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The Parliamentary Secretary, Lord Chancellor's Department (Mr. Geoffrey Hoon): Such cases form part of the jurisprudence of the European convention, as the hon. Gentleman will know. I remind him that, when these matters were debated in another place, the Opposition argued that the Strasbourg jurisprudence should be binding on United Kingdom courts. Have the Opposition changed their view?

Mr. Clappison: The Minister makes a mistake by taking too partisan an approach to these matters. We are seeking to explore the margin of appreciation. I hope that he paid close attention when I made it clear that we commended the generally cautious, conservative approach of the European Court, and he will know that that has been widely recognised by commentators. We do not seek to rebel against that, but we need to explore how the Bill will require the margin of appreciation that may be taken into account in decisions by the European Court on other

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countries to be dealt with in our courts when they consider the decisions and judgments of the European Court. That is an entirely legitimate concern, and we were right to explore it in the other place and here.

I shall come shortly to some important remarks made by the Lord Chancellor. The Minister is the Lord Chancellor's spokesman, and may be able to intervene on those. We are trying to explore important arguments for being within the reach of the European Court, but not being bound too tightly by its decisions. As the Minister has fallen into the habit of drawing on what was said in the other place, let me tell him what his noble Friend said. Having given him a sneak preview of my intention to mention those remarks, let me give him a slight surprise: I rather agree with the Lord Chancellor's sentiments, although not perhaps with his oft-expressed enthusiasm for the terms in which the Bill is drafted and in which he has taken some pride.

Perhaps the Lord Chancellor's spokesman would like to pay close attention to the Lord Chancellor's words. He said:


We agree with those sentiments, but must question how well the drafting of the Bill reflects them. Juxtaposed with those sentiments, the drafting of the Bill, which we seek legitimately to explore, looks a little rum.

First, we need to explore what our courts are intended to understand by the phrase "must take into account". It was said in another place that those words would permit UK courts to depart from existing Strasbourg decisions and that, on occasion, it might be appropriate to do so and the courts might give a successful lead to Strasbourg. Those words were spoken by another Minister in the other place. We are happy with that. Indeed, it may be recalled that, in our earlier debates, my right hon. and learned Friend the shadow Attorney-General made it clear that, whatever other reservations we might have, one of the benefits of incorporation is that British judges would have an opportunity to have an input into the fashioning of convention law. That is all well and good, but the Government have not yet been sufficiently clear on what they intend by the phrase "must take into account".

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If those words are not binding--we take it that they are not--the Government must spell out more clearly the nature and extent of the circumstances in which United Kingdom courts may choose not to follow Strasbourg decisions. The Government apparently contemplate that UK courts would be permitted to depart from Strasbourg decisions when there had been no precise ruling on the matter in question. Such an example was given by the Lord Chancellor in the debate on this clause in the other

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place. What about cases in which there has been a precise ruling by Strasbourg? Do the words "must take into account" mean that UK courts must follow to the letter rulings in cases in which the court or the commission has made a judgment, decision, declaration or opinion in the relevant circumstances? Do our courts have to follow them at all?

Will the Minister say whether UK courts may depart from such decisions when there has been a precise ruling by Strasbourg? The matter was left unclear when it was debated in another place. It is important for the future and for our courts that we know the Government's position. It is all very well to say that our courts can feel free to go their own way when there is no precise ruling from Strasbourg, but what about cases when there is?

Mr. Hoon: The hon. Gentleman knows the answer to his question. The answer is clear: it is for the independent judgment of a court to resolve the issue before it. Nothing that can be said here will affect that independence. I am surprised to hear him pursue that argument, because, by doing so, he seeks to fetter that independence. If a court arrives at an apparently incorrect decision, there is the prospect of an appeal, which ultimately could end up in the court in Strasbourg. Those matters are routinely resolved before the courts every day of the year. The hon. Gentleman seeks to go into a logical cul de sac from which there is no exit.

Mr. Clappison: The Minister is making too much of the matter. I simply wish to explore what was left unclear in another place. I hope that he will give a more considered response later in view of the way in which the matter was left in the House of Lords, because it will not do as it stands. The Minister must deal with the question: what is the effect on United Kingdom courts if there is a precise ruling from Strasbourg on a matter that a UK court seeks to determine in this country?

The Minister must give a better answer than he has given so far. It is no use trying to remit the issue to the courts in a general way, by saying that we shall leave it to the courts' good judgment. The Government have already gone so far as to say that our courts need not feel bound when there is no precise ruling from Strasbourg--they went that far in another place, in a more considered response than the Minister has just given--but what about cases when there is a precise ruling? What do the words "must take into account" import in those circumstances?

I realise that the Minister is impatient to get on with the Bill, but he must give the matter a little more consideration. It is an important issue for the future. We want to guide our courts appropriately, as much as we can.

I hope that the Minister will not take my remarks as an implied attack on the European Court. As I have made clear, we welcome the cautious approach that it has often taken. However, we note a word of warning given in another place by the noble Law Lord, Lord Browne-Wilkinson, who, while praising the record to date of the European Court, said:


As that warning comes from such a source, we should be wise to take it on board.

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I move on now to amendment No. 6. Clause 2 requires United Kingdom courts in certain circumstances to take into account decisions of the commission and the Committee of Ministers. I want to explore two points. First, is it the Government's intention to require the courts to give the same weight to decisions of those bodies as to those of the European Court? Again, I make it clear that I mean no disrespect to the commission, which I appreciate is of a high calibre and carries out valuable work. However, we need to consider whether it is right in effect to give the commission parity of esteem with the European Court, as the Bill apparently does. Clause 2 puts the commission on the same footing as the court. Is that the signal that the Government mean to send out?

My second point concerns the potential problem when the European Court arrives at a different view from the commission. Under article 31, which is mentioned in clause 2(1)(b), the commission will, in a matter where it has been unable to bring the parties to a friendly settlement, draw up a report and give its opinion as to whether there has been a breach. That, of course, is standard procedure. I apprehend that subsection (1)(b) requires a United Kingdom court to take into account such an opinion even though the European Court has yet to give a view. No doubt the Minister will correct me if I am wrong.

On that basis, what will happen if the United Kingdom court takes the commission's opinion into account and the European Court, also having taken into account that opinion, comes to a different conclusion, which is not altogether unknown? That would appear to be a possibility. I assume that the Government have thought that through. Will the Minister tell us what will happen in those circumstances?

There are a number of potential dangers, and our amendments reflect our concerns. We seek a constructive and considered response from the Government. They know that the courts will in future consider carefully what is said about the Bill, and the Government owe it to the courts to get it right. If the convention is to be incorporated, we want a genuine partnership between Parliament and the courts. I shall say more about that later. If we are to do our job right by the courts, we must not leave them in a difficult and uncertain position on the relationship between European jurisprudence and the decisions that our courts must make in considering cases involving breaches of convention rights. Those are serious issues, and we look to the Government for a considered response.


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