost that tradition in our law, and today we have far more grotesque invasions of privacy: electronic eavesdropping, long distance photo lenses, and so on. I profoundly agreed with what the noble Lord, Lord Mishcon, said at the end of his speech about the danger such conduct renders to the recruitment of valuable people into our public life.
I have some questions to ask, on the assumption that the right to privacy is a real right. I believe that it can be enforced against a public body only. Presumably—perhaps the noble Lord, Lord Williams, will correct me if I am wrong—that will include the BBC. Will it include independent television and its various components? Will it include the press? I doubt it as such, but in the valuable brief which the organisation which is now called Liberty has circulated, it suggests that the matter might be indirectly canvassed against the press by bringing a complaint to the Press Complaints Commission, and, on failing to receive satisfaction from it, to bring a suit for judicial review. That seems to be hopelessly circuitous. I hope that the noble Lord, Lord Williams, will be able to satisfy us on that point.
1260 The second point that I want to raise is on legal aid. I naturally attach high importance to access to justice, but I respectfully agreed entirely with my noble and learned friend on the Woolsack, and with his predecessor, that there must be some containment of the legal aid bill which is now utterly out of hand. I disagreed however with the proposal that the mitigation of legal aid should be compensated for by a no win-no pay system of litigation. That brings a most undesirable gambling element into our legal system and profession.
Indeed, I should have thought that it is inappropriate in the context of human rights where there is seldom, and often a restricted, right to compensation. The remedies are sometimes unpecuniary. Perhaps I may suggest an alternative; that is, to give certain bodies, at the discretion of the court, a locus standi. That could include bodies such as the Commission for Racial Equality and the Equal Opportunities Commission. I would go further, because I should like to see both those bodies pressed into a human rights commission. I agreed with what the noble Lords, Lord Lester and Lord Holme of Cheltenham, and the noble Baroness, Lady Amos, in her splendid maiden speech, said about that.
If we had a commission for human rights and permitted it, at the discretion of the court, to have a locus standi in these matters, part of the denial of legal aid would be solved. American courts give that type of locus standi. I see no reason why we should not.
We should not be justified in adding to the legal aid bill at this moment. We are at the moment borrowing money which has to be repaid by our children. We are not justified in borrowing it to spend on our own satisfaction but only on matters such as education, training and investment which inure to the benefit of those who have to repay the debt.
The last matter I should like to raise is one which has been freely and valuably canvassed; that is, the relationship between Parliament and the courts. So far as concerns future legislation, it seems to me that the Government's proposal is well-conceived in the light of our constitutional balance, but as regards past legislation, I cannot see why the common law rule that a later statute which is incompatible with an earlier one impliedly revokes that other in so far as it is not expressly revoked. Indeed I should have thought that that rule must subsist until it is expressly abrogated by statute. Having raised those matters, I should not like it to be thought that I am not wholeheartedly in favour of the Bill.
§ 5.38 p.m.
§ Lord Mayhew of Twysden
My Lords, it is an honour to follow the noble and learned Lord, Lord Simon of Glaisdale, whom I have had the opportunity to admire over the years from a number of standpoints. I was glad that he said what he did about the speech of 1261 my noble friend Lord Waddington, because as the debate unfolded I had begun to think that I might be in a minority of one, and therefore in need of some protection, as I sought to develop a warning, which I wanted to lay before your Lordships. It is a warning which, until my noble friend Lord Waddington had spoken, had thus far gone unuttered.
Perhaps I may interpose one small point; namely, a welcome for the Bill's provision retaining the derogation from Article 5.3 in respect of detention. I pass lightly over that because it is not the main thrust, or anything like it, of your Lordships' consideration of the Bill. In my respectful opinion, it is necessary. Notwithstanding the great importance of the general principle of ensuring that people who are detained as suspects shall be released promptly or charged promptly, as regards terrorism related to the affairs of Northern Ireland, we need the provision that is on our statute book: that people may, under stringent conditions which are scrupulously enforced, be able to be detained for five days for investigatory purposes in addition to the 48 hours which are accounted for in right of arrest.
I am sorry to say that that is the only provision in the Bill which I can wholeheartedly welcome. That is not because I am other than wholly in favour of the Convention on Human Rights; wholly in favour and proud of the fact that our country was the first to ratify the convention in 1951; and wholly in favour of the fact that in 1967 we accorded the right of individual petition to our fellow citizens. Those are important aspects and it is right that they should continue.
However, I am also a firm admirer of our judiciary and the limitations that our constitutional practice has placed upon its work. Those limitations have preserved the judiciary from any perceived taint of partiality, especially in controversial fields of political policy. That is important and we want to risk it only after the greatest care and consideration.
It is important because it bears upon the need for the public to retain confidence that the judiciary is altogether impartial. That is nowhere more important than in the case of the disappointed litigant. It is important that he leaves the court believing that the judiciary is altogether impartial. He may believe that the judiciary did not understand the case—perhaps that is par for the course—but he should never believe that because of a perceived taint of partiality the judiciary could never have been expected to find in his favour.
That must continue. My grave fear is that if we require our judges to undertake the additional tasks provided for in the Bill—in shorthand, they can be said to interpret and apply the provisions of the convention—by reason of the broad brush conceptual language, referred to by the right reverend Prelate, confidence will diminish not because of what the judges will do to the convention but what the convention will do to the judges. As I look at some of the most distinguished 1262 representatives, I say with the greatest respect that I do not believe that the judges are in the strongest position to recognise what the convention may do to them—
§ Lord Lester of Herne Hill
My Lords, I thank the noble and learned Lord for giving way. Perhaps he will explain a point which puzzles me when I hear the argument that he has made. What on earth is wrong with our British judges which disqualifies them from performing the role when the judges of almost every other Commonwealth and European country perform the role of interpreting the broad language of constitutional guarantees of human rights as required by the Bill? Why are our judges uniquely disqualified'? What is the threat to them which does not apply to the judges of, for example, India, Canada, New Zealand or the rest of the Commonwealth?
§ Lord Mayhew of Twysden
My Lords, I have a good passage which I was reserving for the end of my speech which deals with that, but I shall gladly promote it. Of course, the argument is not all one way—all black or all white—and in some circumstances when one is setting up a newly-independent country it makes every sense to have a provision such as that mentioned by the noble Lord. However, I believe that there is no country in which the judiciary has been so successfully and carefully protected from "political involvement". Furthermore, there is no country whose judges are more widely admired for their political impartiality. Therefore, one must achieve a balance between risking that and the advantages that will be gained. I agree with my noble friend Lord Waddington when he asked what are the lacunae in the protection of our people which are said to justify the Bill.
It is necessary in a newly independent country, set up with a constitution no doubt drafted by the noble Lord, Lord Lester, with his customary skill, but it is not proven to me that the risk of exposing the judges to the taint of political partiality is justified by the advantages which will be gained. Article 11 dealing with freedom of association, for example, will inevitably bring the judges into the whole issue of the closed shop and collective bargaining. Inevitably Article 2, the right to life, will in time bring the judges into expressing views and making choices about the compatibility of our statutory law on abortion. The point is that they will have to make choices which are political.
Each of the articles requires a balance to be established between one public interest and another which conflicts with it. That is different from the point made by the noble and learned Lord, Lord Scarman. It is different from the choices they have to make when they develop the common law. It is different from the choices they make when they exercise the judge-made and judge-invented jurisdiction of judicial review. It is right that many of the cases subject to judicial review are of political interest, but the choices are not political in character. The choices which they will have to make by reason of the necessarily broad brush language of the convention will unarguably be political in character.
The high watermark of the argument will be the question: why should not British judges deal with these matters? It is a strong issue about which one must think 1263 carefully. It is said that it is better to let our judges play their part in shaping the convention's development. I acknowledge that argument, but I suggest that it is not strong enough to warrant the damage which is inherent to the reputation of our judiciary. As has already been mentioned, sooner or later people will suspect that a judge has been appointed not by reason of his judicial capabilities but because in the eye of the government of the day he is sound on abortion or the closed shop. Those thoughts need to be considered. They are serious and I am grateful to have had the opportunity to utter them.
It is said that incorporation will concentrate the minds of Ministers and officials, but in my experience that is already the case. For nine years I was a Law Officer of the Crown and had that privilege. I must say that I thought that it was a bourn from which no political traveller returned, but I was a fortunate exception. Throughout that time, we all always made it a point of honour to insist that our legislation and choices of executive action were made by reference to and in respect of our international obligations certainly to the Convention on Human Rights. I do not believe that our record as a country is that bad, considering that at an early stage we gave the right of individual petition and considering the plague of terrorism with which we have had to contend for more than 25 years, coping with people who have no respect for any rights of anybody whatever.
It is said that it takes a long time to get to Strasbourg but that that could be done much more quickly were that court and commission to reform their practices. I hope to hear from the noble Lord who is to wind up what are the Government's proposals in that regard. The previous government had some proposals.
Of course, this is not an easy matter. However, I have very grave anxieties about the dangers, which I have tried to express. After listening with deep admiration to speeches from all sides today, I remain of the view that the balance of safety comes down firmly against bringing those, to my mind, dangerous duties home to the judges.
§ 5.50 p.m.
§ Lord Kirkhill
My Lords, I shall say a few words to welcome this Bill. I believe that even the most extreme ultra-nationalist or ultimate anti-European should also welcome the Bill. For this time, we do not give away any of our national sovereign powers to European institutions. Instead, we grant powers to the British courts which the European Commission and the European Court of Human Rights in Strasbourg already have.
It is a sensible measure and, as has been said by a number of speakers, we might have done it earlier: in 1951 when the United Kingdom ratified the convention; or in 1966 when we recognised the right to individual petition to the Strasbourg organs; or, indeed, some 10 years ago when the deficiencies of the present system became abundantly clear. It might have saved our country some awkward and unnecessary condemnations by the human rights court; and it might have saved the 1264 applicants from taking the long and hard road to Strasbourg, as my right honourable friend the Home Secretary expressed the matter recently. In particular, it might have saved the litigants the expense which taking that road to Strasbourg inevitably involves. Indeed, in my view, we must always consider the interests of those who rightly or wrongly seek redress for decisions which they consider to be unjust.
As has already been said, the road to Strasbourg can be long, hard and expensive for applicants. But so it is also for the Government. As the excellent Command Paper by the Home Office states, once all domestic remedies have been exhausted, it takes some five years for an application to go before the European Court and it costs an average of £30,000 per application. Therefore, we shall save that money if British judges are applying the convention's provisions and if litigants feel that it is no longer necessary to go to Strasbourg. Therefore, the Bill can be welcomed by those who feel that governments are always spending more and are never sufficiently cutting expenditure.
The Human Rights Bill will now subsume into the law of the land the provisions of the human rights convention by which we are bound in any event since its ratification in 1951. Although we were the first member country of the Council of Europe to ratify the convention, we are among the last to make sure that our national judges can apply it directly.
Other countries have solved that problem either in the way that we are now about to do or because their constitution may provide for the supremacy of international law over national law or, indeed, by other means. For example, Dutch and French judges and some judges from other member states of the council have been able to settle cases in a manner in which our courts have had to leave, until now, to the Strasbourg organs.
In addition, the judiciary in our country should have ample reason to be satisfied with the Bill. Becoming acquainted with the convention itself will not be a heavy assignment, but of course one must study also the doctrine around it and the jurisprudence not only of the commission and court in Strasbourg but also that of national courts in other member states of the Council of Europe. Thus it is justified to provide some kind of training for judges, magistrates and tribunal members who may have to handle aspects of the convention.
We in Parliament should also be pleased. As the noble and learned Lord the Lord Chancellor said in his opening remarks, the Bill does not make us subordinate to the courts which cannot strike out our Acts by declaring them null and void when it is considered that they violate the convention. As we have heard, the courts will have to limit themselves to a declaration of incompatibility. Therefore, I submit that it is clear that those who are concerned about the prerogatives of Westminster should perhaps not exaggerate their fears in that regard.
Finally, all those who take to heart the protection of human rights in this country should greatly welcome the Bill. I hope that they do. After all, the protection of human rights may be considered to be almost a British invention, as is the case in relation to international 1265 protection, going back to the Atlantic Charter when Britain and the United States joined hands. In addition, we took a very active part in the elaboration of the European Court itself. Our influence at that time was such that General de Gaulle did not want France to become a party to the then treaty because he considered it to be too Anglo-Saxon in concept.
Since 1951, a number of additional protocols have been added to the convention, each one of which contains a number of additional substantial provisions. This country ratified the first protocol but there are three others outstanding. In that regard, I should like to encourage the Government to proceed with the ratification of Protocol 7, as I believe is their declared intention.
Therefore, there are some additional protocols to the convention which aim to widen its scope by adding new rights and freedoms to those it already protects. Moreover, there are also a number of protocols to modify the convention's procedures. The last such protocol, Protocol 11, will change profoundly its structures. That protocol has now been ratified by 38 of the 40 contracting parties. The two countries which have not ratified are Russia and Croatia. The effect of the implementation of the protocol will be to institute a full-time Court of Human Rights in Strasbourg, thus doing away with the present part-time commission and court.
Also, there will be one judge appointed from each contracting party. An ad hoc committee, which I shall chair, of the Legal Committee of the Parliamentary Assembly of the Council of Europe, has been formed to interview, at the last count, 114 aspiring judges. To that end, we shall meet for two periods in Paris lasting for many days on each occasion.
The point which I wish to emphasise to your Lordships is that that has never been done before. The Parliamentary Assembly merely ratified, as it were on the nod, whichever particular judge was thrown to it. The Parliamentary Assembly is therefore taking very seriously its responsibilities in regard to the appointment of the new judges to the new full-time court. Of course, those judges will have to take up permanent residence in Strasbourg, which is not the case at present.
Therefore, I believe that at Council of Europe level, there is an attempt to modify in the light of the continuing trends. I welcome the Bill and hope that it will have a very fair wind in your Lordships' House.
§ 6 p.m.
§ Lord McCluskey
My Lords, one feature of most charters on human rights is that minorities are allowed to be heard. I am rather glad about that because during the course of this debate I am beginning to find myself in quite a small minority. Like the noble Lord, Lord Waddington and the noble and learned Lord, Lord Mayhew, I cannot extend a warm welcome to the Bill, despite the fact that I have been practising the law for 49 years and have been a judge in Scotland for almost 13. Perhaps I may make one little point to show that there are two sides to the argument. The United States 1266 introduced a Bill of Rights 200 years ago. The most celebrated case in this century in the USA—where there is direct application of the constitution—was the Gideon case. From the time of his conviction to the overturning of it on the grounds of contravention of his human rights, it took 37 years. So direct access to a convention or a charter does not necessarily mean that one moves swiftly. The Dred Scott case of last century was overturned rather more swiftly, but in that case it took a civil war to do so. Therefore, direct access to Bills of Rights and the rights contained in them is not necessarily a guarantee.
My opposition to incorporation into our domestic law of the convention is of long standing. In 1986 I had the honour and privilege of being invited by the BBC to deliver the Reith Lectures of that year. They were later published under the compendious title of, "Law, Justice and Democracy". Lord Elwyn-Jones asked at the time, "Is that all?". Indeed, that was all. The theme was that, by enacting a Bill of Rights, we would be doing something which was quite unnecessary, having regard to our traditions and our success in relation to delivering human rights.
However, my opposition is not based on a distaste for human rights; indeed, I am a strong defender of them. I am the vice-chairman of the Human Rights Institute of the International Bar Association. I am strongly in favour of human civil and political rights, especially if they are defined with clarity and precision. I echo the point made by the noble Lord, Lord Waddington, that when one comes to what he described as vague and imprecise rights, one is doing something quite different from conferring a precise, well-defined, achievable and realisable right.
The present Bill does a great deal to achieve a remarkable and reasonable compromise. However, I still believe that it offends against points of fundamental principle. By incorporating into our domestic law vague, imprecise and high sounding statements of legal rights, we hand what is truly legislative power away from a democratic and accountable Parliament to an appointed, unelected and unaccountable judiciary. No doubt the latter will be composed of distinguished men—indeed, that applies to some, many or most of them—but they will be successful lawyers with very limited democratic credentials and experience.
The White Paper is perfectly explicit about what is happening in that regard. I shall quote from two passages in the document. Paragraph 2.5 says:The Convention is often described as a 'living instrument' because it is interpreted by the European Court in the light of present day conditions and therefore reflects changing social attitudes and the changes in the circumstances of society. In future our judges will be able to contribute to this dynamic and evolving interpretation of the Convention. In particular, our courts will be required to balance the protection of individuals' fundamental rights against the demands of the general interest of the community".What kind of a job is that to give to judges? That is a job which ought to be left to democratically accountable Members of Parliament.
1267 In paragraph 2.8, the White Paper also says:This 'rule of construction' is to apply to past as well as to future legislation … the courts will not be bound by previous interpretations. They will be able to build a new body of case law, taking into account the Convention rights".We should not run away from the fact that this is empowering judicial legislation. Of course the judges will not possess quite the same power here as they do in the United States or in other places, but the effect will be exactly the same. Elsewhere in the White Paper it is made abundantly plain that in almost every case—and I know of no exception—Parliament will at once move to bring the law into line with what judges say the convention says it is. In fact, Parliament has no option if the Strasbourg Court so decides. The certain aim of British judges will be to interpret the convention in the way that they think the Strasbourg Court will. Otherwise, they will be overturned in Strasbourg.
I believe that such matters are most important. In the Reith Lectures I wrote the following:A constitutional Bill of rights … is inevitably a charter of enduring super-rights, rights written in delphic words but in indelible ink on an opaque surface. It turns judges into legislators and gives them a finality which our whole tradition has hitherto professed to withhold from them. It makes the mistake of dressing up policy choices as if they were legal choices. It asks those whose job it is to know and apply the law to create and reform the law. It requires those whose skill it is to know what the law is to decide what the law should be".Our tradition is to legislate in terms which are as precise and exact as the English language and human foresight can achieve. I know that the noble Lord, Lord Renton, chaired a distinguished committee which looked at the form of our legislation and I believe that it favoured the precise definition of our right. However, charters of human rights, especially when they must reflect the competing interests and different perspectives of different countries—as in the European situation, which encompasses different groups, different traditions, different religious and moral perspectives and also different nation states—come to be written in broad, imprecise and ill-defined language.
I believe that I am merely echoing what has been said elsewhere, but such charters are inevitably full of vague expressions, like the American one, "due process", which has been productive of thousands—indeed, tens of thousands—of decisions which have enacted judicial legislation. We also have in the present case words like "promptly", "a reasonable time", "in the interests of justice" and the one that has been mentioned by several noble Lords which appears in Articles 8, 9, 10 and 11; namely, "necessary in a democratic society, in the interests of national security and public safety", or even, "the economic well-being of the country". So judges decide whether a derogation from the stated right is in the interests of the economic well-being of this country. In my judgment that is not a matter for judges. When one puts Delphic words into charters, one then needs to ask someone what those words mean. It is like going to the Oracle to ask what it means. The high priest will answer and will tell you what it means. However, unless one is a fool, one realises that it is the judge—or the high priest—who is telling you what it means. Indeed, the Oracle is relatively silent.
1268 Our courts will soon have to decide, here or perhaps in Strasbourg, whether homosexual men can marry—I believe that question has already been before the European Court on two occasions—and whether members of an allegedly extremist party, like the Communist Party, can join the government service or be excluded from it. The Court has already addressed on several occasions the grant or refusal of legal aid and, therefore, our legal aid system is subject to the charter. The court has already addressed on more than one occasion the question as to whether schoolchildren can be strapped, and the legality of abortion is waiting in the wings to be settled by the courts, as in the United States, instead of by the elected Parliament.
I shall quote from de Tocqueville in his observation 150 years ago. He said of the US Supreme Court that,scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question".In 1955 Daniel Boorstin said:The Supreme Court has become the American political conscience, a kind of secular papacy, a new search in every generation for what the more large-minded and more foresighted of the Founders might have meant if they were alive".That was in 1955. Since then, we have had two terms of Reagan, one term of Bush and of course we had Nixon. Each of those presidents said that they were going to change the character of the court and that they must have people in it of the right disposition of mind. Nixon promised judges who would be different. At the Republican Party convention of 1980 a pledge was given to work for the appointment of judges who respected innocent human life and were in favour of law and order. That meant that they had to be against abortion and in favour of capital punishment. Therefore judges were chosen with a view to obtaining what was in the view of that party the right kind of results.
I have the greatest possible respect for British judges; many of them are my best friends. However, that does not lead me to give them tasks which they are not well qualified to perform. Inevitably, they will become politicised. I have one further quotation from the excellent work which I am afraid is no longer in print, Law, Justice and Democracy, which states:A Bill of rights embodies semi-permanent choices between the conflicting interests of citizens. And to present such choices as if they are the gratuitous enlargement of the human rights of all is to misuse language. Rights are not to be regarded as if they were roses without thorns".That still encapsulates the view which I have reached.
I wish to draw attention to the extremely important matter of the hidden cost of this legislation. In future no lawyer will be able to advise a client on any matter which might involve a public authority without studying not just the European jurisprudence—as he will read the Strasbourg report as I have done—but also American case law, Canadian case law and even Indian case law and Australian and New Zealand case law. Each lawyer will have to instruct his own mind before he can advise his client. We judges know almost nothing of European law. As regards Clause 2 of the Bill, I do not even know how to gain access to some documents in relation to decisions of the Committee of Ministers. As I say, there is, therefore, a considerable hidden cost in this Bill.
1269 Further, we in Scotland are plagued—I believe it is even worse in England—by the party litigant. I refer to the man who is consumed with a passion for his own case. This kind of charter provides him with an enormous opportunity to come to court and say, "I have a fundamental human right and I want to vindicate it". As a senator in Canada said of the Canadian charter of rights, it provides,a field day for crackpots, a pain in the neck for judges and a gold mine for lawyers".That is the view that I take.
§ 6.13 p.m.
§ Lord Beloff
My Lords, the noble and learned Lord who has just spoken will not be surprised to find that I, as an admirer of his writings for a long time, join him in what appears, alas, to be a minority. My view of the Bill before us can be summed up in three words: silly, unnecessary and dangerous. My reasons are the following. It departs altogether from what has been the normal practice of Parliament through the ages. What does Parliament do? It is told that there is something wrong in the body politic; that there is some mischief which requires legislation to correct. That is Parliament's business. So surely the authors of a Bill which intends to deal with human rights should have begun by saying, "There is in the United Kingdom a disastrous deficiency in the sphere of human rights". No such claim has been made or illustrated by any of the noble Lords who have spoken in favour of this Bill.
Further, they should have stated that this lacuna is to be remedied by the incorporation of the European convention. But then, surely, the next point that should have been made would have been to provide illustrations of countries which have incorporated the convention and where it can be demonstrated that the protection of human rights is much greater than it is in this country. However, no such evidence has been produced. Would it not have been proper—the new Government are keen on pre-legislative inquiries—to send an inquiry team to a number of European countries which I shall not specify where human rights might be thought, even with the incorporation, to be in much less good shape than they are in this country? Therefore it seems to me that no case has yet been made out for the Bill on the lines which normal legislation would require of a government.
There have been various other interesting gaps in the considerations that we have been offered. Much has been made of the fact that the authors of the text of this convention were largely British. That is true but what does that show? It shows that at the end of the war and the end of the occupation of Europe by Nazi and Fascist tyranny people looked to Britain as a country in which human rights had been preserved and where they now sought to find an instrument which might prevent those horrors recurring. Unlike many of your Lordships, I was around at that time. In other words, it was never thought that the convention should be applied to democratic countries, least of all the United Kingdom. It was thought that this was to be something which would be 1270 held up as an example to the newly liberated countries as to the kind of apparatus they would require to prevent these horrors recurring.
My Lords, it so happens that not only was I a delegate to the Council of Europe at that time in 1951 and 1952 but I was on the legal affairs committee as well. Incidentally, I had to play some part in helping to formulate the constitution of the Court of Human Rights. I can assure the noble Lord that at that time this was not merely considered as a matter between governments; it was a matter on which we wished to protect the interests of all the people of all the countries represented at the Council of Europe.
§ Lord Beloff
My Lords, that was not how it was presented in this country at that time. What a number of lawyers may have thought among themselves is, of course, of great interest—one is always glad to have the historical reminiscences of the noble Lord, Lord Renton—but if one asked people in this country a decade afterwards, "Are your human rights safeguarded by signature to a convention, or are they safeguarded by Magna Carta and the revolution of 1688?" any schoolboy could have given the correct answer.
Therefore it is a quite extraordinary thought that in a country where on the whole no one has yet been able to demonstrate where this absence of human rights is to be found, we should now be told that we need to incorporate a document whose very generalities reflect the situation then. If we were drawing up something now, obviously we would be more precise and we would avoid these contradictions. But, when it was merely a measure intended to hold up a beacon to the newly liberated countries of Europe, that was not required.
The only serious argument is that at present it is possible for litigants who think that they have been aggrieved to go initially to a court in Strasbourg. That is an expensive and time-consuming procedure. Far be it for me to say anything in favour of the Strasbourg court, for which I have minimal respect ever since it ruined our secondary education in this country by its absurd decision outlawing corporal punishment. All the troubles that the Government now find in schools, all the things that the Home Secretary and the Secretary of State for Education are so anxious to correct, all the assaults on teachers by pupils and parents, stem from that original folly, which unfortunately the noble Lord, Lord Joseph, then the Secretary of State for Education, thought it his obligation to bring into our law.
Nevertheless, there it is. It is said that if we adopt this convention at least we shall save litigants this trek to that court. But it has already been made clear by the noble Lord, Lord Kirkhill, and others that it is nothing of the kind. If litigants are dissatisfied with what the British courts do when they appeal to them on the basis of the convention, there is nothing in the Bill which prevents the litigant from saying, "I happen to be a wealthy man. I can afford it. I shall go to Strasbourg just the same". If one is intent on protecting British litigants from this exhausting, costly pursuit, I fear that some far more radical measures will be required. One measure would be to say—on the whole I say it; I have 1271 in some sense said it already—that the convention is a historical monument: it bears no relation to the present and we might as well say that we are withdrawing from it—the rebus not sic stantibus any more. I do not think that there would be enormous gales of indignation in this country if that were done.
The other measure would be slightly less dramatic in international terms: to revive the excellent statute of 1353, the statute of praemunire, by which it was declared that anyone taking a case to a foreign court which should have been submitted to His Majesty's courts would be in danger of having his possessions confiscated and being outlawed. That, I think, would be a considerable deterrent to the persistent litigant.
I hope, therefore, that, Salisbury Convention or no Salisbury Convention, in this place or in another place, this Bill will not find its way on to the statute book. At that point we should consider seriously important issues. They may not bear directly on human rights in the old fashioned sense. They may not be issues of life, liberty and the pursuit of happiness, and the rest of the American Declaration of Independence, to which the right reverend Prelate rightly referred us, but they are questions of discrimination and other matters for which two commissions exist, as the noble Baroness, Lady Amos, reminded us. There may well be a case for a commission to look at other possible minor infractions. I do not refer to infractions of human rights in the sense in which those rights are disregarded in a country such as Iran, to which we have been looking in recent weeks, but those issues which in a fully just society should not be allowed to continue. If the Government would come forward with positive legislation, and not with the incorporation of this out of date, generalised and useless document, they would even have my support.
§ 6.25 p.m.
§ Lord Cooke of Thorndon
My Lords, not being a frequent speaker in your Lordships' House it perhaps behoves me to mention such credentials as I have for troubling your Lordships with a few thoughts about this Bill. It is a Bill whose significance extends even beyond the United Kingdom and Europe, for it signifies the adherence of the United Kingdom to the international movement towards the national codification of human rights: a movement which answers the aspirations of peoples and takes its origins from the aspirations of peoples. The very existence of such a movement may be seen to refute the arguments about handing political power to the judges, vague generalities and so forth, which a number of noble Lords have with no little vigour and even charm put to your Lordships today. When the Bill is enacted, it is significant that, of the older Commonwealth countries, only Australia will be without some general enforceable affirmation of state guaranteed human rights.
As for my credentials, though modest they are at least varied, extending from six years of judicial breaking in of the New Zealand Bill of Rights 1990 to somewhat similar experience in Samoa, Fiji and the Cook Islands. Those are small jurisdictions, but the smallness of the jurisdiction is no reflection of the difficulty of applying human rights. It presents a real but necessary challenge
1272 to the judge. Now, having had some small experience of the Hong Kong Bill of Rights, it may fall to me in company with some other Members of your Lordships' House to play a part in that field in the future in a significantly different constitutional setting.
Each of those lands has evolved its own partly distinctive Bill of Rights; and in turn the United Kingdom Bill will be partly distinctive again. The United Kingdom Bill has limited aims. For instance, it is tied to the rather elderly European convention, taking no notice of international developments since. Again, it does not itself lay claim to comply with Article 13 of that convention, which guarantees to everyone an effective remedy before a national authority. That omission is perhaps to be explained as a matter of drafting technique, but it may not be clear that even the Government are making that claim. I say as much subject to anything that may fall from the noble Lord, Lord Williams of Mostyn, when he replies to the debate. Human rights organisations raise various other points.
I believe, however, that the shortcomings of the Bill—and there are some—are far outweighed by its merits and that it may well prove to have real bite. I believe this for two reasons. The first is the express empowerment of the higher courts to make a declaration of incompatibility. Such express power is not given in the New Zealand Bill of Rights, under which, as was accurately summarised by the noble Lord, Lord Kingsland, sufficiently clear legislation overrides the affirmed rights. As a judge, I feared that the courts might seem to come into conflict with Parliament if they declared that an Act was clear and overriding but nonetheless a violation. Happily, that fear will not exist in the United Kingdom because of Parliament's authorisation of such declarations. Nor does it seem likely that a declaration will be a mere bruturn fulmen, if one from the Antipodes may be forgiven what has been called "the worst type of Latinism in the law". It is true that the power of a Minister to make remedial orders is neither expressed as a duty nor restricted in time; nor of course is the power of Parliament—but reasonable expedition would appear to be the essence of the concept in Clauses 10, 11 and 12; they breathe it. And if a national court has made a declaration of incompatibility and expeditious remedial steps have not followed, will not that state of affairs amount to a plain invitation to a journey to Strasbourg? After all, as was pointed out, the European Court of Human Rights retains all its power and can always have the last word. That in itself may well be a strong incentive towards adopting compatible interpretations in this jurisdiction.
Secondly, let us consider the language of Clause 3(1):So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights".The clause will require a very different approach to interpretation from that to which United Kingdom courts are accustomed. Traditionally, the search has been for the true meaning; now it will be for a possible meaning that would prevent the making of a declaration of incompatibility.
1273 If there is one capacity in which lawyers are unsurpassed, it lies in discerning various possible meanings in words. Last week, your Lordships' Appellate Committee spent much of three and a half days considering the possible meanings of the word "act" in the phrase, "act, fault or neglect". One possible outcome is that for the time being it would be premature to give any definite answer. The week before, the Judicial Committee of the Privy Council spent much of two days considering the possible meanings of the word "a" in the phrase, "a registered trade mark". One possible outcome is that no particular significance attaches to "a".
The shift of the criterion to a search for possible compatible meanings will confront the courts with delicate responsibilities. Even for lawyers, a must is a must. For surely the difference between mandatory and directory provisions can have no place in interpreting the Human Rights Act, which will itself be primary legislation. Consider, say, an Act making a certain kind of disclosure a criminal offence, enacting one specific defence, but not specifically excluding a defence under Article 10 (freedom to impart information). Without expressing any opinion as to the outcome, one can see that there will be a new kind of problem. In effect, the courts are being asked to solve these problems by applying a rebuttable presumption in favour of the convention rights.
Clause 3(1) is, if anything, slightly stronger than the corresponding New Zealand section. If it is scrupulously complied with, in a major field the common law approach to statutory interpretation will never be the same again; moreover, this will prove a powerful Bill indeed.
§ 6.36 p.m.
§ Lord Tordoff
My Lords, after that erudite exposition from down under and other places, I fear that my remarks will appear much more mundane. I tore up my speech at one stage this afternoon, found it again and am about to tear it up again—mainly because my fox has been shot by both the noble and learned Lord the Lord Chancellor and my noble friend Lord Lester of Herne Hill. However, as the time has worn on, I am not so sure.
I begin by declaring an interest in that I am a member of the Press Complaints Commission. Noble Lords will therefore probably understand what I am about to talk about now even if they do not understand when I have finished. A few years ago I remember the Deputy Chief Whip coming to the Dispatch Box one afternoon and saying that he regretted that the Chief Whip was not able to be there because he was on a course. We all knew, of course, that it was the day of the Cheltenham Gold Cup. The noble Lord, Lord Wakeham, very much wanted to be in his place, but unfortunately he is in Melbourne.
I thought that my noble friend Lord Lester of Herne Hill was rather severe on the noble Lord, Lord Wakeham, who is chairman of the Press Complaints Commission. To refer to the noble Lord's article as"
1274 intemperate" was going a bit far. However, when my noble friend finished I thought I understood where the noble Lord, Lord Wakeham, was possibly wrong and where the Press Complaints Commission had been badly advised. As I say, I am now not so sure.
I thought that we should be most grateful for the words from the noble and learned Lord on the Woolsack on the question of privacy—not least because he was complimentary to the Press Complaints Commission, but also because he appeared to set at rest some of the fears that we had. But listening to other noble and learned Lords I am now not quite so sure. The noble and learned Lord, Lord Simon of Glaisdale, touched on a worry that we had had that it might be possible, via injunctions against the Press Complaints Commission, to get at the press in that way whereas the press itself could not be tackled under the Bill when it becomes an Act.
It is that indecision which is worrying for journalists. The Press Complaints Commission does not exist in order to bolster up journalists and newspaper editors. It does, however, exist to ensure that freedom of speech is upheld in this country while at the same time privacy is maintained. On the face of it, Articles 8 and 10 are utterly incompatible in this regard in certain cases. The noble Lord, Lord Lester, has made it clear that there is sufficient case history in Strasbourg so that we need not worry about that; but we do not know what will happen when these matters get into the English courts.
Imagine that you are an investigative journalist with a piece of hot news which may involve privacy. How can you be sure which way the courts will come down, if that is the way we are going to go? I believe it is because of that as much as anything that people like Mr. Alan Rusbridger, editor of the Guardian, have been calling for a privacy law to give certainty to the situation rather than allow it to be handled through the Bill.
You will not be surprised to hear that I believe that it will be far better that the matter should be left in the hands of the Press Complaints Commission unless it can be shown that that commission is failing. I do not believe it is. I think there has been considerable exaggeration over the problems of privacy. The commission has something like 3,000 complaints a year in toto, covering all sorts of things, including harassment and problems of children being approached when they should not be. A whole raft of complaints comes to us. Only one in eight refers to privacy.
I do not say that we send satisfied customers away even in those cases; there are those who want their privacy so that they can go on doing something nasty, just as Mr. Robert Maxwell used the libel laws to enable him to go on doing something nasty. There are also those who have a genuine misunderstanding—for instance, people who complain that their address has been given by newspapers when it is already on public record as a result of having been mentioned in court or at an inquest. Many of these cases are very sad, but the fact is that a lot of these people are not having their privacy invaded by the newspapers. In so far as it has been invaded, it has already been invaded by the courts.
1275 After I had listened to the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Lester, I was inclined to think that we were worrying about nothing. Having heard so many other speeches today, I am less certain of that. I am sure that we shall have to come back to this at Committee stage, when I have no doubt that the noble Lord, Lord Wakeham, will speak on behalf of the Press Complaints Commission.
§ Lord Lester of Herne Hill
My Lords, before the noble Lord sits down, perhaps I may make it clear that when I referred to the uncharacteristically intemperate remarks of the noble Lord, Lord Wakeham, I was referring to the reference to a villain's charter and the suggestion that the right to privacy was absolute and would gag the press. Of course, I did not mean to suggest in any way that the article did not deserve careful study or that the noble Lord, Lord Wakeham, was other than a dispassionate arbiter between the two public interests.
§ 6.43 p.m.
§ Lord Borrie
My Lords, the noble and learned Lord the Lord Chancellor deserves to be congratulated on bringing the Bill to the House so expeditiously after the general election. Congratulating the noble and learned Lord the Lord Chancellor in no way diminishes my regard for the work of the noble Lord, Lord Lester of Herne Hill, in this field for many years. I believe he must be very pleased with the outcome. I also congratulate my noble friend Lady Amos on her extremely competent and valuable speech from her experience as chief executive of the Equal Opportunities Commission, which is, I believe, doing at least part of the work of the human rights commission which she would dearly love to see created.
There has for some time been a growing movement for incorporating into UK law the European Convention on Human Rights. I would say more about this if the noble Lord, Lord Beloff, were here, but, as he is not, I will simply say that I believe that the main point of the Bill is to ensure that our judges are enabled from the word go to determine issues involving human rights.
Time and again over many years—and we have heard something of this in the debate—it has been the doctrine of the sovereignty of Parliament that has proved a major stumbling block to incorporating the convention into our law. The brilliant design of the Bill is to say that, while no court may strike down legislation on the ground that it infringes the convention, the High Court may make a declaration to that effect, after which Ministers are expected to come to Parliament via the so-called fast-track procedure and amend the legislation so that it conforms to the convention.
If that works as seems to be intended by the Bill, the political reality will be that, while historically the courts have sought to carry out the will of Parliament, in the field of human rights Parliament will carry out the will of the courts. I realise that the Bill does not say that Ministers must follow the fast-track procedure if the High Court has declared that a statute contravenes the convention; it does not say that Parliament, through its two Houses, must pass the affirmative resolution put
1276 before it; but the intention of the Bill surely is that government and Parliament will faithfully implement any declaratory judgment made by the High Court. I quote from paragraph 2.10 of the White Paper:A declaration … will almost certainly prompt the Government and Parliament to change the law".The likelihood of blatant infringement of the convention by a UK government or UK government-promoted legislation is no doubt unlikely so far as future legislation is concerned. There is indeed a triple lock, or a triple deterrent, on any government promoting legislation which may infringe the convention. First, Ministers must state when introducing a Bill whether it is compatible with the convention. Secondly, the courts must interpret the legislation so that, as far as possible, it is compatible with the convention and, if that is impossible, a formal declaration may be made that it is incompatible. Thirdly, the European Court may do likewise. Up till now only the last of those three deterrents has been in place.
As we all know, the real problems arise when courts have to interpret the qualifications expressed in the covenant to the specified human rights and when one right appears to be in conflict with another. Several of your Lordships have pointed out this afternoon the conflict which may arise between the right of privacy and the right of freedom of expression. I should like to mention a conflict which has not been referred to this afternoon: the conflict which may arise between the right of freedom of expression and the right to a fair trial.
The great bulk of our UK law on contempt of court—both common law and the Contempt of Court Act 1981—is concerned with the kind of thing that several of your Lordships have talked about in relation to this convention—namely, with striking a balance. In my example, the balance is between the right of freedom of expression and comment about the accused and the right to a fair trial. It is not a new concept, but one has to accept that, if the convention becomes law, the balance may be struck at a different point.
In 1973, the House of Lords in its judicial capacity granted an injunction to prevent the Sunday Times from publishing an article concerning the thalidomide tragedy at a time when several court actions on behalf of the child victims of the drug were being negotiated with the British marketers, Distillers, with a view to an out-of-court settlement. The House of Lords' judgment was based on the view that "trial by newspaper" prejudged issues that were before the courts. (I apologise to the noble and learned Lord, Lord Simon of Glaisdale, who gave one of the leading judgments in that case, for my oversimplification of the judgment.)
The Sunday Times—not being satisfied with that judgment—petitioned the ECHR which ruled that the injunction violated Article 10 of the convention. Inevitably, argument in the European Court of Human Rights turned on the qualification allowed in Article 10 to the right of freedom of expression; namely, was the restriction "necessary" for maintaining the authority of 1277 the judiciary? By a narrow margin of 11 to nine the European Court ruled that the restriction was not "necessary" for the purposes specified in Article 10.
I mention the narrow margin of 11 to nine specifically because I say to Her Majesty's Government that bringing rights home will not alter the fact that interpretation of the articles in the convention and the interpretation of the qualifications and conflicts between the articles will be just as difficult for our judges as they have often proved to be for the judges in the European Court of Human Rights.
I shall round up with a few questions to the Government. I had some difficulty in interpreting "public authority" in the Bill. The Bill says,It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights".The phrase "public authority" includes,any person certain of whose functions are functions of a public nature".According to the White Paper, that includes companies that were previously in the public sector, such as the privatised utilities. That strikes me today, in 1997, as a little odd because some of those private utilities—for example BT and British Gas—in providing their services to the UK public, are competing with other companies and that competition is encouraged. It is odd if one company in the field is considered to be a "public authority" and one of its competitors is not.
Then I wonder how far it is intended that the definition of "public authorities" in the Bill is meant to be paralleled with the range of private bodies that the courts have said in recent years are subject to proceedings for judicial review on the basis that they have a "public element". In the presence of the noble and learned Lord, Lord Donaldson of Lymington, I am bound to mention the City Takeover Panel, which was regarded as one of those bodies. I mention too the Advertising Standards Authority, which is a self-regulatory authority presided over by the noble Lord, Lord Rodgers of Quarry Bank.
Those bodies are performing functions that would be performed by statutory public bodies if the private self-regulatory bodies did not exist. The Advertising Standards Authority exercises an important jurisdiction. It has a lot of power over advertisements that are said to offend against the well-known rubric that advertisements must be,legal, decent, honest and truthful".Since the European Court of Human Rights has ruled in the past that freedom of expression in Article 10 includes the freedom of commercial expression—the freedom to advertise one's goods—I wonder whether its rulings could be challenged as not complying with the convention.
I commend the Bill but put forward the queries that I raised.
§ 6.55 p.m.
§ Lord Wilberforce
My Lords, the Government are to be warmly congratulated on the White Paper they 1278 presented to accompany the Bill. It is an extremely well-drafted document. It is well written in pleasant, readable style; it is comprehensive, clear and grapples with the main problems with which we are faced, even if we may not agree with all the solutions. I regret only that we have not had more time to consider it. There has been an exceptionally short interval between its presentation and the presentation of the Bill to enable those of us who are rather dull and slow of understanding to master our arguments. But my congratulations on the form of the document are sincere.
The Bill is presented as a great constitutional advance, as a great movement of freedom, in resounding phrases relating to our civil rights and fundamental freedoms. And that is right. That has been true of other considerations and other Bills of this nature. However, it is important to realise that this is the crunch date. This Bill will be passed; it will be made part of the law of the land and its carefully drafted phrases will have to be applied by judges throughout the land—from the House of Lords right down to the circuit judges; it will have to be considered by Ministers and officials in preparing legislation and must be looked at much more carefully than we have felt it necessary to look at previous draft enactments of this kind. It is surely right therefore that we should look, as several noble Lords endeavoured to do, at the problems it creates to see whether we can identify them in order, first, that we may know what we are doing and the British public understand what we are doing; and, secondly, that so far as is possible we may try to mitigate some of those problems in the course of the Committee and later stages of the Bill.
This has been said in part but noble Lords will forgive me if I say it again in slightly different words. It is essential in considering this Bill to recollect that the European Convention on Human Rights started life as an international convention at the end of the war. It was an agreement between states as to the standards of values to be observed by all countries in the future. The noble Lord, Lord Beloff, made that point extremely well.
One only has to look at the document to know that that is so. They had their eyes firmly on what had been afflicting Europe in the previous five years—the loss of life in the concentration camps, arbitrary arrest (the Gestapo knocking at the door), torture and slavery, persecution for opinions and religion. Without entering into any historical arguments between the noble Lords, Lord Beloff and Lord Renton, I can pick up what was said by one of the most eminent British judges of the court about the convention. He said that it was a,collective guarantee to ensure that rules and their application are in accordance with primary principles of law as recognised by civilised nations".That reflects of course the language of the statute of the permanent court of international justice. It was regarded as a collective guarantee and I have no doubt that our delegates working on the text of the convention looked at it in that light. They did not regard it as laying down a charter for the UK or other states. I am glad that that is recognised by the White Paper at paragraph 1.11, which takes exactly that point.
1279 Moreover, it is interesting to note that one of our delegates, Mr. Ungoed Thomas as he then was, who was representing the Labour Party, vigorously opposed the idea that individuals should have rights under the convention which they could seek to enforce in the courts. It was not until many years later that the United Kingdom came round and accepted the right of individual petition. However, that was the position in 1950-51. Our delegates knew that all essential rights were confirmed to us by common law and there was never any intention that the new obligations by way of guarantee should be taken to supersede them.
Perhaps I may remind noble Lords of what our essential civil rights, as guaranteed by the common law, are: the presumption of innocence; the right to a fair hearing; no man to be obliged to testify against himself; the rule against double jeopardy; no retrospective legislation; no legislation to be given an effect contrary to international law—an old principle which has been there for years; freedom of expression; and freedom of association. All of those were in the minds of our delegates, firmly secured already by the common law to this country, and not intended to be superseded or modified by the new inter-state obligations in the convention.
Then, of course, evolution takes place. The right of individual petition is recognised and is exercised by many states. Many cases come before the court and the court gives decisions which are recognised and, remarkably, accepted by all the member states and their governments. So the demand for incorporation into national law gathers strength. The arguments for that—we all know them by now—are: greater access in terms of going straight to the court instead of going through the procedure in one's own tribunals. That is certainly a powerful argument, but not a total argument valid by itself and not to be weighed against others. Then we are told about "bringing home the rights". "Bringing home the rights" is a lovely phrase. It makes us think of the "Ashes", or perhaps the bacon. But when one gets away from the romantics, what it does is to superimpose an international instrument—no doubt partly drafted by British lawyers but intended as an international instrument and nothing else—on our existing system of common law and statute. That bring us to two main groups of problems.
The first is the question of parliamentary supremacy. I shall not say anything about that at this stage in the evening. It has been covered more than adequately by many speakers. For my part I shall be perfectly happy to accept the rather careful compromise, which has been worked out by the White Paper and the Bill, with perhaps a little consideration of the fast-track procedure, as to which I feel a few doubts. I am much more concerned with the substantive effect on English law of the Bill. Where is the beef? Perhaps I should say: where is the bacon? Another metaphor is: banners bake no bread. We want to know what the Bill is doing. Will United Kingdom citizens be better off, their liberties strengthened by new rights and by the exercise of powers by United Kingdom judges?
1280 Something has already been said on the list of rights. There is no doubt that the list is not adequate for modern states. This is now an ageing convention. It was drawn up for limited purposes and it has now been overtaken in many respects by United Nations covenants and other covenants such as the convention on the rights of children. Many necessary rights are omitted, as indeed the White Paper agrees. However, on the other hand, it is right to say that the evidence to the House of Lords Select Committee a few years ago revealed 12 new rights not protected by the common law which were conferred by the convention. So we are getting an advantage that way—12 new rights through the convention not protected by the common law.
On the other hand, quite a number of those recognised by the United Nations convention are not there. Some of them are dealt with in connection with Protocols 4, 6 and 7. However, I would agree respectfully with what the noble Lord, Lord Lester, said some years ago, that, in spite of that defect—in spite of the ageing character of the European convention—this represents an important first step towards a modern British Bill of Rights. I am prepared to go along with it on that basis.
One then comes to implementation or compliance. We have Clause 3, which has been much discussed, as to the interpretation of legislation. I venture to agree with the noble Lord, Lord Kingsland, on this point. Clause 3 does not really represent a very great advance on what already is the position under English law. Then we come to a point which has just been raised by the noble Lord, Lord Borrie, about public or private bodies. That problem has bedevilled the European court. It has never been able to take a firm position as to whether these rights are enforceable against private bodies as well as public bodies. The Bill does not take a very clear position. I agree with the noble Lord, Lord Borrie, that Clause 6 requires very careful examination. It is a little labyrinthine between functions and acts and between public and private. We shall have to look at it carefully at the Committee stage. Therefore, I shall not say more about it now.
My third point is perhaps the most important one. I refer to the very general language used in the convention, which has to be interpreted now by the courts. It will be said, "The European Court has had to grapple with this legislation for a great number of years. Why cannot the British courts do the same?" But it is quite a different matter. It is one thing to admit access to the European court and the commission after you have gone through all the domestic procedures and after the case has been sifted by the commission. It is one thing to have interpretations then made of provisions in the convention. But it is quite another thing to throw the convention, with all its words, on to the lap of all the judges in our country in connection with whatever dispute, criminal or civil, anyone may be able to think up as a case for incorporating the convention.
It has been said that this will bring the judges into politics. The word "politics" is slightly unfortunate. It calls upon the judges to perform functions which are normally suitable for Parliament rather than for the judiciary. There is no doubt that that will happen. I shall not go through the rights again. Many noble Lords,
1281 including the noble and learned Lords, Lord McCluskey and Lord Simon, have already dealt with them. However, there is no doubt that these vague phrases will have to be interpreted by the courts in connection with concrete cases. One thinks of immigration and the use of the word "family". Your Lordships may have seen a Written Answer last week to the noble Lord, Lord Tebbit, who asked what "family" means. Does "family" mean a man and a woman in marriage or a man and a woman in concubinage? Does it cover a man living with a man? Does it cover a woman living with a woman? Naturally the Government are not going to give a very clear answer to those various conundra. But such problems are bound to arise and, as many noble Lords have said, will put the judges in great difficulties. We have to face these difficulties if we are to be realistic.
It may be said, and will be said, that the courts will have the benefit of decisions of the European Court itself and of the commission—and of the new court when it is set up under Protocol 11. Clause 2 of the Bill says that account must be taken of any of their decisions. That will help a little, but one must not be too hopeful about it. Cases are dealt with by the European court on a case to case basis in relation to particular facts and it is properly reluctant to go beyond individual cases. Some assistance may be got there. Even so, the judges in our country will be left with difficult decisions on these difficult and ambiguous phrases.
We need not go so far as to fear the making of political appointments to the judiciary. That is a bogey which is not a real one. However, one cannot at the same time be oblivious to the vast swings of judgments which one finds in the United States, where the Supreme Court is given the power to decide these political questions between the different courts—the Vinson court, the Warren court or the Burger court. Those things do happen. People do change and there are swings of result according to the changes.
I hope that your Lordships will take these difficulties into consideration at the later stages of the Bill. We may be able to help a little—perhaps on the margin of appreciation, though I do not think I have time to go into that now.
I should like to make one final point which nobody else has yet made in relation to Clause 18, which deals with the appointment of judges to the European Court. I have had some personal experience of the difficulty which now exists when appointing judges to that court even on a temporary basis. I have no doubt that it is absolutely right to remove those difficulties by provisions such as those in Clause 18 in order to enable our judges to work at that Court. Curiously, the provisions do not allow for the sending of Lords of Appeal—I do not know why—but start with the Court of Appeal and go down. It is excellent, however, that our judges should be able to take their place at the European Court. There may be some problems because, as I understand it, the tenure of office in the new reconstituted Court would be six years. I am not sure that we would be willing to part with a Lord Justice for six years, but that point could be considered later.
1282 One other provision looks a little ominous. I refer to Clause 18(6)(a), which gives power to the Lord Chancellor and the Secretary of State to make provision for the pensions of those judges. I hope that the noble and learned Lord the Lord Chancellor will be able to resist Treasury niggling with regard to the pensions of those judges. It is an important and unique job and the fiscal implications should not be paramount. I hope that the provisions will not be ungenerous. Subject to those points, however, I am glad to support the Bill.
§ 7.11 p.m.
§ Lord Windlesham
My Lords, this very important constitutional Bill starts in this House rather than in another place and I am sure that all noble Lords will agree that credit is due to the noble and learned Lord the Lord Chancellor and to the noble Lord the Leader of the House for arranging that that should be so. It is entirely appropriate that the Bill should begin in your Lordships' House in view of the long interest that has been taken here in human rights legislation and in the incorporation of the convention, and in view of the presence of the Lords of Appeal, past and present, who have already made such notable contributions to our debate. I am sure that all of us will remember in particular the entirely characteristic speech of the noble and learned Lord, Lord Scarman.
Although during the past two decades I have followed with close attention and great sympathy all of your Lordships' previous debates on the convention, I have never spoken on the subject before. That has not been due to any lack of interest, but has been because I was unsure of where the balance of advantage lay between present practice and enabling litigants to enforce their convention rights in the domestic courts. I believe that the time has now come and that this step should be taken. I support the Bill and do so in the hope that there will be a realistic appreciation of some of the difficulties implicit in the proposals. The speech that we have just heard from the noble and learned Lord, Lord Wilberforce, illustrates that point.
In evaluating legislative proposals, at least three criteria can be adopted. The first is the intention; the second is the method proposed; and the third relates to the likely outcomes. As to the intention, surely most of us—if not perhaps entirely all of us—can agree that any extension of the protection of the civil rights of individuals against the power of the state is a wholly desirable objective. The noble and learned Lord, Lord Wilberforce, spoke of 12 new rights that are likely to become part of British law as a result of incorporation.
The method proposed is ingenious. An adroit scheme is set out in the White Paper and the Bill to reconcile the judicial process with parliamentary sovereignty.
So far, so good; but what about the likely outcomes? The Government have introduced the Bill in the context of an ambitious programme of constitutional reform. The aim is to enable British courts to provide redress to persons who may have suffered from breaches by public authorities of rights that are enshrined in the convention. The timescale will certainly be shorter than the present extended, long drawn out process which is involved in applications to Strasbourg.
1283 My question this evening, about which little has been said so far, is whether the remedies will prove to be effective. First, decisions may be quashed. That is certainly an effective remedy for the individual. Secondly, a court that already has the power to order payment of compensation or to award damages in civil proceedings may do so if it finds that the public authority has acted in a way which violates a convention right—although in reaching that finding the domestic court must take account of the principles of the European Court of Human Rights in relation to awards of compensation.
However, remedies for unlawful acts by public bodies must go further than compensating the victim. Remedies for acts by public bodies which are found to be wrongful require those policies (or the legislation which authorised those actions) to be changed. It is at that point that I have some reservations about the likely effectiveness of the procedure contained in the Bill. What I say is of course speculation. All this lies in the future and nobody can be sure of it; but I believe that this aspect of the Bill deserves some careful thought.
In some cases, policies can be changed within the scope of the existing enabling legislation. However, in other cases it may be necessary to amend, or to repeal, certain provisions of primary or secondary legislation. I note that Clause 10 does not place an obligation on a Minister to take action which is necessary to "remove the incompatibility"—that is the phrasing used—with the convention; it merely states that he "may by order" make the necessary modifications. I have no doubt that in Committee we shall return to debate whether the word "shall" should be substituted for the word "may" or some variation thereof.
Although the courts will not be allowed to set aside Acts of Parliament, as we have heard from the Lord Chancellor and others, they will be able to make a declaration that legislation is incompatible with convention rights, so bringing to the attention of Ministers and Parliament the need to change the law. However, respect for parliamentary sovereignty, understandable as it is, means that under the system envisaged the ultimate decisions will be made not only in an elected, representative assembly—that is the justification—but in an assembly which is highly politicised and adversarial. At present, the main shortcomings of recourse by litigants to Strasbourg are the lengthy delay and, in some but by no means in all cases, the cost. I add that qualification because, like other noble Lords, I have been concerned about life sentence cases. In such cases, the applicant is still in custody and the costs are very low on the litigant's side although the Government may employ counsel, which would somewhat increase the cost. Less obvious though it may be, the strength of the present proceedings lies in the way that the decisions of the court in Strasbourg are enforced. Subject to one derogation as to the period of time in which a suspect can be held in detention in Northern Ireland, changes in administrative practice or substantive law have followed in every case in which a violation has been found against the United Kingdom. Sometimes those decisions have been intensely unwelcome to British Ministers; for example, the series
1284 of decisions limiting the Home Secretary's arbitrary powers of continued detention for life sentence prisoners after the expiry of the penal element of their sentence. When my noble friend Lord Waddington spoke so vigorously in the debate earlier today I wondered whether when he was Home Secretary the iron had entered into his soul.
The current enforcement procedures are low key and partly diplomatic. The channels are via the Council of Ministers in Strasbourg to the Whitehall departments in London. The keynote is quiet persuasion behind the scenes, not confrontation. These are the steps which precede the introduction of changes that have been required—changes to which the United Kingdom has been committed by binding treaty obligation in international law.
The test of the system set out in the Bill, as explained by the noble and learned Lord the Lord Chancellor when he opened the debate, is whether the outcomes of court proceedings will be implemented as effectively as happens at present with a much less visible system. Would it not be a paradox if, at the end of the day, the high ideals which are the impetus for this legislation were to lead to a weakening of the compulsion on politicians and officials to make the necessary changes to protect the rights of an individual, however unpopular, who brings a case in the domestic courts under the European convention?
§ 7.23 p.m.
§ Lord Ackner
My Lords, I support this Bill. I have a number of points which are better aired in Committee. I urge only one point upon your Lordships tonight. In his compact preface the Prime Minister says, among other things:We believe it is right to increase individual rights...new rights, based on bringing the European Convention on Human Rights into the United Kingdom law...the Human Rights ill give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts".In the admirably clear White Paper appears the following comment that takes the matter a little further:Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts...British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe".Until quite recently the proposed legislation received a good press from the media, but the penny has dropped that if one introduces the convention one introduces it in its entirety, including Article 8. That article introduces the right to privacy. This matter has given rise to considerable anxiety, which I believe overlooks Article 10, which clearly balances the right. I understand the concern that Parliament is not providing the framework that should be adopted and interpreted by the courts in dealing with a law of privacy and that it is being left on a case-by-case basis for the judges to work out. That may be a lengthy and not altogether happy process, in the course of which it will be the judges who get the flack rather than the Government. That may be one reason for ducking the responsibility.
1285 The particular point I make is that rights are valueless unless there exists the means to enforce or protect them. No doubt that is the reason for Article 13, which provides:Anyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity".Like the noble Lord, Lord Lester, I was surprised that Clause 1 of the Bill, while referring to the articles to be grafted onto English law, expressly omitted Article 13. There is no doubt an innocent explanation for it, although noble Lords were not provided with one when the noble and learned Lord the Lord Chancellor opened the debate. This is a matter which concerns me.
Because a failure to provide the means to enforce renders the rights valueless, very recently I tabled a Starred Question. In my supplementary question I asked the Minister:Does he agree that the correct, indeed the only, answer that can be provided to the recent cynical and contemptuous observation by Mr. Richard Murdoch, that any law of privacy would only inure to the advantage of the rich and famous, is that legal aid should be made available for those who cannot afford to bring forward a reasonable cause of action? Secondly…does he agree that speculative litigation in the form of conditional or contingent fees—if allowed in this new field of jurisdiction—would be inadequate to ensure proper access to justice?".—[Official Report, 14/10/97; co1.391.]The Minister entirely avoided answering those two questions, until at the very end I limited the question to whether legal aid would be made available to enable the law to develop as he envisaged it. The noble Lord replied that there were no proposals to extend legal aid to the area to which I had referred.
What exactly is to happen? I submit to your Lordships it is nonsense to suggest that contingency or conditional fees, which are said to be about to replace legal aid, will provide access to justice in this field. First, to a large extent one is entering uncharted territory where the prospect of evaluating success is very difficult and therefore it will be an unusual solicitor who is prepared to take it on. Secondly, if there is to be an obligation to take out an insurance to indemnify the successful defendant, if there is one, against the costs, the premium will be impossible. Thirdly, damages, if they are to be awarded, are to follow the scale awarded in Europe, which does not appear to exceed more than £15,000. If that is to be the source of the uplift in costs and is itself to be capped, as has been suggested by the noble and learned Lord, at 20 per cent—the recommendation of the Law Society—then the supply to the successful solicitor to stimulate him into taken up this type of case seems to be small.
Then, of course, if litigation is directed to establish incompatibility, and succeeds, I do not believe that in that situation there is any power to award damages. It is thus essential, if legal aid is to be abolished in general, that special provision be made for human rights claims. Otherwise, the impressive observations of the Prime Minister, to which I have referred and quoted from the preface, will ring hollow and Mr. Murdoch will triumph. If that happens, the Government, with their huge majority, will not be forgiven for what the public, I think, will consider to be an act of cowardice.
§ 7.32 p.m.
§ Lord Ackner
My Lords, I have not formally asked your Lordships to allow me to withdraw early. I have sat overdressed in this Chamber for about the past four hours. I hope that I will be forgiven if, on this limited occasion, I do withdraw. I shall miss, in particular, the noble Earl's speech upon which he has just embarked, which fills me with even greater regret.
§ Earl Russell
My Lords, I beg the noble and learned Lord's pardon for having intervened before he had sat down. It was entirely through inadvertence. Having done that, I must proceed to a further confession. In welcoming the Bill, I must begin by saying that I was brought up, as were some others among us, in the Pharisaical belief that we in this country are different from other men, and that our rights are not as much in need of protection as in some other places.
I must confess that when I first heard the case for this measure, argued by Mr. Donald Wade, as he then was, when I was 18, I did not appreciate its importance. In changing my mind, I have not developed a diminished affection for the legal system or the constitution of my own country. What I have learnt is that no system of government is that perfect this side of paradise. That is why I believe that this is a vital measure.
I not only welcome the measure; I warmly welcome the way in which it is done. The drafting of the Bill appears to me to be a thing of intellectual beauty. I admire it deeply. Whether that intellectual quality is from within the noble and learned Lord's department, or, as I sometimes suspect, also inside his skull, either way he is responsible for it, and I congratulate him on it.
The problem of reconciling rights with sovereignty is one that goes right back to Magna Carta, and the common law's treatment of that has had, over the centuries, a certain degree of ambiguity. I shall say something about the issue of sovereignty because it is occasionally misunderstood. There are two distinguishing marks of a sovereign power. One is that it can do what it will, and cannot be controlled but by itself. That mark will tend to show that if a sovereign power chooses voluntarily to place itself under a particular restriction it has every right to do so.
I would instance the Act of Parliament of 1554 which restored the jurisdiction of the Pope in this country. It was a voluntary acceptance of restraint. And whatever opinion one may have of that, it was a legal Act of Parliament and therefore could only be repealed by another. That is the second mark of sovereignty: that no Parliament can bind its successors. That is, as far as I can see, entirely unaffected by anything in the Bill. I hope that the Bill will not be repealed, but a future government will be well within their legal rights if they do so. So in that way also, and this is crucial, there is no challenge whatever to sovereignty.
It will be a different matter of course whenever the time comes when we start considering the question of whether we should have a constitution. I recall the noble
1287 and learned Lord, Lord Wilberforce, in this Chamber, pointing out that this state and the state of Israel are the only two western nations which do not have a constitution. Whether Mr. Netanyahu's successor may wish to reconsider that question is an argument upon which I shall not venture today. When that does happen, there will be considerable conceptual and intellectual difficulties to face, but that is in the future. It has nothing to do with the Bill.
We have in fact had two systems of law operating in this country, one international, and one domestic—the common law and the canon law. If that question had been handled with as much sophistication as is shown in the Bill, and if our 16th century judges had been as far-sighted as their 20th century successors, many of the arguments which lead to the Reformation need never have happened.
Among those to whom tribute has deservedly been paid today, I should like to include one more—the late Lord Taylor of Gosforth—
§ Earl Russell
—for his Dimbleby lecture on this subject. The noble Lord lived to refute Mark Anthony, for the good which he has done has lived after him.
I should like to touch upon some of the arguments which have been put up against the Bill. The noble and learned Lord, Lord Mayhew of Twysden, expressed anxiety about judges making political choices. Judges have always had to make political choices. If the noble and learned Lord should read, for example, the judgment in the case of Rex v. Hampden (the ship-money case) he will see that that was inevitably a political judgment whichever way it went. That is an inevitable result of judges being empowered to ensure that the Executive governs according to law. It is tough on the judges, but I do not think that we should propose giving it up. I do not see that it will become more the case as a result of the Bill than it was before. It is merely going to be rather more in the open and rather more recognisable. I do not regard that as an evil.
The noble and learned Lord, Lord McCluskey—I know that he is not in his place, but I have given him notice that I intend to raise these points and he has promised to read them—drew attention to a concern which one often meets, about the lack of certainty in drafting. He said—I think that I have his words down exactly—that language defining rights should be as precise and exact as language permits.
I should like to refer the noble and learned Lord to something which he quoted in part—the Renton Report on the preparation of legislation. That report argued that the pursuit of certainty in the legislator in the end becomes self-defeating, because the legislator cannot foresee all cases.
Furthermore, the report contains an extremely interesting chapter dealing with the difference between the English and European drafting of statutes. The English method tends to lay down a great deal of detail in the hope of certainty. The continental method tends to lay down general principles that can be interpreted in
1288 the light of circumstances. I hope that the noble and learned Lord, Lord McCluskey, will read Hansard, because I suggest that if he looks back to the 17th century Scottish statute book he will see that the law of Scotland has been drafted more according to the European principles than to the English. Both methods of legislation have weaknesses as well as strengths, but both are acceptable and both have worked in many contexts.
The noble and learned Lord mentioned the doctrine of due process. He took it up only in its American context, but it has a much older history. It was clarified in this country during the 14th century and ultimately goes back to the due process clause of Magna Carta. That illustrates the point that if one goes back in English law one gets back also to legislation by the expression of general principle. I hope that that answers the point about the European convention which I heard made in this Chamber by the noble and learned Lord, Lord Donaldson of Lymington. He drew attention to the difficulty of amending the convention, but that is the advantage of legislation in these general words. It allows the rights to grow. I have always said that legislators, like parents, must be prepared to let their offspring grow up. That is something which the method of legislation by general words does well.
At times the noble Lord, Lord Beloff, reminded me of King John on Magna Carta; he did not particularly approve of it. The noble Lord also reminded me of a remark made by John Stuart Mill:When has there been a dominion which has not appeared natural to those who possessed it?".We in Parliament are as subject to that as anyone else and we should not forget it.
There are matters on which the legislation could be improved—good though it is, no legislation is ever perfect. I wish to congratulate even in her absence the noble Baroness, Lady Amos, on a distinguished maiden speech. If I praise that speech in moderation it is only in order to ensure that what she said should not thereby be made controversial.
I strongly agree with what was said by the noble and learned Lord, Lord Ackner, about legal aid. It is a matter to which I hope we shall return. I agree with what was said by my noble friend Lord Lester about Clause 7 dealing with the restriction to victims. It is vitally important that bodies such as the Equal Opportunities Commission or a future UK commission on human rights should be able to bring proceedings. One of the many advantages would be in weeding out at an early stage some of the hopeless cases as well as bringing success to some of the stronger ones.
I agree with what was said about the importance of Article 13. I will give a specific example; it is the protection of asylum seekers with a claim which rests on Article 3 of the European convention and not on the UN Convention on Refugees. That applies in particular to the protection of victims of non-governmental persecution. Any of your Lordships who a couple of days ago listened to a BBC radio programme on Algeria will know well the kind of problems to which I refer. Those people are as much in need of protection as
1289 anyone else. Unless Article 13 is incorporated, they will continue to need to go to Strasbourg and the United Kingdom will continue to be found in violation. That would be a pity.
I will address only one point about the drafting of the Bill. All I intended to say has been said by other speakers. I wish to take up the issue of the procedure for quashing legislation which is found incompatible with the convention. It is known in the Chamber that I have less than total affection for procedure by regulation or for procedure under the Henry VIII clause. In this case, it is justified for the same reason as it was in the European Communities Act 1972, which contains the greatest Henry VIII clause in our legislation. It was introduced by none other than Lord Rippon of Hexham and many noble Lords will remember his distinguished opposition to the spread of Henry VIII clauses.
What is common in these two situations is that the Henry VIII clause is necessary to give effect to the prior and clearly expressed will of Parliament. If the Act reaches the statute book it clearly will be the will of Parliament that the convention should be observed. Therefore, if the Minister proceeds to quash legislation—I say to the noble Lord, Lord Kingsland, that it is entirely the choice of the Minister, no doubt after appropriate consultation with his colleagues—he will be saying that Parliament did not intend to pass legislation contrary to the European convention. That is something which a Minister in a sovereign parliament may perfectly well do. He is not bypassing the will of Parliament; he is giving effect to it.
That is one of the good procedures laid down in the Bill. With all the suspicion of regulation which I have expressed, I can perfectly properly not only support it but welcome it.
§ 7.47 p.m.
§ Lord Bethell
My Lords, like the noble Earl, Lord Russell, I was brought up to believe that this country did not need a convention on human rights since our human rights were well enough protected. However, as I grew older and met exponents of human rights on the continent and in the United States I was converted to the idea that a written document is essential. Therefore, I am one of those who is pushing rather than pulling the part of the push-me-pull-you that is trying to encourage the movement in the direction of a convention on human rights.
I have given up the idea that human rights is an offshoot of the French Revolution and that it is connected with anti-British rebellion across the Atlantic. It was conceived when we were opposing Hitler and Stalin and, drafted in 1950 at the height of the Cold War in order to ensure that our ideas had moral superiority—as indeed, it turned out that they did—it enabled us to fight bravely against the communist menace.
Now the violators are fellow members. I take to heart the comment made by my noble friend Lord Kingsland that the new judges have little experience of the jurisprudence of a free society. But the new judges will be with us in the Strasbourg court and they must soon learn. 1290 If they do not learn, we must help them and work with them. Our domestic law will be appealable to them, whether we like it or not. Therefore, I want to give it a push not only in this country but also abroad.
The noble and learned Lord the Lord Chancellor pointed out that the committee, about which he spoke positively, could be the van of the human rights culture throughout the country. I suggest that it could be the vanguard also of a human rights determination throughout Europe and the world. I very much hope that when the committee comes into existence, it will not only deal with the observance of the convention in the United Kingdom but will have also a European dimension, a Council of Europe dimension, a European Union dimension and a dimension beyond these shores. I wonder whether the Government have it in mind to follow up that important initiative by incorporating into our law the covenant on civil and political rights, because that would take many of the ideas of the European convention outside Europe to other countries where those principles very much need to be looked at.
I believe that there will be quite a lot of work for the new committee to do. Some of the ideas put forward in the European Convention on Human Rights are, let us say, old-fashioned and some are rather shocking. For example, I was surprised to see under Article 2 of the convention the principle that it may be permissible to deprive an individual of his life if that person is trying to make an escape from lawful custody. I wonder whether that will be looked at by the committee and whether legislation at a domestic level can be brought in to deal with it.
The clause dealing with privacy is very complicated. Having heard the interventions of many noble Lords on that issue, I tend to believe, with the noble Lord, Lord Mishcon, that we need some sort of recognition of the right to privacy and, if this Bill will lead us towards achieving that, so much the better. We have seen what has happened in recent months to Princess Diana. We have seen telephones being tapped in order to discredit Ministers of the Crown and Members of Parliament. Secret cameras have been installed by newspapers. I am not sure that it is possible for the Press Complaints Commission to deal with all those problems as they should be dealt with. If this Bill can move that forward, so much the better.
Perhaps I may mention that in the European Union, those human rights criteria are used quite shamelessly in matters of trade and discussions with countries where human rights are violated. Some years ago, I was chairman of the European Parliament sub-committee on human rights. In those days, we insisted that a human rights criterion should be inserted into the Lomé Convention and should be debated during the discussion of enlargement of the European Community, as it then was. A few months ago, it was debated in relation to the customs union for Turkey.
Therefore, I trust that the new committee will bear those matters in mind also, because violations of human rights can be used as a trade advantage. We see that with goods produced in China and other countries. Slave labour and other practices condemned by the European convention can lead to goods being produced very cheaply and sold extremely advantageously. 1291 It is high time that this Bill was brought before Parliament. I wish to pay tribute to the noble Lord, Lord Lester, and also to the noble Lord, Lord Avebury. Both noble Lords have promoted human rights as part of our "religion", our ideology, over a number of years. This day must be a happy one for them and I certainly shall be one of those who support the Bill this evening.
§ 7.55 p.m.
§ Lord Donaldson of Lymington
My Lords, earlier this afternoon, one of my noble and learned friends came to me and said, "I am really very sorry that I shall have to leave and so shall be unable to hear you make your usual speech". My usual speech is, of course, in opposition to the incorporation of the convention. I have opposed it in the past on two basic grounds. First, it seemed to me, at any rate as a matter of logic, that a universal right to freedom of action or inaction unless restrained by law must be wider and should be more satisfactory than the specific rights set out in this or in the other convention. Secondly, I thought that it was for Parliament to set limits on that universal right to freedom as and when the need arose.
However, as I told my noble and learned friend, I must admit that I have changed my mind. I do not feel that in changing my mind, I am a sinner who has repented. Nor do I have any of the enthusiasm which is normally attributed to the experience by a new convert. It is simply that I have reassessed the situation as it is at present in my view.
It seems to me now that there were two conditions which had to be satisfied if a universal right to freedom was really to work properly. The first condition was there had to be a high degree of self-restraint and effective self-regulation on the part of those who were enjoying that freedom. One test, but not the only test, would be the old rubric of, "Do as you would be done by"
The second condition was that Parliament should be ready and willing to intervene where self-restraint and self-regulation failed and there was an acute conflict between freedoms or parts of my universal freedom. As the noble Lord, Lord Beloff, pointed out, this Parliament, for one reason or another—it may be lack of time or will—has singularly failed to do that.
Most obviously that applies to the field of privacy, in respect of which the media give complete priority to freedom of expression as enshrined in Article 10 over the right to respect for private and family life as enshrined in Article 9. Their self-restraint has certainly failed and I venture to think that, while self-regulation may be making some progress, the progress is too slow and limited to be acceptable.
I was depressed by the stand of the noble Lord, Lord Wakeham, on behalf of the press. I was depressed also, for rather different reasons, by the comment of the noble Lord, Lord Tordoff, that it is not the fault of the press that privacy is breached by giving addresses of people. He said that that was the fault of the courts which put that information into the public domain by allowing an address or a name to be given in court. In my respectful view, that shows a total lack of appreciation of the 1292 difference in kind as well as quality between revealing an address to a small audience and revealing it to millions. The same of course is true of other aspects of privacy.
There it is. As I say, for those reasons I have come to welcome, or at any rate to support, the passage of this Bill. I believe it to be a very cleverly crafted Bill. I have a great professional admiration for the way in which it has been put together. I am quite satisfied that it upholds the authority of Parliament, which is one of the things that has always troubled me. It avoids any conflict between Parliament and the courts.
I know that it will not politicise the appointment of judges and I hope that it will not lead to the public perceiving judicial decisions as being political in their nature. It is true that they will involve a measure of discretion and a measure of social and judicial engineering, but it will be done under the authority of Parliament and with the guidelines, such as they may be, which can be derived from the convention and from other decisions on the convention in other jurisdictions.
It is an occupational hazard for a judge to be accused of reaching a political decision. Those who have worked in the field of judicial review know perfectly well that, whichever way they decide a matter, they will be accused of playing politics. It may be wrapped up a little but, essentially, that is what is at stake. Indeed, in many of the judicial review cases the applicants had no hope—and knew that they had no hope—of getting a favourable decision. What they really wanted to do was to air their particular hobby horse and, when it failed, to blame the judge for that failure.
I believe that that will happen in the case of this new right. We will have to start with a deluge of claims of breach of the convention. If the Canadian experience is anything to go by, it will range from the arguable through the just arguable to the plain preposterous: such as, the young gentleman—indeed, he was not a gentleman really; he was of the male gender but was in fact a schoolboy—who said that his freedom of expression was being infringed in some way because at religious gatherings he refused to do other than the opposite of what the entire congregation was doing in terms of sitting down and standing up. I could go on with many other like examples.
I hope that one by-product of the legislation will be that the Strasbourg court will take a long hard look at decisions made in the British courts on the meaning of the convention and that it will, if necessary, extend the margin of appreciation which I am sure that that court ought to extend to most jurisdictions. I say that because what is right and proper in one country with one set of traditions and one history may be quite different from that which is right in another country with a different history, tradition and culture.
I welcome Clause 18 of the Bill, which I understand foreshadows the appointment of senior British judges to the Strasbourg court. If I may say so, it will be an experience for both of them.
I should like to say a few words about a topic raised by the noble Lord, Lord Borrie, which I believe to be of fundamental importance; namely, the definition of a 1293 "public authority" which is to be found in Clause 6(3). Perhaps I may refresh your Lordships' memory in that respect. The subsection says that a "public authority" includes—a court"—there is no problem about that—a tribunal which exercises functions in relation to legal proceedings"—similarly, there is no problem about that—[and] any person certain of whose functions are functions of a public nature".I just wonder what are,functions of a public nature"?I turned to the White Paper for assistance and at paragraph 2.2, it states:The definition of what constitutes a public authority is in wide terms. Examples of persons or organisations whose acts or omissions it is intended should be able to be challenged include central government (including executive agencies)"—of course, that is understandable—local government; the police; immigration officers; prisons; courts and tribunals"—and, again, I understand that. But then the White Paper says;and, to the extent that they are exercising public functions, companies responsible for areas of activity which were previously within the public sector, such as the privatised utilities".What has the fact that an activity was originally in the public sector got to do with the definition that we find in the Bill of people carrying out,functions of a public nature"?I do not believe that every activity by a publicly-funded or publicly-run agency in the past has necessarily been of a public nature. When one thinks of organisations like the BBC, which of course is not yet privatised, one has to admit that it clearly carries on functions of a public nature. Therefore, it is clearly subject to that definition. There cannot be any difference between the BBC, the ITV company or commercial radio. Therefore, I take it that they are all included in the definition of a "public authority".
Then we have to consider not the origin of people's functions but what the functions are today. I genuinely want to know what is a,function of a public nature".If we consider the press, it is obvious that one could not find a function which is of a more public nature. Whether or not an organisation is in the private or public sector, it is clearly dealing with the public in general and not particular members of the public.
That promptly put me in mind of Safeways; for example, is Safeways conducting a business of a public nature? It may be said that it is not but I am not quite sure why. There must be a better way of defining what is meant by a "public authority". It is quite clear that it does not mean a public authority; indeed, this is a pure term of art. Whatever the definition, it must be made clear that it is only a term of art. Various possibilities are open to us but I shall not labour them, save to say 1294 that one could start putting examples in of what are and what are not functions of a public nature, thus leaving it to the courts to draw the final line between the two.
One could resolve what looks to me very much like an inter-governmental conflict of view as to what was meant to be covered by this legislation, which has been papered over by this very clever formula. I must sincerely hope that that will be resolved by the Government before we reach the Committee stage. It is for them to say what the Bill is meant to cover and not a matter for Cross-Benchers, Back-Benchers, or whatever. It is for the Government to deal with the matter between now and the Committee stage.
§ 8.8 p.m.
§ Lord Cocks of Hartcliffe
My Lords, if I should appear even more unsettled and indecisive than usual it is because I am shaken to the core by the announcement of the noble and learned Lord, Lord Donaldson of Lymington, that he has changed his mind. I have always found his speeches most persuasive—indeed, the most telling that I have heard in our various debates on the matter. Therefore, for the noble and learned Lord to recant now causes me grave concern, especially so when he said in such an ominous voice that the BBC was not yet privatised. As the Vice-Chairman of the BBC, I fear the very worst. I am sure that the noble and learned Lord must be privy to some information which escapes me.
When the noble Lord, Lord Holme, was paying tribute to the various organisations which had contributed to this success, he missed out Charter 88. I should have thought that that charter had had a very great effect on this movement to incorporate the convention. The noble Lord, Lord Borrie, referred to the growing movement for incorporation. We have had such debates so often now and, looking around the Chamber, I see many warm friends from the various interchanges that we have had. My views on this legislation are well known; namely, that it is the result of a cleverly organised pressure group purporting to represent large numbers of people but who are in fact a stage army.
I shall not repeat my remarks about Charter 88, which I have explained in great detail on a number of occasions. It is all a matter of public record. I do so to spare your Lordships from being subjected to that once again, but also in view of remarks made in this Chamber in answer to a Question of mine which I asked just before the House rose for the Summer Recess. I asked about the Pilgrim Trust. The noble Lord, Lord Jenkins of Hillhead, referred to my remarks as,an example of the extraordinarily malign fantasies which occasionally seize the mind of the noble Lord, Lord Cocks"— [Official Report, 13/3/97; col. 426]It is not so bad having that said but when one hears the almost universal murmur of assent around the Chamber one must have pause for thought.
I shall not pursue that matter but I wish to give your Lordships an example of what I am talking about. I refer to the Independent newspaper. The recent influx of new Peers on this side of the House from both academic and cultured sources has meant that those of us who are classified as time servers are able to enlarge our 1295 vocabularies. One of the words which I have managed to pick up is "oxymoron". I hope that I have understood the application of this word. It seems to me that the title of the Independent is an oxymoron and that it should be called the Chronicle of the Chattering Classes. Noble Lords can watch this unfold for themselves. In the Independent on Sunday of 19th October there was an article on the cannabis campaign. According to the newspaper, people are saying that they want change. It provides a list of campaign supporters; one can add one's name to the list. In the Independent on Sundayof the following week appeared the headline,The Campaign Everyone Is Talking About".Further names are added to the list representing people from literary circles, the arts, the media, academia, medicine, pressure groups, politics, readers, the law and the state. However, there is no one from the manual classes. Even Charter 88 admitted that of the signatories to that charter one half of 1 per cent. came from the manual classes. These matters are not always quite so universally sought after as may be suggested.
One of the things which has upset me about this campaign is the way in which this country has been denigrated in order to generate a feeling that there must be change. I shall weary the House with just two examples. On 21st June 1994 the Opposition spokesman for constitutional affairs in another place, the honourable Member for Nottingham, North, said,In August this year. Britain will go to the United Nations to stand condemned in the dock of world opinion for its failure to protect and extend citizens' rights in this country".—[Official Report, Commons, 21/6/94; col. 188.]I have made some inquiries about the United Nations Human Rights Committee. The Library has kindly supplied me with the information that the United Nations Human Rights Committee meets in private and that the evidence is not available. That does not exactly ooze civil liberties and freedom of information, but that is the sort of thing that we in this country are being questioned about.
I refer to my other example of a recruiting letter for Charter 88. The third paragraph states,Look around you. Here is a country of decent, altruistic, freedom-loving people. And here is a political system built on lies, half truths and stupid adversarial sound bites. The system no longer represents people. It has become a game played by an ever-diminishing minority of practitioners whose cynicism seems to increase every year, whose self-seeking is reported by the week. Many people do not relish the choices on offer at the General Election".The letter is signed by Helena Kennedy, QC. It was written a little while ago.
The same thing happened before the war when we had this denigration and running down of the country. That can be seen on both sides. Albert Speer stated on page 238 of Inside the 3rd Reich,[Hitler] stuck unswervingly to his opinion that the West was too feeble, too worn out, too decadent to begin the war seriously".Sir Winston Churchill himself in his book, The Second World War, stated on page 232, when discussing the preparations of the Germans,
They must have time to complete the war machine, and a conciliatory speech now and again from the Fuehrer would keep these futile and degenerate democracies chattering".1296 This is a serious matter as it means that although most people of good will can persevere, if there are others with sinister motives one has to be careful. Recently the BBC produced a good series on the Nazis. We should be indebted to Laurence Rees for that series. His main consultant was Professor Ian Kershaw of Sheffield University. Professor Kershaw described the Weimar constitution as,'the last word in liberal constitutions' which drew on the best elements of the American and French constitutions and which contained what was imagined to be 'every possible protection' for the individual".Yet Professor Kershaw remarked that,Hitler was still able to set aside the entire constitution and its safeguards in one paragraph of the Reichstag Fire Decree of 28 February 1933".The written constitution was no help to 6 million Jews, over half a million gypsies and goodness knows how many mentally handicapped, physically handicapped and mentally disturbed people and homosexuals who were butchered. It is no good thinking that by producing these written documents we shall automatically be safe. That is not the case. The matter requires constant vigilance. We are also indebted to Laurence Rees for explaining in his programmes that the Gestapo could not have operated without the co-operation of ordinary German people. The trial presently being conducted in France and what is emerging about the Vichy regime is also extremely interesting.
I refer to the number of cases in which this country has been involved. The noble and learned Lord, Lord Mackay of Clashfern, the former Lord Chancellor, wrote in the Financial Times of 6th December 1996 of the human rights myth and the concept that we are the worst country in Europe for human rights violations. That is simply not true as the figures are never presented as they should be with comparisons of population and the length of time that a country has subscribed to the convention. The figures indicate that, despite claims to the contrary, the UK's record bears scrutiny in comparison with the records of many other countries across Europe including Austria, Italy, France, Belgium—there is an example of human rights—the Netherlands and Sweden, when considered against our large population and the long length of time (30 years) that the right of individual petition to Strasbourg has been accepted in this country.
Let us proceed with this legislation but let us not tell ourselves that all over the country in one house after another people are agog to see whether this Bill will be accepted tonight. That is simply not true. Robert Hazell, in delivering the constitutional reform lecture on 14th July, said that one of the interesting points about the general election was the fact that there was virtually no discussion of constitutional issues at all. That is something which has been superimposed. At the Labour Party conference of 1994 the delegate for Bristol, South, Helen Holland, reported back that on Thursday afternoon,The debate was headed 'A Modern Democracy' and was a quick romp through Local Government, Constitutional Reform, Electoral Reform, 'Equalities', Law and Criminal Justice and democratisation of Quangos".1297 Although I do not have a bleeper I feel somehow that I am going off message. Therefore I end by saying that we should proceed with this measure if we think it is the right thing but let us not at the same time congratulate ourselves that a great upsurge of public opinion has brought it about.
§ 8.20 p.m.
My Lords, I hope that the noble Lord, Lord Cocks of Hartcliffe, will forgive me if I do not follow his interesting speech to any extent. However, I wish to reassure him of this: that this Bill will enable the people of this country to assert rights which they have enjoyed for 46 years but have had to go a long way to assert, very often only at great expense and above all with delay; and justice delayed is justice denied
. I must apologise for not being present during the speech of the noble and learned Lord the Lord Chancellor and my noble friend Lord Kingsland due to the fact that 70 miles away I could not get my car to start. I am sorry. However, I have listened to the rest of the debate. The first thing I wish to say is this. In the previous Parliament I supported the initiative of the noble Lord, Lord Lester of Herne Hill. I am sure that the whole House was interested in his speech. With some qualifications, it warmly supported the Bill. I am strongly in favour of the Bill. I rejoice that our courts are at last to have jurisdiction to do justice under the convention.
I shall return in a moment to some of the views expressed about the part to be played by our judiciary. However, before I go further, I hope that it is relevant and helpful to refer again to a matter that I mentioned when interrupting my noble friend Lord Beloff; namely, my experience 46 years ago in the Council of Europe when I was put onto the legal affairs committee. At the first meeting I attended, the main item on the agenda was to consider a draft constitution for a European Court of Human Rights. That draft had been prepared by officials and was available to us in French, with a translation into English. The committee deputed M. Rolin, the brilliant Belgian lawyer who defended Dr. Mossadeq at The Hague after the Abadan affair, and myself to consider those drafts. We spent two days at it. I greatly admired his initiative. We amended the drafts in both French and English.
Our work was accepted by the legal affairs committee and the council and became the constitution of the Court. Over the years I think that it has stood the test of time fairly well, although it is now suggested that it should be amended in one or two respects.
I mention that because we thought at the time that, although anyone would have a right to apply to the Court, its main jurisdiction would be to try cases either brought by one European government against another for a breach of the convention or cases brought by the Council of Europe against a particular European government. It was assumed that individual people would have the right to go to the European Court of Human Rights but that each country would make arrangements for the convention to be implemented in 1298 its own country with the help of its own courts. In most other European countries that has been achieved. Therefore I rejoice that at last our courts will be able to try those cases.
Having listened to most of this vital debate, I am tempted to comment on various views expressed. However, I shall confine myself to just three matters. First, my noble friend Lord Waddington—I am glad he is in his place; we are old friends and I have a great respect for his judgment—said that our judges would make new law and come into conflict with Parliament. That is nothing new. Our judges have been making new law since the beginning of time. Indeed, our common law is mainly judge-made law; and our modern, recent statutes often require difficult judicial interpretation either because they are ambiguous or obscure or sometimes because they have conflicting provisions. But the important point is that Parliament always has the last word. Parliament often has to amend, and over the years has amended, judge-made law. So there is nothing new about that; it goes on all the time.
The Bill proposes the application of the European Convention on Human Rights to the jurisdiction of our courts. I say this: "Where there's a will there's a way". It will be done. I have complete confidence in our courts.
My noble and learned friend Lord Mayhew of Twysden said that our judiciary will suffer as a result of the Bill. But it is worth noting that all members of the higher judiciary who have spoken in the debate, except the noble and learned Lord, Lord McCluskey, have welcomed the Bill. So have other eminent lawyers who are present. Speaking earlier in the debate the noble Lord, Lord Mishcon, made some important points and was broadly in favour of the Bill. I do not believe that my noble and learned friend Lord Mayhew has much to fear about the effect upon the judiciary. I am sure that they can take it anyway.
Thirdly, I remind my noble friend Lord Beloff that we have often had to incorporate international treaties into our Acts of Parliament. Normally it has worked smoothly and well. I agree that, although few problems have arisen as a result of our doing so, perhaps some of our commitments under the Treaty of Rome and within the European Union have caused and are causing problems. I refer in particular to the common agricultural policy.
Finally, while congratulating the Government on introducing the Bill, I hope that they will realise that the Bill will require much detailed consideration in Committee. Perhaps I may have the attention of the Government Chief Whip in your Lordships' House. I must tell the noble Lord that several days will be required on this vitally important matter. I do not say how many days, but enough days must be allowed.
§ 8.29 p.m.
§ Baroness Williams of Crosby
My Lords, it is a real pleasure to be present on such an historic day as this. We are looking at what is pulsing across our constitutional Rubicon. I believe that when we look 1299 back we shall all be proud to have been here on this day. It is a remarkable day and one which many of us did not expect to see.
Let me also say that the debate has been enriched by a maiden speech which rose to the quality of such a day. As many other noble Lords have done, I refer to the distinguished maiden speech of the noble Baroness, Lady Amos, who I am sure will contribute greatly to our debates in this House. We are most grateful to her. She brought to this House a knowledge of human rights and the way they are exercised by those who have to deal with such matters. Many of us will listen to her in future with the greatest possible interest and attention. We are delighted that she is among us.
It was another historic moment hearing the noble and learned Lord, Lord Donaldson of Lymington, announce his conversion to supporting the Bill. I should like to have heard the noble Lord, Lord Cocks, who regrettably is not in his place, announce a similar conversion. After we have heard the noble and learned Lord, Lord Donaldson, on further occasions, we may yet experience that great moment—a blazing light in the Chamber—when that conversion follows the first.
The noble and learned Lord, Lord Wilberforce, who is one of the most distinguished contributors in this House, said that when the European Convention on Human Rights was first acceded to by this country—indeed, not so much acceded to as largely drafted—nobody supposed that it would be relevant to ourselves. It was in effect an exported convention for others less enlightened than we were. But as the noble and learned Lord, Lord Wilberforce, pointed out, as did my noble friend Lord Russell, we have slowly learnt that its application is also appropriate to ourselves.
The balance of power, struck long ago at the time of the Glorious Revolution, has been greatly altered by the weakening of the Crown, the weakening of this House—almost all of whose amendments in a very short period of time on many pieces of critical legislation were overturned by the previous government—and in some ways the weakening of the Commons itself. Nobody should underestimate the combined power of patronage and discipline on the consciences of MPs. Finally, there is the rise in the number of cases for judicial review, which has exemplified the weakness of our confidence in the fact that human rights will always be respected by our system and which I for one regard as being a symptom of the sicknesses of our constitutional custom and practice. For all those reasons, it is right and appropriate that we are discussing this Bill today.
Secondly, I wish to underline the reference made by a number of noble Lords to three issues in the Bill that we shall want to discuss in greater detail in Committee. The noble Lord, Lord Williams of Mostyn, may wish to comment on them. I shall mention them only briefly since they have been so well analysed by other Members of this House. The first is the concern in regard to remedies. The noble and learned Lord, Lord Ackner, my noble friend Lord Lester and the noble Lord, Lord Windlesham, all referred to the problem of whether, without direct reference to Article 13, the Bill makes adequate provision for remedies in all relevant cases. 1300 In that context, I wish to mention the statements made on behalf of Justice, with particular reference to remedies in cases where a law has been found to be not compatible with the European Convention but still remains the law. While that is not put right, what remedy can the person seeking redress find'? It would be helpful if the noble Lord, Lord Williams, would make some reference to that set of cases.
I wish to refer briefly to another issue raised by a number of noble Lords, including my noble friend Lord Russell, the noble Lord, Lord Lester, the noble and learned Lord, Lord Ackner, and the noble and learned Lord, Lord Simon. It concerns what is to be the definition of the victim under Clause 7(1). Although I am not a lawyer, as must be clear, my understanding is that in this country when a case is brought for judicial review it is sufficient to show that there are good grounds for interest in the matter that is the subject of the review. I understand that "sufficient interest" is the test. The Strasbourg test is a narrower one. Some of us are concerned as to whether the narrowness of that test will mean that some cases will not be able to be brought.
The noble and learned Lord, Lord Ackner, referred to the difficulties in regard to people being sure that they can call upon legal aid, or at the very least that they will not have costs awarded against them that are so heavy that they might be unable to meet them. That problem is best met by taking classes of cases. Some of us are concerned that the non-governmental organisations and the statutory agencies which have played an absolutely central part in seeking redress at Strasbourg might find themselves unable to do so under our own legislation. I hope that the noble Lord, Lord Williams, may be able to comment on that.
The third matter of concern, again expressed by a number of noble Lords, concerns the issue of the "fast track". If I may pay a compliment to the noble and learned Lord the Lord Chancellor among others, it is a most ingenious solution to the problem of how to deal with both parliamentary sovereignty and the need to have a recognition of individual human rights in this country. I wonder whether we could not even further improve on the already remarkable decisions suggested by the Bill: by bringing the proposed committee on human rights to which the noble and learned Lord the Lord Chancellor referred more directly into relationship with that particular process.
For example, on the analogy of our own delegated legislation committee in this House, it should surely be possible for the new committee and its sub-committees to give an indication of their own view on proposals for affirmative resolutions to amend legislation to bring it into line with the requirements of the European convention; and perhaps also to be involved, as happens in New Zealand, with pre-legislative scrutiny of new Bills to ensure that the committee is also satisfied that they meet the requirements of the European convention. My noble friend Lord Lester referred to Australia. That is also correct; the Australian Senate has such a committee. Many of us would feel reassured by the greater involvement of Parliament without delaying the changes in the legislation that those proposals would imply. 1301 I wish to raise only two other issues, both of which are critical. The one area where I hope the Government might reconsider their position was eloquently referred to by the noble Baroness, Lady Amos, in her maiden speech. In a speech in July the noble and learned Lord the Lord Chancellor referred to a human rights commission as a driving force for change. Earlier in this debate he said that the issue was "not a matter of first account" in our debate today. With the greatest respect, I suggest that it is an issue of first account—and for these reasons. This country suffers from an absence of education and understanding of citizenship, which is a serious lacuna in an old democracy such as ours. Rights and their associated obligations constitute, as the right reverend Prelate indicated, a new kind of civic morality in our country—a civic morality to which, repeatedly, the new Government have referred as being at the core of their attitudes and aspirations.
I recognise the public expenditure implications of a commission, which is why I propose that it might be a very modest body at first. A commission would be charged not only with advising those seeking redress, those seeking justice, but would, I hope, become the spark for a new attempt in our education system to introduce the concept of citizenship alongside that of religion and ethics. I can think of nothing more appropriate at the beginning of a new Government than to accept the need for a culture of human rights among our children and university and college students, because that is the bedrock upon which a culture of human rights will be built in this country.
As a number of noble Lords, not least the noble and learned Lord, Lord Wilberforce, have indicated, the European convention is itself a rather old document. For example, it makes no reference to the right to information from government agencies; it makes no reference to some of the most troubling ethical issues of our times, those associated with scientific advance—genetic engineering, cloning and electronic surveillance. It cannot make such reference because those issues did not exist when the convention was drafted. It will need to be modernised and brought up to date. But who is to do that? That is another area where I believe a human rights commission could play an important part.
That brings me to my concluding thought. I have had the honour over the past year to serve on a body called the Comité des Sages. It is rather nice that in French one has no sex; one is simply a "sage", and I like that. As a sage, I have been involved with conferences in every member state on the issue of putting fundamental human rights at the heart of the European Union treaty. The Amsterdam Treaty made small advances in that direction by amending Article F to put respect for human rights at the centre of the treaty and then, much more radically, followed that up with an amendment, Article F(a), under which a country which fails to respect human rights can have its own rights suspended under the treaty. That is an extraordinarily radical move forward.
I should like to see the UK put at the heart of its presidency of the European Union the concept of human rights in Europe for recognition and reinforcement of 1302 those rights in line with what has now happened in the United Kingdom. What we are doing for our domestic law, extended to the responsibilities that we have under the European Union treaties, could make not just Britain but the whole of Europe a continent marked by a commitment to human rights and the obligations that are part of a recognition of those rights.
§ 8.43 p.m.
§ Lord Henley
My Lords, I think we are all agreed that we have had a very good debate. We shall have heard from some 18 different lawyers, and the debate is none the worse for that. Among the distinguished speakers, we have been gratified to hear the noble Baroness, Lady Amos, make her maiden speech. I should like to be the first from these Benches to offer my congratulations to the noble Baroness and to say how grateful I personally was that she spoke and that for once I find myself not the youngest speaker in the House, which is on occasion somewhat grey-haired.
I have one small disagreement with the noble Baroness. In her one criticism of the Bill she said that she would like to see a human rights commission and was sad that that was not provided for. Its exclusion is one aspect of the Bill with which I am happy.
My noble friend Lord Kingsland made our position clear at the beginning of the debate. He laid out our two main reasons for being unhappy with the Bill but made clear that, in line with the Salisbury Convention, we have no intention of voting against the Bill in this House. He made it clear that we oppose the Bill because we feel it will lead to politicisation of the British judiciary and compromise the sovereignty of Parliament. Like many other speakers, he was unhappy about the fast-track procedure to change the law if the judges call for it. Put simply, that means that Parliament will not be given sufficient time to consider the implications of the changes to the law. I shall return to those issues.
I should like to begin by picking up the final point made by my noble friend Lord Renton, who stressed that this was a very important Bill which proposed fundamental changes to the law of the United Kingdom. This is a relatively short Bill of a mere 22 clauses and two schedules. I take it that the schedules simply reiterate what is in the convention and are simply unamendable; they are a statement of fact and there is no point trying to amend them here. The 22 clauses make what I and others consider to be fundamental changes to the legal system in this country.
It is important that we should have adequate time to consider the Bill at Committee stage, Report stage and, dare I say it, at Third Reading. I say that knowing that the Government Chief Whip is listening. We should also have adequate intervals between the different stages. To try to rush the Bill through, adhering to the minimum times as set out in the Companion and standing orders, would not be right.
A great many questions have been raised, and no doubt the noble Lord, Lord Williams, will address some of them this evening. Obviously, the more he can address this evening, the more time we can save later on. Concerns which must be addressed have been raised 1303 by noble Lords from all sides of the House, whether in favour of the Bill or not. For example, the noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord Borrie, raised a number of detailed points of the kind with which this House is particularly good at dealing but which ought to be addressed in Committee. I must say to the Government Chief Whip that they might take some little time.
It is to be regretted that the Bill and the White Paper were published simultaneously. I believe that others, including the noble and learned Lord, Lord Wilberforce, would agree with me that a little more time to consider the implications of the White Paper would have been welcome.
I should like to deal with one or two detailed points. The first relates to resources. The noble and learned Lord, Lord Simon of Glaisdale, as a former Financial Secretary to the Treasury, said that he did not want to see growth in Government expenditure in this area. The resource implications are acknowledged in the Bill but are not addressed in any detail in the Financial Memorandum, as they ought to be. It is acknowledged that additional expenditure on courts and legal aid will arise. The total extent of that additional expenditure is not quantified; nor is there any commitment that it will be met by the Government. That is something that we shall wish to pursue at later stages.
As far as the courts are concerned, the Government surely have no alternative but to agree that they will provide the additional judges and court staff warranted by the extra work-load. I believe the position with regard to legal aid is more complicated—another issue addressed by the noble and learned Lord, Lord Simon of Glaisdale. As I understand it, the Government are intent on abolishing civil legal aid. Who do they think will act for individuals who wish to raise alleged breaches of convention rights in the civil courts? Conditional-fee arrangements are unlikely to help in that case. In many instances the cases will not involve the recovery of damages and even when they do so the level of damages will be low. Damages are to be based on Strasbourg awards and it is therefore unlikely that many lawyers would be willing to take on cases on a speculative basis. The Government therefore are purporting to give greater rights to citizens which they will be unable to enforce.
Turning to criminal cases, if convention points are to be raised in criminal proceedings, that will lead to additional and lengthier court hearings. We should look for a clear commitment that the legal aid schemes in both England and Scotland will meet that additional expense. I certainly welcome comments from the noble Lord, Lord Williams, on that issue when he comes to sum up.
The second detailed point I wish to make and one that has not been raised by any other noble Lord—I find that surprising since there have been a number of speakers from north of the Border—is what one might call the Scottish dimension, particularly after devolution. Once the Scottish parliament is up and running, it will not have the power to pass primary legislation that contravenes the convention. Such legislation will be 1304 ultra vires of the Scottish parliament. As a consequence of that, the Scottish courts will be given power to strike down such legislation even though they will not have the power to strike down Westminster legislation that they find equally objectionable under the convention. There will thus be a significant difference in the powers of the judiciary north and south of the Border.
The Scottish parliament will have power to pass legislation on topics such as law and order and education. When it does so, there may be instances where it enacts statutory provisions virtually identical to those enacted in Westminster in relation to England and Wales. The sentencing powers for criminal courts are an example of when that might occur. If the Scottish courts reach the view that a specific statutory provision contravenes the convention, then that statutory provision can be quashed, as we see from paragraph 2.21 of the White Paper. On the other hand, if the English courts reach a similar view about an identical provision in England, they will not have the power to quash it; they will only have the power to make a declaration of incompatibility—as was discussed at length earlier this afternoon in relation to Clause 4.
I doubt whether the general public will understand or accept that difference of approach. The reasoning in the White Paper at 2.13, explaining why the Government do not have a mandate for giving the courts power to quash Westminster legislation, fails to address the issue of whether they have a mandate to give such a power to the Scottish courts in respect of legislation from the devolved parliament.
§ Lord Lester of Herne Hill
My Lords, I am obliged to the noble Lord for giving way. Whatever the general public may think, I am totally mystified by what he said. Is the noble Lord's position that the courts of the United Kingdom should have the power to strike down Acts of the sovereign Westminster Parliament in the same way as courts will have the necessary power to make sure that the subordinate power in Scotland or Northern Ireland, if there were one, acts within its powers? Or is the noble Lord's position that there should be uniformity in the opposite sense; namely, that there should be no power to curtail Scottish legislation by a Scottish parliament that breaches the convention?
It seems to me that it has to be one or the other. As I understand the position, under this Bill the sovereignty of Parliament is being preserved and a subordinate legislator is quite rightly being brought within the framework of the convention so as not to act ultra vires. However, I am puzzled by the noble Lord's position. I do not understand for which of those propositions he is arguing.
§ Lord Henley
My Lords, I am not arguing for either of those propositions at the moment. I am pointing out that there is a discrepancy in the treatment of the two parliaments. The Government themselves will answer in due course. It may be that they will say that the treatment of Scotland should be different because, as the noble Lord, Lord Lester, puts it, that is the subordinate parliament compared to the imperial Parliament in which we are sitting. 1305 If we turn to paragraph 2.13 of the White Paper, we will see that it deals with that point. However, it is beholden on the Government to explain why they believe there should be the difference and why it is unlikely that there could be a conflict between the treatment of the two. I welcome the Government's response to that point.
The third item with which I wish to deal—again, I hope to deal with it briefly because it was dealt with at considerable length by a number of noble Lords—is the effect on the press. I saw the article written by my noble friend Lord Wakeham and I am sorry that he is unable to be here today for the reasons given by the noble Lord, Lord Tordoff. I listened to the noble Lord, Lord Lester, dealing with the points met by my noble friend Lord Wakeham. Other noble Lords referred to them at later stages in the debate and this is again something that we must address in considerable detail at the Committee stage.
My noble friend makes it clear in his article that he is opposed to a privacy law. As I understand it, the Prime Minister is also opposed to a privacy law. My noble friend has a concern that this measure could let in a privacy law by the back door. That is something that we must deal with in some detail at a later stage, particularly if, as the noble Lord, Lord Tordoff, put it, Articles 8 and 10 are, on the face of it, incompatible.
I turn to the question of the fast-track procedures. I am grateful for the acceptance by the noble and learned Lord the Lord Chancellor that this is not a power to be taken lightly. I agree with that fully. On many occasions in the past I have been on the receiving end of the strictures of my noble kinsman, Lord Russell—I do not see him in his place—when, on moving legislation through this House, I have attempted to take powers that he considered to be bearing on the Henry VIII side of things. I know that my noble kinsman takes a fairly strong view of the use of delegated legislation of that sort. But he accepts that this occasion is one that is suitable for the use of the Henry VIII clause, just as he accepts that the same could be said of the European Communities Act 1972.
I believe that is an issue that we must address carefully. We must also address the fact that, under the fast-track procedure, much has been made of the fact that the Minister himself will have discretion as to whether or not it is used. When one looks at the words in paragraph 2.10 of the White Paper it makes it clear that,it will almost certainly prompt the Government and Parliament to change the lawIn other words, the Minister's discretion is bound very tightly. Between now and Committee stage the Delegated Powers Scrutiny Committee will examine what is proposed and will report to the House so that the House has the benefit of the views of that committee.
1306 Again, much has been made of the dangers of politicising the judiciary—I have much sympathy with that view. I believe it was the noble and learned Lord the Lord Chancellor himself who said in an article in 1996 entitled "Judges and Decision Makers", that,the political and legal choices which import as consideration of fundamental rights protection are among the most difficult and most subjective, and offer immense scope for political and philosophical disagreement".He also said—my noble friend Lord Waddington referred to this—Incorporation will involve a very significant transfer of power to the Judges".There are dangers here and they are dangers that cannot merely be addressed by the Law Lords saying that they do not see them. Many others see the dangers and that is something which we must come back to with considerable care when the Bill reaches the Committee stage.
As I said, we have had a long debate on what is a slim Bill but it is a debate that will continue for some time to come as we move through the Committee and Report stages. I shall not speak any longer tonight because it is important that we now hear the noble Lord, Lord Williams of Mostyn, respond for the Government. I can assure him that he will have a busy time in the coming weeks and months as this Bill proceeds through this House before we send it on to the Commons for its consideration.
§ 8.59 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)
My Lords, before the noble Lord sits down, I wonder whether I might understand clearly in my own mind what the policy of the Conservative Opposition is. The question is of the simplest kind. Do they support or resist the principle of incorporation of the convention into United Kingdom law?
§ Lord Henley
My Lords, it is not for the Opposition to respond to questions. It is for the Government to respond. We have made it very clear that we oppose the Bill. It may be that there are other ways that the noble Lord could go about it. But we are debating this Bill. It is this Bill which both my noble friend Lord Kingsland and myself have made clear we are strong in opposing, though we have also made clear that, abiding by the convention, we have no intention of opposing its Second Reading as it proceeds through the House.
§ Lord Williams of Mostyn
My Lords, the cat has just got out of the bag. I thought it might.
In opening the debate the noble Lord, Lord Kingsland—I say, as he knows, without any sense of patronizing—provided your Lordships with a thoughtful speech. He said, "If passed, this will be a defining moment in the life of our constitution". I profoundly agree. He said that he supports the convention wholeheartedly. I profoundly agree. That is why the question which I posed to the noble Lord, Lord Henley, is one of central public importance to everyone in this country who is interested in these issues. That interest 1307 is not limited to the chattering classes; it is not limited to lawyers and academics; it is something of interest to a very large section of our population because it will affect their lives profoundly in the next five to 10 years.
Perhaps I may deal with an obvious question because the answer is in the words read out by the noble Lord, Lord Henley. Scotland is different because it would be ultra vires for the Scottish Parliament to pass laws incompatible with the convention. Therefore, because those are the constitutional arrangements which we have arrived at, the Scottish judges will have the powers to act as the noble Lord, Lord Henley, indicated. The United Kingdom Parliament remains sovereign. We have therefore opted, I believe prudently, rightly and in accordance with United Kingdom tradition, to limit the power of the judges to the declaration of incompatibility. It really is as simple as that.
Many questions have been put forward. It is suggested that perhaps this is an unconscious and unknowing conspiracy by the judiciary to take over power from the legislature. Nothing could be further from the truth. A number of noble Lords who have spoken have said that the judges will have powers. Indeed, yes: which judges, what powers and exercised where, is the whole point. But none of those questions raised by noble Lords begins to address the issue.
Perhaps I may give a recent example. It was not long ago in your Lordships' House that I introduced a short and modest Bill to deal with the consequences of the judgment of the European Court in the case of Chahal. If I remember right, that legislation was being drafted by our predecessors and it was inevitably necessary to bring it in as a direct consequence of two things: first, the ruling of the European Court; and secondly, the convention regularly accepted by all governments of all shades of opinion that when Strasbourg speaks, the United Kingdom follows. That is what we find objectionable. We wish to recover control over our own affairs in a British way.
This is a remarkable country. What a country it is. What a country it can become if we have the internal self confidence to say that there are many things that we do well here. As the noble and learned Lord the Lord Chancellor indicated earlier, this will be a two-way street. We are not to be subject simply to the donations of jurisprudence and legal construction in Strasbourg. The noble Lord, Lord Beloff, asked whether there had been a commission of inquiry about various arrangements in continental Europe. There was not a commission of inquiry but the Home Secretary directed me to go to one or two countries in Europe to see how they do things there. The one constant theme was that they wished us to be able to provide our jurisprudence, which they regard with great respect, knowing it to be infinitely subtle—in some ways much more subtle than continental jurisprudence.
I pay tribute to a notable maiden speech. I shall say no more than that because I know that every one of your Lordships who heard it is of the same view. Perhaps I may make one small modest note. When I was a very junior law student I never thought that I would have the 1308 infinite pleasure of being able to listen to that great man, the noble and learned Lord, Lord Scarman, addressing us as he did.
This has been a good debate. Everyone has risen to the occasion, although we have had different views. My feeling is that the approach represented by the noble Lord, Lord Kingsland, is very close indeed to the approach of the Government as set out by the noble and learned Lord the Lord Chancellor in opening the debate. Our courts will have the opportunity to develop our jurisprudence. That is not, as the Lord Chancellor pointed out, simply, "You will be able to get your rights enforced quickly and cheaply because you will not have to make the journey to Strasbourg". It is much more important than that. Every public authority will know that its behaviour, its structures, its conclusions and its executive actions will be subject to this culture.
It is exactly the same as what necessarily occurred following the introduction of, for example, race relations legislation and equal opportunities legislation. Every significant body, public or private, thereafter had to ask itself, with great seriousness and concern, "Have we equipped ourselves to meet our legal obligations?" That has caused, as the noble Baroness, Lady Amos, said, a transformation in certain areas of human rights. The same is likely to follow when this Bill becomes law.
Perhaps I may respond to some specific questions. Article 13 was mentioned by a number of your Lordships. Our view is, quite unambiguously, that Article 13 is met by the passage of the Bill. The answer to the question is as plain and simple as that
. A number of noble Lords asked questions about funding. In particular, the noble and learned Lord, Lord Ackner, returned to the question he put to me a little while ago. Perhaps it will be helpful if I make plain, with the authority of the Lord Chancellor, what the funding position will be. The Lord Chancellor is to deliver new proposals on legal aid. As is well known, he began the debate and gave an account of his thinking in his keynote speech in Cardiff recently. The proposals that he has to deliver on legal aid will take full account of the need to ensure that people who have strong cases to bring under the Bill should continue to be able to do so. My noble and learned friend further indicated that he would give serious consideration to the proposal made in Sir Peter Middleton's recent report that there should be a special fund to support the carrying forward of public interest cases because there might be appropriate cases which would not pass the legal aid merit test and there might be occasions where the persons concerned did not meet the legal aid financial test—
§ Lord Simon of Glaisdale
My Lords, will the noble Lord say who is to control that fund and who is to direct payments out of it?
§ Lord Williams of Mostyn
My Lords, that question will be abundantly answered following the consultation which my noble and learned friend the Lord Chancellor indicated publicly a little while ago that he is about to carry out. No one can deal with the details or the fine tuning until that consultation has been carried out. 1309 The right reverend Prelate asked whether some of the rights or qualifications were not dangerously general. I am bound to say—this has been said many times—that a general description of rights is in many ways much more appropriate than an attempted description or prescription of rights which is not capable of being flexible with changing social conditions. Perhaps I may give one example. The noble Baroness, Lady Williams of Crosby, referred to electronic surveillance. Of course, that was not known 50 years ago in its present subtlety and sophistication, but the matter is still well covered by Article 8. We do not need over-prescription in this delicate area.
A number of your Lordships, not least the noble Baroness, Lady Amos, referred to the question of whether at this stage there should be a human rights commission. The Government believe that Parliament has an extremely important part to play. That is why the Lord Chancellor went out of his way to indicate that the Home Secretary and he would both look favourably, if Parliament wished it, on the development of a human rights committee.
Dealing with the point about education and the dissemination of material, he said specifically that it might well be subject to the committee's views and that the committee would wish to travel within the jurisdiction in order to take evidence, hear representations and have public forums. That is a development which another place and your Lordships' House might well wish to see. What the Government have said—I hope that your Lordships will think this prudent—is that it is for Parliament to decide on the mechanisms that it wishes to adopt. We are not in any sense drawing back from our commitment.
The noble Lord, Lord Holme of Cheltenham, asked whether I could say whether there would be a Treasury veto on the human rights commission. If I may put it bluntly, all I can say is I do not readily understand that anyone would be able successfully to overrule the Lord Chancellor and the Home Secretary if they concluded that they wanted public funding, but that is a little way down the road. The question was whether there will be a Treasury veto. I shall try again: no, no, no.
The noble Lord, Lord Holme, also asked whether we would be "proactive"—I believe that that is the word nowadays—about relationships with the existing statutory commissions. Of course—we have been in regular correspondence with them in past months.
The noble and learned Lord, Lord Simon of Glaisdale, asked what would or would not be a public body. He rightly conjectured that we would anticipate the BBC being a public authority and that Channel 4 might well be a public authority, but that other commercial organisations, such as private television stations, might well not be public authorities. I stress that that is a matter for the courts to decide as the jurisprudence develops. Some authorities plainly exercise wholly public functions; others do not. There is no difficulty here.
1310 There is no difficulty in the questions put by the noble Lord, Lord Borrie. Perhaps I may cite Railtrack as a simple example. It is the statutory safety regulator, but equally it carries out private functions of property development or property acquisition. It is perfectly easy for a judiciary, which is as well accustomed as is ours to questions of judicial review, to resolve such problems. It is a mistake to think that we are hobbling authorities because they are now private whereas they used to be public utilities. The point is not the label or description; it is the function. I hope that I have made that plain.
§ Lord Donaldson of Lymington
My Lords, before the noble Lord sits down, can he tell me whether a newspaper which has never been publicly funded and which has never been a public body comes within the definition? I never understood that the definition required anybody to be an authority; I thought that one had to be either a company or an individual.
§ Lord Williams of Mostyn
My Lords, subject to the cautious proviso that this is a matter for the courts to determine in due time, it is our belief that a newspaper is not a public authority. A court is a public authority which is obliged to act lawfully. I have developed that point in the context of the question about the press and privacy.
It cannot be too firmly reiterated that my noble and learned friend the Lord Chancellor has made it absolutely plain that the Government believe that the proper way forward is to have effective self-regulation by the PCC; that is to say, effective in terms of the legitimate interests of proper investigative journalism and public protection and, overarching both, effective in terms of public support. As my noble and learned friend has indicated, if there is effective self-regulation there will be no blemishes. I repeat his words: effective self-regulation is the way to keep these cases from court.
This is not intended to be a bonanza for lawyers. It is intended to offer a proper balance within our society in answer to the difficult question: how does one reconcile Article 8 with Article 10? That is not always an easy function to perform. But it is not beyond the wit, intelligence and traditions of our judicial system to come to appropriate conclusions in appropriate cases.
§ Lord Simon of Glaisdale
My Lords, the noble Lord is always courtesy itself in giving way and replying to points made in the debate. To our applause there is now to be enshrined in statute law a right to privacy. Is that merely to be vindicated by reliance on self-regulation?
§ Lord Williams of Mostyn
My Lords, I cannot prescribe or precisely foretell how judges will develop their powers. But I reiterate as plainly as I can the view of the Government that on questions of press freedom effective and efficient self-regulation is infinitely preferable to legal battles in court. It is not only the press that intrudes into people's privacy; neighbours and 1311 private detectives do it too. There are many intrusions into privacy suffered by the meek, lowly and humble and not considered on a daily basis. This law will introduce into our regime the necessity for those who intrude to understand that now legal sanctions may be hurled against them when formerly they were not.
No one should forget that the press in this country, which is not free of blemish-neither I nor any member of the Government has ever pretended otherwise—does good work. It is absolutely necessary in a free and democratic society that there is an investigative press and media willing to look into matters and to expose wrong-doing, sometimes at great risk and financial cost. I do not believe that anyone who recalls the political history of the past 18 months can possibly differ from that proposition.
My noble friend Lord Mishcon asked what might happen in a criminal or civil case where a convention compatibility point was raised. The solutions will be infinitely variable. The courts already have power under Section 78 of the Police and Criminal Evidence Act to take certain steps by way of the exclusion of evidence if the case may become unfair. It may be necessary to have adjournments or a preliminary ruling by the trial judge, whereupon the defendant can either continue the trial or change his plea, as happens now, and reserve his rights on appeal. I believe that all of those mechanisms are well familiar at the moment and can be usefully developed as experience demonstrates it to be right. 1312 Without presumption, I recognise the force of the feelings expressed by the noble Lord, Lord Waddington. I entirely endorse his comment and that of the noble and learned Lord, Lord Mayhew, that people may have legitimate concerns about these matters. There will be differences between us. It is the philosophic difference that perhaps can never be bridged. I correct myself. As the noble and learned Lord, Lord Donaldson of Lymington, indicated, sometimes argument changes the mind.
I have been at the Dispatch Box for 19 minutes, two of them spent sitting down and hopping up again. I forgive myself on your Lordships' behalf. I put the position of the Government very generally. I have already said that the Government endorse the proposition put forward by the noble Lord, Lord Kingsland, that this is a defining moment in Britain's constitutional life, history and traditions.
We want to make the Bill the very best construction that we can. The noble and learned Lord the Lord Chancellor pointed out earlier that this was a Home Office Bill. I cannot leave this Dispatch Box—I should not—without complimenting the officials in the Home Office and the parliamentary draftsmen for producing this subtle, elegant and very British construction. There is a verse that I used to know. It has a line or two in it: "'Courage', he said and pointed towards the land".
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at twenty minutes past nine o'clock.