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Mr. Julian Brazier (Canterbury): Does the Home Secretary not recognise that, under existing legal arrangements, the Government can derogate under exceptional circumstances and, on one occasion involving terrorist suspects, did so? Can he see no occasion--not even the matters that we will debate tomorrow--on which a democratically elected Government might feel the need to depart from the findings of the European Court and, with the consent of Parliament, pass a law that changes that?
Mr. Straw: I can indeed. To reassure the hon. Gentleman, the derogation to which he refers is enshrined in schedule 2 to the Bill, on page 19.
Since the convention's drafting nearly 50 years ago, almost all the states that are party to it have gradually incorporated it into their domestic law. Ireland and Norway have not done so, but Ireland has a Bill of Rights which guarantees rights similar to those of the convention, and Norway is in the process of incorporating the convention. Several other countries with which we share our common law tradition, such as Canada and New Zealand, have provided similar protection for human rights in their legal systems.
The effect of non-incorporation on the British people is a practical one. The rights, originally developed by Britain, are no longer seen as British, and enforcing them takes far too long and costs far too much--on average five years and £30,000 to get an action into the European Court at Strasbourg once all domestic remedies have been exhausted. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts, without inordinate delay and cost. It will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more woven into our common law.
There will be another benefit: British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights across Europe. It is also now plain that the approach that the United Kingdom has so far adopted towards the convention has not stood the test of time. The most obvious proof of that lies in the number of cases in which the European Court has found that there have been violations of convention rights in the United Kingdom. It is only natural that people of all political persuasions have asked, "Why do individuals in the United Kingdom have to go to Strasbourg to enforce their British rights? Why can they not rely on them before our domestic courts?"
In 1976, the then Labour Government published a Green Paper on this subject. In 1987, the then Conservative Member of Parliament and Chairman of the Home Affairs Select Committee, Sir Edward Gardner QC, introduced a private Member's Bill on incorporation of the convention. When doing so, he said of the language of the articles:
It was the late John Smith who first committed Labour to the path of incorporation.
Mr. A. J. Beith (Berwick-upon-Tweed):
May I draw the Home Secretary's attention to the fact that a prominent former Conservative Minister, Sir Geoffrey Rippon, withdrew his Bill to enable me to bring before the House a Bill that had passed through another place, which was designed to achieve the same purpose. That measure had been introduced by Lord Wade. In the past, there has been much more distinctive Conservative support for such a measure than now seems apparent.
Mr. Straw:
The right hon. Gentleman is entirely correct. The importance of what he says, however, is that it is apparent that many Conservative Members here and in another place support incorporation in practice. Three Conservative peers spoke in favour of incorporation on Second Reading in another place.
Following John Smith's commitment to incorporate the convention, in December 1996, the Under-Secretary of State for Health, my hon. Friend the Member for Brent, South (Mr. Boateng), and I published a consultation document entitled "Bringing Rights Home". Many people helped us with the drafting of that document, including Lord Lester, to whom I pay tribute for his indefatigable work in bringing the issue to public attention. Many others responded helpfully to the paper, and they have continued to make their knowledge and advice available to me and my colleagues. The response to our paper convinced us that we should make incorporation a manifesto commitment.
Alongside the Bill, which had its First Reading in another place on 23 October, I published a White Paper entitled "Rights Brought Home", setting out the case for the Bill and how it would work. The Bill does not create new substantive rights, but it makes the existing convention rights more immediate and relevant. Under the Bill, all courts and tribunals will be required to have regard to these rights.
Having decided that we should incorporate the convention, the most fundamental question that we faced was how to do that in a manner that strengthened, and did not undermine, the sovereignty of Parliament. Some had argued that the courts should have power to set aside primary legislation, whether past or future, on the ground of incompatibility with the convention. That is a feature of many, though by no means all, government systems with a basic law enshrined in a written constitution. It is also true that, under the European Communities Act 1972, enacted by the then Conservative Government, European law with direct effect automatically takes precedence over our domestic law and Parliament, whatever Parliament wants to do otherwise.
That is not the road that we are going down. The Bill, important though it is, has the limited function of bringing the British people's rights home. It is no part of the project to call into question constitutional arrangements that have evolved in this country to make us one of the world's most stable democracies.
The sovereignty of Parliament must be paramount. By that, I mean that Parliament must be competent to make any law on any matter of its choosing. In enacting legislation, Parliament is making decisions about important matters of public policy. The authority to make those decisions derives from a democratic mandate. Members of this place possess such a mandate because they are elected, accountable and representative.
To allow the courts to set aside Acts of Parliament would confer on the judiciary a power that it does not possess, and which could draw it into serious conflict with Parliament. As the Lord Chief Justice said on Second Reading in another place, the courts and the senior judiciary do not want such a power, and we believe that the people do not wish the judiciary to have it.
Although the Bill does not allow the courts to set aside Acts of Parliament, it will nevertheless have an impact on the way in which legislation is drafted, interpreted and applied, and it will put the issues squarely to the Government and Parliament for future consideration. It is important to ensure that, for their part, the Government and Parliament can respond quickly.
In the normal way, primary legislation can be amended only by further primary legislation. As we all know--in normal circumstances, this is entirely correct--that can take a long time. One of the consequences of not having a special procedure to remedy defects in legislation is a degree of paralysis. Until now, the remedy has been through the Strasbourg Court. The best example I can give, which should command the House's attention, is the decision almost two years ago of the European Court in Strasbourg in the Chahal case.
Chahal had been detained in prison by direction of the Secretary of State because it was considered that his presence in this country was not conducive to the public good, on national security grounds. The then Home Secretary's right to make that decision without Chahal having a right of independent appeal was challenged. The matter was fought all the way to the Court in Strasbourg, which found in favour of Chahal, who then had to be released from prison.
There was no provision, as in this Bill, for the law to continue in force unless and until it was corrected. Someone whom the previous Home Secretary had decided, on the best evidence, should be excluded from this country, on the basis that his presence here was not conducive to the public good, on national security grounds, went free. Meanwhile, it was impossible for my predecessor, and it remains impossible for me, to exercise the powers under the Immigration Act 1971 to exclude anyone from this country on national security grounds.
"It is language which echoes . . . down the corridors of history. It goes deep into our history and as far back as Magna Carta."
16 Feb 1998 : Column 769
The hon. and learned Gentleman also said:
he was referring to the convention--
"If anybody suggests that these"--
"are foreign laws which are foreign to our minds and spirits, I suggest that he has not read the convention's articles."--[Official Report, 6 February 1987; Vol. 109, c. 1224.]
The baton then passed to the Liberal Democrat peer, Lord Lester of Herne Hill, who introduced two Bills on incorporation in 1994 and 1996. None of those attempts bore fruit, but they highlighted the growing consensus for change.
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