House of Commons Hansard Debates for 19 Jun 1989

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under the constitution, which we inherited from feudal days and which is now far less democratic than that in any other so-called free country in the world.

8.58 pm

Mr. Richard Shepherd (Aldridge-Brownhills) : I had not intended to speak in this debate. However, I am grateful to the Social and Liberal Democratic party for raising this subject for discussion this evening. The subject touches on some of the anxieties of thoughtful people in society. What protects us? What defends our liberties, such as the freedom of speech or whatever else we identify as essential liberties?

This debate sounded almost like my school books written by people like Dicey, Wade and Phillip about law and constitution. The old concept was that Parliament, in the last analysis, defended us. Our freedoms were safeguarded here. The simplest and narrowest freedoms, the basic freedoms of expression, conscience, thought and worship, were protected in the House of Commons.

I will not trade insults with my hon. Friend the Minister of State, who cited the Official Secrets Act 1989 as progress in the parliamentary extension of liberty. I need only reflect that that Act introduces the concept of absolute offences, something that this House has campaigned and fought against for 200 or 300 years. The Minister of State believes that that is an advancement of civil liberties. I shall walk on the other side of the street, but I note what he says.

My hon. Friend the Minister of State also referred to the Security Services Act 1989. If I remember that Act correctly, it states that national security is anything that the Secretary of State for the Home Department states that it should be. Furthermore, the Act states that those matters may not go before the courts. My lessons on the constitution referred to the supremacy of Parliament and the rule of law. The courts enacted the laws. That was a test and a bench mark. Freedoms of speech were asserted through the common law.

The courts mention the "treasured" right, but increasingly this century the supremacy of Parliament has enabled the Executive to take upon themselves powers that we never countenanced that decent, reasonable and moderate people would ever think it necessary to assume. It was extraordinary for me as a Conservative Member to listen to my hon. Friend the Minister of State identify as extensions of liberty two of the most oppressive pieces of legislation brought in over the past six months. For the Minister of State to do that really stands matters on their head.

What defends our liberties? I have little confidence in our courts because of the nature of their remit, their acceptance of the supremacy of Parliament and their job to interpret the law, which I do not dispute. How are our freedoms and liberties defended? Right hon. and hon. Members have identified several issues which have caused me great anxiety. In his final hallelujah, my hon. Friend the Minister of State stated that it was wholly appropriate, without reference to the courts, to prevent free British citizens from moving from one part of this country to another. The European Court of Human Rights, however, found that improper and considered it an invasion of our freedoms. The Government decided to derogate from that and we had 12 months to figure out a way round the European court's ruling. Although the

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Government have not found a way round it yet, no doubt they will do so in the next few months. Yet my hon. Friend the Minister of State has been citing those examples as advancements of our civil liberties.

One of my colleagues last January said that Parliament had become a pretty poor defender of our liberties. Given the doctrine of the supremacy of Parliament, and if the Executive can transmit through its party almost any view of the world and enact it into legislation without any correction, it is the duty of the courts to apply that legislation. People who brood on this matter tend to ask whether there is any way in which we can secure certain basic freedoms if they cannot look to Parliament to do so.

The European Court of Human Rights is the mechanism about which we are hearing much today. Incidentally, I opposed it when I first became a Member of this House. I wondered why it was necessary to have a foreign court to oversee our legislative and judicial processes. I regarded that as unnecessary. As a free-born British subject, could I not argue and defend my own rights? But as I watch the growth of Executive power and the exclusion of other centres of balance within our constitution, I become increasingly anxious. I was elected in 1979. We were told that we were going to have less government and get the Government off people's backs. I remember all those arguments ringing in my head and I still pass them on sometimes to unsuspecting constituents who are not aware of the issues behind them.

We have increasingly concentrated power in the hands of the Executive. In my casualness, I was not mindful of the importance of local government as a balancer. At one time in Walsall, for example, it was important to a large number of residents that the grammar schools there should be maintained. The then Secretary of State for Education, Mrs. Shirley Williams--now of America--did her best to destroy Walsall's grammar schools--but she was unable to do so because the local population offered resistance and exercised its judgment through the council chamber. It happened that Labour was the largest local party and it also wanted to defend the schools, so there the matter rested.

From 1979 until today, I have watched, the Government grasp unto themselves enourmous powers, taking away the rights of local authorities to determine matters which seem wholly appropriate for them to determine. At an earlier stage, and without reflecting, I was happy to see what I thought was in my political interest come to pass. As the right hon. Member for Chesterfield (Mr. Benn) said, however, what is in one's own political interest is not necessarily in the interests of others. I am not the final inheritor of the kingdom on earth. I am merely one of those who pass through, but the powers will endure. What am I creating when I vote for legislation which increases the Executive's powers? I am handing on an instrument to a faceless successor whom I do not know, who may interpret and use those powers aggressively and in a way that will rebound to my party's dishonour and shame.

What disturbed me a little about the speech of my hon. Friend the Minister was that it did not address itself to the constitutional issue. Are our institutions sufficiently strong to protect my right to stand anywhere I like in this country

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and say what I wish to say? To me, that is a fundamental right. Yet we have passed a Bill that the Law Lords will enact to the effect that, if I have been a member of the security services for 25 years, for example, I cannot talk about them. To do so would be an absolute offence and one for which I could go to prison. I could not even say that I received a gold watch. The Law Lords have the ultimate jurisdiction and the power to apply that law.

Where is the relief from that aggrandisement of government by a Government who have given up the great parliamentary traditions of Burke? Parliamentary democracy is not divided by two plus one--it is the process of argument and discussion. We should all remember that. Such discussion and argument may not win my agreement, but it should secure my acquiescence. Instead, in recent years our parliamentary guillotine has been flipped up and down faster than anything in the French revolution. I believe that this Parliament has seen the operation of about 30 guillotines, seven in the current Session alone. That is all contrary to our traditions.

Where is the instrument of protection? Increasingly, I have seen it in the belated, slow and unhappy process of references to the European Court of Human Rights in respect of rights that we used to take for granted. Britain made one of the major inputs into that system, as one of its original signatories, but unhappily, the aggrandisement of the Executive is causing anxiety. I believe that these are not just the views of a Conservative Back Bencher but are held more widely. During the "Spycatcher" case, I noted constant references to the European Convention on Human Rights. I also observe judges increasingly attempting to align their judgments with the convention, even though there is no question at that stage of a referral to the European Court. Increasingly, I hear free-born British citizens who still have pockets deep enough to challenge the Government and to stand up and fight them saying, "I will go further if necessary."

One day we shall have the European Court's judgments on Northern Ireland. One day we shall get to the bottom of the Stalker affair. One day the European Court will make a judgment on whether or not our official secrets legislation is reasonable. One day we shall have a judgment on the Home Secretary's warrant for investigations which make lawful that which was once unlawful.

Why is it necessary for us to go to a European court? What if the Law Lords are not mindful of the principles and articles of the convention? Is there a device that can strengthen our institutions? The Opposition have talked about reforming the House of Lords, and I suspect that the right hon. Member for Chesterfield can tell us more about its workings as an "inside outsider". I too have come to the conclusion that the sunset home at the other end of the building, with its slight smell of urine, is a pretty poor body. Life support machines are wheeled in and people talk deferentially about one another's magnificent contributions. In fact, half of them are there due to a mere accident of birth, the other half by virtue of having been grand panjandrums in the Civil Service. Yet we hear them telling everyone how wonderful their careers have been. The whiff of liberty and freedom for which I ask is outside their ken. The spirit of the individual is more than a mere accident of birth.

What unique feature makes a man a legislator? The law reform proposals of Lord Mackay are a classic example of the separation of powers in this country. One cannot get into the House of Lords for Law Lords banging on about

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how we should legislate on law reform. Hon. Members should talk to me about the role of the House of Lords. It is not respectable any more. One cannot look to the present House of Lords--I go along with the hon. Member for Edinburgh, Central (Mr. Darling) to this extent--to act as a block or check because it is representative of no one other than the appointees of the Executive who put them there. That curious arrangement was known as the dignified part of the British constitution. Bagehot said that the cure for the House of Lords was to go and see it. I recommend that those who have listened to our debates on this subject should do just that.

Mr. Benn : There is just one charge that the hon. Gentleman has not made against the system. The power of the Prime Minister to give people peerages gives her power over whole sections of society. Many of those people will never receive peerages, but will do anything in the hope that they will. The corruption of patronage--more even than the corruption of inheritance--is a factor that the hon. Gentleman should bring into his denunciation of the other Chamber, which was music to my ears and went further than I would have dared to go.

Mr. Shepherd : It is well known that, in church, I can silence two pews on either side of me by my lack of true note.

I have only to sit in this House as a Back Bencher to see how we are humbled by the creative use of the power of patronage. A Cabinet no longer able to raise its voice to speak home truths and to argue its corner generously and courageously is a sight that diminishes us. That is why we are having this debate. Cabinet government has gone by the board. The ability of the House of Commons to hold its Members accountable and to defend liberties is in question. We must therefore examine the institutional arrangements.

The hon. Member for Caithness and Sutherland (Mr. Maclennan) honourably suggested that we could provide a halfway house--a temporary measure to give British citizens more rapid access--by incorporating the European convention. I have concluded that that would be an important contribution to improving the position while we consider more major constitutional reforms.

9.13 pm

Mr. Harry Barnes (Derbyshire, North-East) : The Government have seriously undermined the democratic, constitutional and civil liberties of the people. A specific example is the recently enacted poll tax legislation, which comes on top of other measures affecting secrecy and freedom. The unfair influence of the poll tax will have a knock-on effect, for instance, on the franchise, which is part of the essential background of the establishment of civil liberties. As my right hon. Friend the Member for Chesterfield (Mr. Benn) said, it is outside this House that pressure is brought to bear upon us. Pressure groups and other people express their views through the electoral system. It is that which is important. The franchise is being fixed and fiddled by means of the poll tax. One might not think that is the case if one looks at the European election results, when the Government got a bloody nose, but the poll tax is manipulating the franchise.

Since the general election two years ago, the franchise has dropped by more than 4 per cent. in 13 Scottish

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constituencies. That is not due to major population shifts, or to old people dying and fewer young people becoming eligible to enter, the electoral register. It is due to the impact of the poll tax and to the fear of the connection between the poll tax register and the electoral register. The position is even worse in England. Within a year, the franchise has collapsed by more than 4 per cent. in 17 constituencies, including Finchley, where 2,170 people are missing from the electoral register. In the Liverpool constituencies, 10 per cent. have gone missing from the electoral register within a year. There have to be explanations, but they cannot be given in traditional terms--that fewer people are registering because no election is due. That does not fit in with what happened in the past after elections. It cannot be argued, either, that the cause is demographic change. The change has been brought about by the introduction of the poll tax. It is a sign to us all of the vast changes that the Government have introduced. The poll tax is the Government's flagship. It is a sign of the principles in which they believe.

In the referendum in Chile on the future of Pinochet, people had to pay, in order to vote and have their names put on the electoral register, the equivalent of a month's wages on an employment scheme, so many working- class people were disfranchised. However, those who voted expressed their need for democratic change.

The same has happened to some extent in this country, although it has not been on so dramatic a scale as in Chile. In Labour areas in particular, where people have the most to fear from the poll tax, between 3 and 4 per cent. of electors are beginning to disappear from the electoral register. The smashing of local government has been going on for a considerable period, but it now appears as though a ton of bricks has finally broken the proverbial camel's back. The poll tax will interfere seriously with our democratic rights and civil liberties. Even after they have smashed local government, the Government will ensure that they fix the system by means of the poll tax. There will be a sort of Hobson's choice about who is elected. Labour-controlled authorities will be in an invidious position : should they increase the poll tax to provide services, and therefore crucify the very people that they are trying to serve, including many people who are on benefit, or should they cut services for those who need them? If local authorities do not cut the services that they provide, there are others waiting in the wings who will be prepared to cut them. The logic of it all is to tie the electoral register to the poll tax register and to manipulate the results. The poll tax will lead to centralisation, which will be similar to the centralisation that the Government have introduced by means of many other measures, but it will be all-embracing in terms of the operation of rebate schemes, grants, the uniform business rate and many other matters that are in the hands of a Minister who acts in many respects like a municipal Mussolini in his dealings with local government.

The poll tax makes a vast attack upon civil liberties, by searching out information to ensure that, if someone has been missed off the poll tax register, they will be found on the electoral register and if they are not on the electoral register they can be hunted and searched for in a variety of records that do not exist for poll tax purposes. Today, I received a written parliamentary reply from the Under-Secretary of State for Employment stating :

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"Unemployment Benefit Officers are required to disclose details of the name and address of any person or their partner, aged 18 or over, to a registration officer for a charging authority."

That was in answer to a question about poll tax registration. The answer then makes certain qualifications, but the principle operates in a host of issues in which we would not expect the state and the poll tax registrars to intervene.

That is why, following the pattern set by my right hon. Friend the Member for Chesterfield, I seek to bring two measures before the House--one is before the House and one is on its way. The Re-enfranchisement of the People Bill seeks to separate the electoral register from the poll tax register. There is a doubt in law about the legality of the poll tax legislation. Prior legislation which, thank goodness has never been changed will ensure that it does interfere with electoral registration--the 1275 Statute of Westminster, which guarantees free election ; and the Representation of the People Act 1983, which codifies earlier legislation and provides that those free elections will allow people to qualify to vote without duress. Do the Government intend to interfere with that freedom and that right of franchise because they believe that the poll tax is even more important?

The other measure I intend to bring to the House concerns petitions. The Scottish Office has said that petitions to poll tax registrars can quite legitimately be used to place people's names upon poll tax registers, yet the ancient right of petitioning precedes that of franchise in Britain. It is the way in which ordinary people could express their views humbly to their monarch and to their Parliament. It was decided that they should not be put under duress for signing a petition, yet what is it but duress to say that when people sign protests against the poll tax, those protests will be used for the very purpose against which they are protesting? That is another example of the vast attack on the democratic and constitutional rights of the people which is involved in the poll tax. As we have heard, it is but one of the measures before us and one of the signs that the Government's amendment is an absolute load of rubbish.

9.24 pm

Mr. Ivan Lawrence (Burton) : The trouble with the word "liberty" is that it means whatever we choose to make it mean. One man's liberty is another man's tyranny. The hon. Member for Derbyshire, North-East (Mr. Barnes) has just affirmed that the community charge, where each person that has a community benefit and can afford to make a contribution shares the burden of the local cost, is the ultimate tyranny. To others it is a much fairer way of imposing a charge upon local services than the rates.

The hon. Member for Caithness and Sutherland (Mr. Maclennan) listed what he considered to be tyrannies. To him the first-past-the-post system of election is a tyranny, but to others the greater tyranny would be to subject our Government to the dictates of the party holding the balance which has attracted the least preferred votes. To him, the Broadcasting Standards Council imposes a tyranny of censorship. Others ask how else we can be expected to protect our children from the pollution of the mind that the television medium could and does inflict upon us without such safeguards. To him, the restriction

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upon homosexuals not to proselytise their practices is a tyranny, but to others that most limited of restrictions extends the liberty of those who do not want their children to be brought up in a too liberal environment. It is interesting to recall that the permissive society was propounded in the 1960s by one of the founders of the party that the hon. Gentleman represented.

To the hon. Gentleman, any restriction upon the rights of Crown servants to blow their secrets for money or, by striking, to bring to a standstill the vital communications centre which helps to safeguard the security of the realm, are tyrannies. However, to others such liberties are a greater tyranny and will do far more to destroy our free society than some of the limited restrictions that the Government have considered it necessary to impose.

Like his leader, the hon. Gentleman claims to believe in democracy. Does he really believe that the people of this country actually want to open Britain to the settlement of 3.25 million Chinese people from Hong Kong? If our present society is such a tyranny, is it not immoral to invite so many potential sufferers to such a tyranny for permanent settlement on our shores?

There are many other issues in which one man's liberty is another man's tyranny. What is the hon. Gentleman's view of random breath tests? Is not the restriction of the liberty of the individual the lesser evil than that innocent people should be continuously mowed down by drunk drivers in our streets? What is the hon. Gentleman's view of the firearms legislation? Is it not a safer society with licences and restrictions on the free use of even sporting weapons? To say that the Government are cutting the overall liberties of people is such manifest nonsense that I am surprised that the hon. Gentleman is not embarrassed about doing so.

Are we not a freer society in which the taxpayer is able to spend more of his own money through lower taxes, and a freer society now with the ability to spend abroad without restriction? Are we not freer if we own our own houses instead of being tenants of a municipality, and, if we are tenants, freer with rights that we never had before? Are we not freer in a society in which workers have a right not to be forced into trade unions, in which trade union leaders are elected and there are secret ballots, and in which the small business man now has a right to tender for contracts and to make his financial and economic way?

Are women not freer in the workplace than they were before the Government took over? Are not parents freer to choose the schools and education of their children? Is not our leisure time freer now that we can go to public houses with flexible licensing hours? In the age of the computer, are we not better protected by data protection laws? Is there not a freer press now that we have The Independent, Today and other newspapers that did not exist before, and freer broadcasting with more channels from which to choose?

My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and other hon. Members have spoken about the official secrets legislation. Although it is perfectly true that Crown servants are no freer than ever they were to publish their secrets for money, are not civil servants far freer under this Government than they were before? Is not a freer society one that has done away with ministerial certificates as the test for criminality and

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replaced them with the decision of the jury? Is it not a freer society in which the secret service is put on a statutory basis, with rights that are enforceable by the courts?

Dr. John G. Blackburn (Dudley, West) : My hon. and learned Friend has referred to the Official Secrets Act. On two occasions in my life I have entered a career in which I was subject to the Official Secrets Act and I gave a signed undertaking that I would honour the details of that Act. It was part and parcel of the conditions of my service, and I honoured it. Does he agree that to dishonour an oath, a pledge or a covenant is reprehensible?

Mr. Lawrence : What my hon. Friend has just said underlines the extent of his own honour, which I believe all Conservative Members emulate, which is why we supported the legislation when it was introduced.

In the contentious area of police powers, has not liberty been extended by the Police Complaints Authority, by tape-recorded interviews of suspects and by the code of practice in the Police and Criminal Evidence Act 1984 which is daily invoked in our criminal courts?

I could go on for four and half hours or more--but I shall not--listing the steps taken by this Government to safeguard the liberties of the individual. The total weighs heavily in the scale of freedom and far more heavily than the total of the restrictions placed on some individual freedoms to protect the wider freedom of the greater proportion of our people.

I accept the invocation of an Opposition Member not to turn this into a political debate, but when one recalls how things were under the Labour Government who ended their dreary days of individual restriction and restraint with their limitations on spending, on saving and on investment ; with the total repression of state control ; ever extending its tentacles into our lives ; with the bureaucracy of municipal control ; with the abuse of trade union power, yet with none of the liberties that I touched on earlier, how can the House pass a motion condemning the erosion of rights under this Government?

Of course we have not been perfect--that is because, as human beings, we are not perfect and because, as many hon. Members have said, our Parliament is a most imperfect institution. As a Government we have been misled into depriving prisoners of certain rights, such as that peremptorily to challenge three members of the jury. We have had our individual liberty unnecessarily restricted by the fluoridation of public drinking water, a matter upon which I could certainly talk for another four and half hours.

As the hon. Member for Edinburgh, Central (Mr. Darling), who spoke for the Labour party, said, it is true that we have been taken to the European Court of Human Rights on many occasions, and more often than some other countries, but that is because we have accepted the right of individual petitions since 1966, compared with that right being accepted by France in 1981 ; by Greece in 1985 ; by Spain in 1981 ; and by Turkey in 1988. As it takes between five and six years for an application to reach the court or the Committee of Ministers, of course we have had more violations. However, it is also because we in the United Kingdom are responsible for legal systems other than that in England, Wales and Scotland. We are responsible for the legal systems of the Isle of Man and of Guernsey, which have themselves been taken to the European Court of Human Rights.

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However, the hon. Member for Edinburgh, Central did not tell us that a reference is by no means the same thing as a guilty finding ; that some of the issues are by no means serious, and that some are most arguable. In one judgment last year, several complaints were lodged in respect of the opening of personal letters, but only one violation was found. That is a vindication of the civil liberties enshrined in the rules in Scotland. One adverse finding was against the right of the courts to impose a punishment of birching in the Isle of Man, and many people have different views about that matter and about the civil liberties and human rights involved. Another case was the infringement of the freedom of association arising from the closed shop, to which this Government are greatly opposed, but on which they thought that they had the duty to present the arguments fairly in that court. Against that we have, with legal aid, a far more liberal and speedy legal system than many other legal systems in Europe, and our courts, with the civil liberty safeguard of judicial review, are looked upon with admiration by the rest of the world. Having said all that, I am in favour of incorporating the European convention on human rights into our domestic law, because I believe that we could thereby improve even further our conformity with human rights and civil liberties. I am sad that the various moves to introduce a Bill of Rights in Parliament have for procedural reasons not so far succeeded. I supported such a Bill, and I support it now, because it would be far better if our own alleged violations were to be considered by British courts, with British judges rooted in British traditions, than before foreign courts, with foreign judges rooted in foreign and quite different traditions. Such a Bill would do still more to correct our inevitable lapses and would underline Britain's complete commitment under the Government to the collective enforcement of civil liberties. It would make our efforts to sustain human rights in the world at large even more convincing.

Of course, the passage of such a Bill would not still the nonsense that cascades out of the mouths of the hon. Member for Caithness and Sutherland and his friends and allies, but then, I fear that nothing would do that.

9.35 pm

Mr. Michael Stern (Bristol, North-West) : I entirely agree with my hon. and learned Friend the Member for Burton (Mr Lawrence) about the extent to which a lack of definition of liberty has informed the debate. That is, perhaps, not surprising, when the director of one of our supposedly foremost educational institutions--the polytechnic of north London--believes that he is supporting liberty and freedom of speech, when he disapproves of a speaker at that institution to such an extent that he throws the whole weight of the administration of that polytechnic behind organising a rival meeting so that people are not encouraged to hear that of which the director disapproves. The hon. Member for Caithness and Sutherland (Mr. Maclennan), who introduced the debate, listed a number of part-imaginary and part-real areas in which he believed that human rights has suffered in the past 10 years. I should like to put the other side of the case, which has not been entirely explored in the debate so far--the extent to which the Government in the past 10 years have buttressed and extended human rights by their realisation that there can be no liberty and no enforcement of rights without, at

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the same time, protecting those rights by ownership of property, and by relating the availability of liberty to that of the right to own and the right to choose.

I cite just a few examples. I am sure that, like me, the hon. Member for Caithness and Sutherland represents a constituency which consists in part of council housing. I am sure that like me, he has discovered over the years that the one area that dominates his constituency surgeries, and which, above all others, creates unhappiness and a feeling that rights have not been given or have been taken away, is that of monopoly municipal housing. That is not surprising. If we consider housing in terms of human rights, the right of the council tenant is the right to take what he or she is given or nothing, whereas the right of the home owner, or of the tenant is a sector where there is nore than one landlord, is the right to choose the type and location of housing appropriate to the individual. That is the fundamental truth. It is this Government who have so extended that right of home ownership and are now in the process of extending the right to choose between landlords. Those are rights which were almost completely forgotten by previous Governments and certainly rights to which Opposition Members are very late converts.

Another example is that until the Government came to power, a person in employment was frequently offered the right to join a pension scheme but that right was not a right--it was a legal obligation. If the person did not want to join the pension scheme because it was wholly inappropriate to his circumstances, under every previous Government the only remedy was to leave the job. The present Government have created the right to say no--the right not to join a wholly inappropriate scheme.

There is another matter that has not been mentioned. I defer to no Opposition Member in looking to the roots of trade unionism and the extent to which in their early days trade unions represented an extension of human rights to the individual, but I hope that the Opposition join me in accepting, at least in part, that in the 1960s and 1970s that form of trade unionism had been subsumed in a trade unionism that was an instrument of repression which took rights from people rather than adding to them.

I have referred to respects in which the Government have extended liberties, but I should like to refer also to aspects where they have reduced the power of the state, thereby extending liberties. One of the Government's first actions was to abolish exchange controls. In so doing, they showed that they had the self-confidence to say to ordinary people, "You have a freedom that was not previously given, at least since the war-- if you do not like this country, you have the freedom to go elsewhere and take your property with you." No previous Government had ever dreamed of giving such a freedom because no previous Government had had the self- confidence to know that most people would not want to take it once it was open to them. It is easy to pick isolated matters on which those who wish to attack our society have, in recent years, lost part of the right to attack it, but under the Government there has been a great extension of freedom for ordinary people.

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9.41 pm

Mr. Menzies Campbell (Fife, North-East) : I start with the proposition that civil liberties are easily removed but difficult to restore. History demonstrates that freedom of speech and of association were rights that had to be won from a protesting and jealous Executive. They are rights which, under our constitution, can easily be removed because the supremacy of Parliament is such that it can override any of the civil liberties that we take for granted. Our constitution provides no protection for the constitution itself. Parliament can as easily legislate to curtail liberty and freedom as to clean up the streets. Alone among the democracies in Europe, we do not have a written constitution or a Bill of Rights.

The United Kingdom was a signatory to the European convention on human rights in 1951. In spite of that, it has never been incorporated into our domestic law. Our courts cannot apply it and aggrieved citizens have to go to Strasbourg. Some have, so it has been established that there should be legal restrictions on telephone tapping and interception of mail, that prisoners should have the right to correspond with their Members of Parliament and that a woman who has the right to live in the United Kingdom may have her foreign husband live with her here. Because of the rulings of the European Court, the law relating to contempt of court has been changed, homosexual rights have been established in Northern Ireland and corporal punishment has been abolished in state schools in Scotland. If our system is so perfect, why is it that citizens have had to have recourse to Strasbourg for those purposes?

In the Minister's speech there was a central thesis that economic freedom was necessary to underpin constitutional freedoms. Put in that form, I have no objection to that principle, but it is not enough. If the only freedom is an economic one, the rich will be more free than the poor. The right to buy council houses, which I support, is a right that can easily be diluted or made more difficult to fulfil if mortgage interest payments increase because of the operation of the economy by the Government of the day.

The Minister also endorsed academic freedom, to which there would be no objection from the Social and Liberal Democrats. In another place, Lord Jenkins of Hillhead moved, and had accepted, an amendment to provide safeguards for academics against threat of dismissal on the grounds of unwelcome opinions. The amendment was resisted by the Government, which proves that there is no monopoly of good sense in relation to the preservation of liberty to be found on the Treasury Bench.

The Minister referred to judicial review as an essential feature of the protection of our liberty. He was quite right, but he omitted to point out that the single most significant feature of judicial review has been the way in which it has developed since the Wednesbury doctrine of 1947, to the Tameside case and beyond. That case is important and if he is not entirely familiar with it, the Minister should have another look at it, because it reflected an important advance in the doctrine of judicial review. It related to selective education, and the court was constrained to review the statement of the Labour Secretary of State at that time. The court's decision was not political, but its consequences were and the court must have been well aware that it would be.

There seems to be some reluctance in the House to rely on judges, but what happens when an individual goes to

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Strasbourg? He goes to Strasbourg and enlists the aid of the court to establish the necessary proposition. The right hon. Member for Chesterfield (Mr. Benn) expressed concern about the judges' role. However, in the "Spycatcher" affair they could hardly be said to be the Government's poodles. When the Labour party was endeavouring to clear up a little local difficulty in Liverpool, some of those who were the subjects of the investigations were able to go to the court and obtain an injunction against the executive of their own party to stop it proceeding in a way that would prejudice their rights. In the past, the judges have demonstrated their capacity for making proper decisions.

Much of this debate has turned on the issue whether a Bill of Rights can be entrenched in the constitution. I do not believe that it can unless the sort of wholesale review of the constitution, to which the right hon. Member for Chesterfield referred, takes place. However, neither the Treaty of Union nor the reform Acts by which we gained universal adult suffrage are entrenched in the constitution, although it is unthinkable that any Government would seek to depart or detract from those.

As the hon. Member for Aldridge-Brownhills (Mr. Shepherd) said, since we accept the rulings of the Court of Human Rights, we are, by definition, accepting a restriction on our sovereignty. There seems to be no difference in principle between importing that convention into our own law, and the circumstances in which we accept the court's judgments.

An eminent contemporary jurist said :

"When times are abnormally alive with fear and prejudice the common law is at a disadvantage. It cannot resist the will, however frightened and prejudiced it may be, of Parliament."

In another place, Lord Scarman enjoys a certain reputation in constitutional matters and I would have thought that his opinion was one to which the Government should give some weight. To adopt the convention into United Kingdom domestic law would give common law precisely the advantage that it now lacks.

The hon. Member for Edinburgh, Central (Mr. Darling) who has the privilege of being my Member for Parliament, made a most interesting contribution to the debate in which he seemed to move quickly from the constitutional proposals of the policy review yet to be approved, to the changes which he wanted in society. I am not surprised that he felt it necessary to display a fleetness of academic foot which we have not previously seen from him. His programme cannot be entrenched in law any more than ours. His Act to create a five-year delay using the House of Lords can be repealed like any other. So determined are Labour Front Bench spokesmen--no doubt under the benign influence of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley)--to have no truck with a Bill of Rights that they are prepared to propose embracing a constitutional curiosity which many would find repugnant and which is likely to be as easily overcome as any other piece of legislation.

Part of the debate touched on freedom of information. I accept, as the debate showed, that there is an immediate clash of values between those who believe in official secrets and those who believe in freedom of information. The Minister claims that the Government's reform in this area is an advance, a proposition which brought an uncharacteristically inelegant horse laugh from the hon. Member for Aldridge-Brownhills, who went on to display

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in his speech that robustness and independence of mind which have earned him the respect of all sections of the House.

The principal concern about the official secrets legislation, which is not yet an Act, is its failure to address what many regard as the real issues. Secrecy has been institutionalised in Britain since 1911 by more than 100 other statutes which make disclosure of information by civil servants or by others a criminal offence, and by strict disciplinary codes. The new official secrets legislation continues the culture of secrecy in Government. Under the new Act there will be no duty to publish information and no provision for a public interest defence for offences of unauthorised disclosure of information. As my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan) pointed out during the long debates on the Bill, it would be a crime for a civil servant to reveal that his Minister was committing a crime--a most curious consequence of the legislation and a clear insight into the thinking of the Government who prompted it. There will be no test of harm in relation to certain disclosures such as telephone tapping and surveillance, and no requirement of guilty intent when certain disclosures are made by civil servants. If it was within our power, we would introduce a freedom of information Act to show this clash of cultures. We would establish a public right of access to official information and seek to amend the Official Secrets Bill, if it becomes law. The effect would be to put the onus on the authorities to justify secrecy, instead of on the public to justify access.

Good government depends on the ability to learn from mistakes and to improve policies. In a closed system mistakes remain hidden and no one learns from them. As this debate has shown, it is, in the end, a question of attitude. To judge from some of the contributions today, Conservative Members believe that there has been no infringement of any sort of the liberties of the subjects of the United Kingdom. They believe that from the position of the influence which they enjoy and of the privilege to which, to a certain extent, they have access. The truth is that in many areas of our lives, public and private, our liberties have been the subject of continued erosion under all Governments since 1945. We do not notice as our liberties are diluted day by day, but eventually a point must be reached at which those who are worried about these matters take a stand, pointing out that the Government have gone so far and must be allowed to go no further. That is why we have introduced this topic for debate and why we shall invite the House to support our motion.

9.54 pm

Mr. John Patten : The hon. and learned Member for Fife, North-East (Mr. Campbell) may have explained why he and his right hon. and hon. Friends have introduced this motion, but they certainly have not explained to me exactly what their Bill of Rights would contain or how it would help or hinder. At no stage during the speeches by the hon. Member for Caithness and Sutherland (Mr. Maclennan) or the hon. and learned Member for Fife, North-East did we have any elucidation of exactly what the Bill would contain. They are barking up the wrong tree.

Bills of Rights and written constitutions are not the all-healing prescriptions that they are made out to be. We

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can see that from around the world. No hon. Member has dealt with any authority at all with what such a Bill would contain. [Interruption.] It was not stated in the speeches. Secondly, no one has said in the debate how a Bill of Rights could satisfactorily be entrenched. The arguments advanced by the hon. Member for Caithness and Sutherland and by the hon. and learned Member for Fife, North -East were, presumably, arguments of despair. The hon. and learned Member for Fife, North-East is rather unnerving because he looks and sounds like a Tory. It is just that the words do not come out in a Tory way.

Mr. Menzies Campbell rose --

Mr. Patten : I will give way to the hon. and learned Gentleman only on matters of tailoring and asthetics, but not on his political arguments. I will try to make it up to him afterwards.

The hon. Member for Caithness and Sutherland gave no indication at all of how his shadowy Bill of Rights would be entrenched. He and his hon. Friends should have listened much more carefully to my hon. and learned Friend the Member for Burton (Mr. Lawrence), but few SLD Members were in the Chamber when he spoke. He put his finger on the telling dichotomy between liberty and tyranny in this country--that moving frontier where one man's liberty can be another man's tyranny.

I suppose that I must turn briefly to the arguments advanced by the hon. Member for Edinburgh, Central (Mr. Darling). He lifted the veil on the Labour party policy reviews just enough to agitate the right hon. Member for Chesterfield (Mr. Benn), who did not delay for a moment or hold back from attacking his hon. Friend's constitutional prescriptions, which were exceptionally muddled and unclear. The hon. Gentleman was unable to answer any of the questions put by my hon. Friends and was subject to intimidating threats from the right hon. Member for Chesterfield about the new policy review plans needing the endorsement of the next Labour party conference.

There are many hurdles before the plans by the hon. Member for Edinburgh, Central for reform of the House of Lords, regional assemblies and local assemblies, and so on, can be put to the Labour party. The hon. Gentleman mischieviously misrepresented what I said about the recent unfortunate demonstrations in Bradford. I certainly did not introduce any overall condemnation of Moslems in this country. I chose my words very carefully, as I hope and believe that he will do in future. I called upon community leaders to try to intervene with the few hotheads who have caused trouble so as to ensure that trouble does not occur in the future. The hon. Gentleman should read the record tomorrow and have the decency to apologise. He should not try to play party politics with sensitive issues about race relations in this country.

My hon. Friend the Member for Portsmouth, South (Mr. Martin) made an interesting speech, as did my hon. Friend the Member for Bristol, North- West (Mr. Stern), who spoke about academic freedom. We all listened carefully to those speeches. My hon. Friend the Member for Portsmouth, South, said that the Liberals, the Alliance, the SDP, the SLD and the Democrats--to name but five--have had no serious experience in government since the first world war and simply do not appreciate how difficult

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and demanding it is to balance freedom and security, individiual liberty and national interests. We certainly cannot look to them for guidance. That was made manifestly clear in the last three hours of debate. That is why their motion is so impractical.

This is a poignant day on which to debate an SLD motion. Yesterday's results show that the public do not seem to share that party's preoccupation with its view of civil liberties. Its vote fell to such an extent that it is now in fourth place behind the Greens, which suggests that its manifesto commitment to incorporate the European convention on human rights into Community law was not quite the standard to which the electorate wished to rally. As befits a party that we now see in terminal decline, its arguments are impractical and impossible. That is why I urge my right hon. and hon. Friends to resist the motion in the Lobby.

Question put, That the original words stand part of the Question :--

The House divided : Ayes 16, Noes 164.

Division No. 247] [10 pm

AYES

Alton, David

Ashdown, Rt Hon Paddy

Barnes, Mrs Rosie (Greenwich)

Beith, A. J.

Campbell, Menzies (Fife NE)

Carlile, Alex (Mont'g)

Howells, Geraint

Hughes, Simon (Southwark)

Johnston, Sir Russell

Kilfedder, James

Livsey, Richard

Maclennan, Robert

Michie, Mrs Ray (Arg'l & Bute)

Owen, Rt Hon Dr David

Salmond, Alex

Steel, Rt Hon David

Tellers for the Ayes :

Mr. Archy Kirkwood and

Mr. Ronnie Fearn.

NOES

Alexander, Richard

Alison, Rt Hon Michael

Amess, David

Amos, Alan

Arnold, Jacques (Gravesham)

Arnold, Tom (Hazel Grove)

Ashby, David

Atkins, Robert

Atkinson, David

Baker, Nicholas (Dorset N)

Banks, Robert (Harrogate)

Batiste, Spencer

Benyon, W.

Bevan, David Gilroy

Blackburn, Dr John G.

Boscawen, Hon Robert

Boswell, Tim

Bowis, John

Braine, Rt Hon Sir Bernard

Brandon-Bravo, Martin

Brazier, Julian

Bright, Graham

Brooke, Rt Hon Peter

Brown, Michael (Brigg & Cl't's)

Bruce, Ian (Dorset South)

Butterfill, John

Carlisle, Kenneth (Lincoln)

Carrington, Matthew

Chapman, Sydney

Chope, Christopher

Conway, Derek

Cope, Rt Hon John

Davis, David (Boothferry)

Dorrell, Stephen

Douglas-Hamilton, Lord James

Durant, Tony

Evennett, David

Fallon, Michael

Favell, Tony

Fenner, Dame Peggy

Fishburn, John Dudley

Forman, Nigel

Forth, Eric

Fox, Sir Marcus

Franks, Cecil

French, Douglas

Garel-Jones, Tristan

Gill, Christopher

Glyn, Dr Alan

Goodson-Wickes, Dr Charles

Gorman, Mrs Teresa

Greenway, Harry (Ealing N)

Gregory, Conal

Griffiths, Peter (Portsmouth N)

Gummer, Rt Hon John Selwyn

Hague, William

Hamilton, Neil (Tatton)

Hanley, Jeremy

Hargreaves, Ken (Hyndburn)

Hayes, Jerry

Hayhoe, Rt Hon Sir Barney

Hayward, Robert

Heathcoat-Amory, David

Heseltine, Rt Hon Michael

Hicks, Mrs Maureen (Wolv' NE)

Hind, Kenneth

Holt, Richard

Howarth, G. (Cannock & B'wd)

Hughes, Robert G. (Harrow W)

Hunt, David (Wirral W)

Hunt, John (Ravensbourne)

Hunter, Andrew

Irvine, Michael

Jack, Michael

Janman, Tim

Jessel, Toby

Jones, Gwilym (Cardiff N)

Kellett-Bowman, Dame Elaine

Knapman, Roger

Knight, Dame Jill (Edgbaston)

Latham, Michael

Lawrence, Ivan

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