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Mr. Oliver Heald (North-East Hertfordshire): I do not accept that there is an argument for the incorporation of the convention rights into English law, but if there were, incorporation would allow our judges to make decisions in the English context based on their interpretation of the convention. The argument continues that, if the matter proceeds to the European Court of Human Rights, at least the input of our judges will have been taken into account.

Does my hon. Friend agree that it would be extraordinary if our judges were bound by previous decisions of the European Court, the opinions and decisions of the commission and decisions by the Committee of Ministers, because one of the strongest arguments for incorporation is precisely that our judges can interpret the convention afresh?

Mr. Leigh: I presume that, if the Lord Chancellor were taking part in the debate, he would make a similar point. He would say that I do not have sufficient confidence in our judges and in the precedents that have developed over hundreds of years.

Our system is unique because our judges base their judgments on precedent, but there is no precedent in this case. We are opening a whole new area into which judges can walk--I shall not say wander, because that would be pejorative--and make new judge-made law. Under the fast-track procedure, an Order in Council may be used or the Government may decide that Parliament should accept such judgments and our constitution could be radically changed. That is why those of us who oppose incorporation are worried by the Bill.

Mr. Desmond Swayne (New Forest, West): My hon. Friend brings us back to the dilemma. Our choice is between allowing European jurisprudence to continue or,

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as the Government have said, bringing it home to our judges. My hon. Friend expressed a preference for the more conservative jurisprudence of Europe, but is he confident that that will continue? Does he accept that many of us are reluctant to accept incorporation into English law because we believe that we would be better off renouncing our accession to the convention in its entirety?

Mr. Leigh: I do not know how European jurisprudence will develop. However, judging by recent history, it has taken the view, under margin of appreciation, that these matters are best dealt with by national courts. I understand that vexatious litigants who attack Churches and other religious organisations, charities and Church schools have had the door of the European Court shut in their face. That is why I have said that of the 45 applications to Strasbourg under article 9 only five have been allowed to proceed to the court.

My original point is important. The Secretary of State for Scotland made a fundamental error when he said, "Don't worry. The convention has been around for ages, and if there had been a problem dozens of schools would have been taken to court." However the European Court is international, and such courts have always locked their doors and said that such matters are best decided by national courts. We are moving into a new and dangerous area in which we will no longer have that protection. Judges will not be bound by the traditional, conservative jurisprudence of the Strasbourg court. There will be no other court to which they can refer such matters, and they will not be able to turn away vexatious litigants. They will be unable to say, "We cannot hear your case, and it would be better dealt with by another court." They will have to hear it.

By their nature, Church organisations are not rich. People put a few pennies on the collection plate, and they do not do so to fund expensive cases at the lower court, the Court of Appeal and the House of Lords. However, some vexatious litigants are well funded; that is why we are worried.

Mr. Garnier: I take it that my hon. Friend uses the expression "vexatious litigant" in the non-legal sense. Anyone who is deemed to be such a litigant would be shut out. I presume that he means a tiresome person.

Mr. Leigh: Perhaps I should not use that term. I should have referred to organisations that have particular agendas, are well funded and contrary to the Secretary of State for Scotland's assurances, will be able to take organisations to court. I hope that, in his winding-up speech, the Minister will deal with the worries of Church organisations.

5.45 pm

Mr. Hoon: I congratulate the hon. Member for Hertsmere (Mr. Clappison) on wringing every last nuance of alleged ambiguity out of the Bill's plain, straightforward English words. He was keen on the word "flexibility". As the hon. Member for Gainsborough (Mr. Leigh) said, I sought to expose the flexibility of the Opposition in the context of their attitude here and their attitude in the other place. I need not have troubled, because much flexibility was on display in Committee.

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I am not sure whether any Opposition Member agreed with the hon. Member for Hertsmere, but I may be unkindly wrong. If I am, I apologise to the hon. Gentleman.

I shall deal with the matters that have been raised, but if any hon. Member feels that I have not done so thoroughly, I shall return to them. Clause 2(1) provides that a court or tribunal that is determining a question in connection with a convention right must take account of the relevant jurisprudence of the European Commission, the European Court of Human Rights and the Committee of Ministers whenever it was made or given. The purpose of the provision is to point our courts towards an interpretation of convention rights that is consistent with the interpretation in Strasbourg. In other words, we are bringing home the jurisprudence of the convention rights as well as the rights themselves. Amendment No. 4 would make taking those matters into account discretionary rather than mandatory.

Mr. Heald: Does the Minister agree that there are alternatives? One is to have uniform jurisprudence in this area throughout Europe, in which case the Bill as framed may suit. The other is that the United Kingdom courts can, in the circumstances of this country, make their own judgment and interpretation of the convention. Lord Browne-Wilkinson spoke about that distinction and said that uniform jurisprudence may not be in this country's best interests.

Mr. Hoon: With respect, the hon. Gentleman puts two different points. The words "take into account" have the precise meaning of his second point. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) also asked about this matter. The phrase clearly allows for Strasbourg jurisprudence not to be precisely followed but to be taken into account. That is the meaning of the English words.

Mr. Heald: The Minister chooses to stress the words "take into account", but the courts may take special account of the word "must". Does he agree that the words "must take into account" impose a heavy burden on the English courts to move towards uniform jurisprudence matching that of Strasbourg? That point was made by the noble Lord Browne-Wilkinson.

Mr. Hoon: The word "must" in this context clearly means that the courts must take into account the jurisprudence. That is what the words in English say. They do not mean that there has to be uniform jurisprudence. They mean that the courts must take the jurisprudence into account in reaching a decision.

Let me suggest what the effect of the discretionary word "may" will be. It will mean that our courts might produce, on the same set of facts, different results because some may take the jurisprudence into account and some may not. That can hardly be sensible when we are trying to promote consistency in the decision making of our courts. If we allow courts not to take into account the jurisprudence, we shall end up, on similar facts, with different results. That can hardly be satisfactory.

Mr. Hogg: I agree with much of what the Minister says, but may I probe the Government's position on this a little further? Ultimately, the Government will have in

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mind an objective. Is it their objective that, in the generality of cases, United Kingdom courts will follow the jurisprudence of the European Court and all the other decisions and opinions there stated, so that, in the generality of cases, the ways in which this country's courts interpret the convention will be shaped by the decisions made by the European jurisprudence?

Mr. Hoon: Clearly, it is important, because the UK is bound internationally by the convention's provisions, that our law should be consistent with the general provisions of the European convention. That is already the law of the UK in relation to the international position. The Government are seeking to incorporate those international obligations into our domestic law. Therefore, it is important, ultimately, that the law of the UK, as applied by UK courts, is broadly consistent with the jurisprudence of the Strasbourg court.

That is something which, if cases were pressed to their logical and ultimate conclusion, is already necessary. Having been bound internationally to satisfy the terms of the convention, there is an obligation on the UK, as a signatory state to the European convention, to translate those decisions into our domestic legislation, so there is no legal distinction between the position today and the position that will obtain once incorporation has taken place.


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