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Mrs. Theresa May (Maidenhead): Unlike, I suspect, the majority of hon. Members present, I am no lawyer, so terms such as "margin of appreciation" and legal terms will not trip easily off my tongue.

As my hon. Friend the Member for Hertsmere (Mr. Clappison) made clear, this is an important issue, concerning the relationship between the jurisprudence of the court in Strasbourg and the position of the courts in the UK, and the extent to which our courts have flexibility in interpreting that jurisprudence in applying decisions in the UK. That is obviously relevant to us all.

I suspect that the Minister, in his response, will refer to the fact that we have approached the matter from two different angles in the debate in the other place and in this debate. Our approach is entirely reasonable, because we

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are trying to tease out from the Government the degree of flexibility that they intend UK courts to have. In response to the amendment moved by the shadow Lord Chancellor in the other place, the Lord Chancellor made statements about the Government's intentions. His remarks suggest that the Government's position is perhaps closer to our amendments than the Minister's intervention implied. It will be interesting to see whether the Government are willing to accept these amendments, because they put into effect the intention of the Lord Chancellor's words.

The Lord Chancellor said in the debate in the other place:


Those remarks reflect the comments made by my hon. Friend the Member for Hertsmere and suggest that the Government intend to provide the flexibility proposed in amendments Nos. 4, 5, 6 and 7.

Amendment No. 7 is particularly relevant, because it deals with clause 2, which provides that the courts must take into account any judgment or decision "whenever made or given". The Lord Chancellor's remarks make it clear that it would be inappropriate to suggest that decisions taken a considerable time ago are of relevance today. Amendment No. 7, which would remove the phrase "whenever made or given", would put his remarks into effect so that courts would not have to take account of past decisions regardless of their relevance.

Mr. Hoon: Is not that precisely what the straightforward English expression "take into account" means?

Mrs. May: We have tabled these amendments to find out what the Government mean by the phrase "take into account". By providing that these issues should be taken into account, the Government are placing a greater emphasis on the courts following those rules and judgments than they intend. I seek from the Minister a clearer definition of "take into account".

We should consider amendment No. 7, especially in the light of the Lord Chancellor's comments. It would give his remarks and the Government's intentions immediate effect. If the Government accept any of the amendments, I hope that they will accept amendment No. 7.

Other provisions of clause 2(1) are also of concern. Amendment No. 6 deals with the opinions and decisions of the commission and the Committee of Ministers. If there is to be flexibility, the courts should not be required to take into account or to have regard to opinions. They are merely opinions of the commission and have not yet become judgments or decisions. Our amendments are about the extent of the flexibility and independence of courts in this country to be able to interpret the convention. The courts should not be required to take into account matters that have not yet been decided.

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5.15 pm

My hon. Friend the Member for Hertsmere dealt most ably with amendments No. 4 and 5. We look forward to hearing the Government's interpretation of those issues. Notwithstanding the Lord Chancellor's comments, the requirement that these matters "must" be taken into account rather than "may" be taken into account, regardless of whether a decision has been made or whether an opinion has become a decision, implies a degree of inflexibility. The Government's pronouncements on the issue suggest that that is not their intention.

I hope that the Minister will consider our amendments as sympathetic to the Government's stated intentions. They try to improve the wording of the Bill, to give greater effect to the Government's intentions. The purpose of these important amendments is to tease from the Government clarification of their intentions with regard to the flexibility of the courts. I support the amendments, because they would provide the flexibility that the Government intend.

Mr. Douglas Hogg (Sleaford and North Hykeham): I support the amendments. It is entirely right that the courts should have flexibility when taking into account or having regard to the judgments and opinions described in clause 2. It is important that we should make it plain that the courts are not bound--that is to say, not obliged--to implement decisions made in other jurisdictions, previous decisions of the court or the opinions of the commission. I believe that it is the Minister's intention that clause 2 should not impose on the courts of the United Kingdom an obligation to be bound by such judgment, decision or opinion. It would be extremely helpful if he would make that wholly plain. The purpose of the amendments ably moved by my hon. Friend the Member for Hertsmere (Mr. Clappison) is to give the Minister an opportunity to do that.

I have no objection to the word "must", but I do not particularly wish to see the word "may" incorporated in the legislation. In this context, it is right that the courts of the United Kingdom should take into account the stated decisions and opinions, although it is for the courts to determine their relevance and appropriate weight.

I dissent from the Government's proposal to give equality of weight to the judgment of the European Court and the opinion or decision of the commission and the decision of the Committee of Ministers. A difference of weight should be given to the judgment of the European Court on the one hand and to the opinions and decisions of the commission and the Committee of Ministers on the other. The problem with the drafting is that no distinction is made in the Bill, and I regret that. The Bill gives all decisions equal weight, and I fancy that that is a mistake.

This has been a useful probing debate, because the Government can make wholly plain what I believe to be their intention: that the courts are not bound by the decisions and opinions referred to in the Bill. I hope that the Minister will say just that.

Mr. Dominic Grieve (Beaconsfield): I am happy to participate, I hope reasonably briefly, in the debate.

Having read clause 2 a number of times reasonably carefully, I have little to disagree with. The difficulty, and the reason why my hon. Friend the Member for Hertsmere

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(Mr. Clappison) has properly proposed probing amendments, is that there is bound to be anxiety about the way in which the courts will operate in practice.

My understanding of what is intended--the Minister will doubtless disagree with me if I have got it wrong--is that the wording in clause 2 is designed to give a court or a tribunal discretion in applying the various areas of the decision making--the jurisprudence--of the European Court of Human Rights, or of other bodies similar to that of an English court applying the decision making of other common law jurisdictions. That is how I interpret it. Therefore, there would be wide discretion, and, I would also infer, the operation of the margin of appreciation as to whether such decisions are relevant to the particular circumstances, which the European Court has to determine in so far as they relate to the United Kingdom.

Clearly, the anxiety is whether the wording is correct and will provide that measure of discretion. I share the view of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) that the use of the word "must" as opposed to the word "may" is perfectly appropriate in particular circumstances to enable the court to do that.

I have further anxiety about two points. I do not want to exaggerate their effects, but I shall probe the Minister about the intention behind the inclusion of two specific references. First, the words "whenever made or given" appear in clause 2(1)(d). I infer that that is surplusage: the words are unnecessary because, by their very nature, decisions by bodies referred to in clause 2(1)(a), (b), (c) and (d) will be relevant, irrespective of when they were made or given, but the Minister may be able to persuade me otherwise.

Applying sensible English common law principles, less weight will be attached to a decision that is old, pertains to matters that have been passed by the march of events and has been doubted somewhere else than to a more recent decision. Will the Minister clarify why those words were specifically included? There may have been a desire that people should not think that only decisions made subsequent to the passage of the Bill would be affected. That may be the answer, and I should be interested to hear from him on that point.

The other issue that puzzles me a little is the way in which different decision-making bodies are lumped together in clause 2(1)(a), (b), (c) and (d). The oddest is subsection (1)(d), which states:


As I understand it, article 46 provides a mechanism by which extra structures can be added to the convention. It states:


    "Any of the High Contracting Parties may at any time declare that it recognises as compulsory ipso facto and without special agreement, the jurisdiction of the Court in all matters concerning the interpretation and application of the present Convention.


    The declarations referred to above may be made unconditionally or on condition of reciprocity".

That does not have much to do with the development of jurisprudence. Has it not rather more to do with the extent to which the international obligations of the parties may be extended? Therefore, I find it odd that that should appear amid what otherwise appear to be matters of jurisprudence. The Minister may be able to answer that point.

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Having thought about the different weight being given to a judgment or an opinion or a decision of the commission, I am not as concerned as some of my hon. Friends. The key issue in clause 2 is the meaning of the words "must take into account". The clause revolves around that. It has been suggested that the words "have regard to" might be better, and, as a term of art bandied around in the courts, they would trip off the tongues of lawyers rather more easily than "taking into account". Having thought about it carefully, I consider that there is no difference between them.

It is worth bearing in mind, however, that Law Lords continually say that they or the court should "have regard to" something, so a wise draftsman might have regard to those words. I simply invite the Minister to say whether that point has been considered. Save for that, clause 2 should enable the courts to have the necessary discretion to apply the convention while not being fettered slavishly by it. I hope that he will confirm the generality of what I have said. Provided that that can be achieved, clause 2 as drafted, or even if the amendments were accepted, would still do the same job.


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