Previous SectionIndexHome Page

Mr. Heald: In his explanation, the hon. Gentleman seemed to argue that, if the factual basis of a case were the same in Greece as in Northern Ireland, Wales, Scotland or England, the outcome would have to be the same, on the basis of his present drafting. Is that really the situation?

Mr. Hoon: I did not say that, and the hon. Gentleman knows full well that I did not say that. I congratulate him on his ingenuity. What I said was that the Opposition amendment would lead to a situation where it would be possible for a court in one part of the UK to apply the jurisprudence of the Strasbourg court and a court in another part not to take it into account, producing different results on the same facts within the UK. That cannot be satisfactory. It is important that courts are consistent in the material and information that they take into account. That is why the Opposition amendment is defective, and it is clear from comments by certain Conservative Members that they recognise that fact.

Amendment No. 5 would require the court or tribunal to "have regard to" the convention jurisprudence, rather than take it into account. Like the hon. Member for Beaconsfield (Mr. Grieve), I do not think that there is any significant difference between "have regard to" and "take into account". I struggled hard, as he did, to see what the purpose of the amendment was. Like him, I have failed to find any distinction. The latter phrase is in the Bill, and I do not see why it needs to be changed.

Amendment No. 6 would retain the reference to the jurisprudence of the European Court of Human Rights, but remove the reference to the opinions and decisions of the European Commission of Human Rights and the Committee of Ministers. I believe that the domestic courts should, when determining questions in connection with

3 Jun 1998 : Column 404

the convention of rights, be required to take into account all relevant decisions of the Strasbourg authorities, rather than only those of the European Court of Human Rights.

Mr. Hogg: Will the hon. Gentleman be good enough to tell the Committee the extent to which the commission and the Committee of Ministers hear argument before expressing an opinion or making a decision? I simply do not know. Therefore, I do not know to what extent the decision results from the process of argument and debate.

Mr. Hoon: It is impossible to give a precise answer to that question because, clearly, it depends on the circumstances of the particular case. An application to the commission, which first hears the application, may be so manifestly ill founded that it can be dealt with immediately, without a formal hearing. On the other hand, for those cases where clearly there is a substantial issue, there is a full hearing at present before the commission. Indeed, if the hon. Gentleman were to walk into its courtroom, he would find that it looks very much like a court and like the European Court of Human Rights. As he may know, that is one of the reasons why, after the reform of the process of the European Court of Human Rights, there will be a unified and single court from 1 November this year. Therefore, depending on the circumstances, there will be thorough argument before the commission. Indeed, its decision may look very much like a decision of the court.

It is important to recognise that many cases are settled on the basis of an opinion of the commission and do not necessarily proceed to the court, but that opinion may nevertheless be extremely relevant to the interpretation of the convention by the domestic courts. Perhaps more important still, the commission is responsible currently for decisions on the basic admissibility of complaints, including whether they are manifestly ill founded, as I have mentioned. That is an important part of the body of Strasbourg decisions and one that, on any view, it is right for our courts to take into account.

Amendment No. 7 would remove the reference to judgments "whenever made or given".

Mr. Grieve: Before the hon. Gentleman moves on, let me say that I have no difficulty with his points about the commission and its role, but I found it a little more difficult to understand why the Committee of Ministers--particularly the reference to its decisions under article 46--is slotted in at that point. He may not know the answer. There may be an obvious answer that I have completely missed, but I should be grateful to know why it was thought that that point--where one is dealing with jurisprudence, as I understand it, and previous decision making--is the appropriate place to put that reference.

Mr. Hoon: The obvious answer may be that the hon. Gentleman has missed the amendment to article 46 in protocol 11. Essentially, article 46 requires the high contracting parties, the signatory member states, to undertake to abide by final judgments in the court in any case to which they are parties. Therefore, in that sense, the decision of the Committee of Ministers is on all fours with decisions of the court. That is why that particular provision appears in its place in the Bill.

3 Jun 1998 : Column 405

I was dealing with the point that the hon. Member for Beaconsfield made about amendment No. 7 and the reason for the inclusion of the words "whenever made or given". That phrase makes it clear that the domestic courts are to take into account not only existing jurisprudence of the convention institutions, but their future jurisprudence, which in due course will be influenced by the contribution of our courts. Removing the phrase would serve only to cast doubt on the duty to take account of future Strasbourg jurisprudence. I think that, during his debate with himself, he reached that conclusion in any event, but, for the avoidance of any doubt, I make that clear.

Having explained to Opposition Members the weakness of the various amendments that have been tabled, I hope that they will be willing to withdraw them.

6 pm

Mr. John M. Taylor (Solihull): I cannot claim to speak with any of the legal authority of so many of my distinguished right hon. and hon. Friends. I was no more than a humble high street solicitor, and the extent to which I have practised in human rights in 22 years is almost exactly nil. My interest in the debate was engaged by the remarks of my hon. Friend the Member for Gainsborough (Mr. Leigh), who began to develop his anxieties--which I share--about the distinction that we have sustained in this country between the role of Parliament and the role of the judges.

This is a political judgment--I shall not try to follow the lawyers in their legal arguments. The argument of my hon. Friend the Member for Gainsborough gave rise to a political question--who appoints the judges? In this country, we have the anomalous but rather magnificent position of the Lord Chancellor--splendidly ensconced as he is. He is the complete denial of the separation of powers and the rule of law, because he is, at the same time, a member of the legislature, of the Executive and of the judiciary. His record in appointing judges has been rather good.

As my hon. Friend the Member for Gainsborough said, what happens if we begin to assume forms and practices not unlike those in the United States of America? We all know what happens in terms of appointments to the Supreme Court, which are made by senators--for all practical purposes--who are divided on party lines. They examine the record of the candidate, not least his personal life--it seems to be an automatic feature of American politics that someone's private life is thoroughly turned over--and his previous political positions.

During the presidency of Lyndon Baines Johnson, there was a suggestion that a man by the name of Abe Fortas be appointed to the Supreme Court, which had a vacancy in its fixed number of judges. He had developed a reputation as a liberal judge in a more junior forum, and the conservatives on Capitol hill began to argue against his appointment. In particular, they reckoned that he had a liberal record on cinema licensing and that he had let all sorts of things go through. They arranged to get all the films that Abe Fortas had permitted as film censor, and they had a constant show of the films approved by the liberal Abe Fortas. It was known as the Abe Fortas film festival. That is a fine level to which to reduce the appointment of judges.

Mr. Leigh: My hon. Friend is making a powerful point. If we go down that route, we may end up with a system

3 Jun 1998 : Column 406

similar to that of America where, from the early 19th century, the judges have claimed the last word on the constitution. Effectively, that means that, on important areas such as abortion, contraception and capital punishment, the Supreme Court and the judges, not Congress, make the law. Indeed, the Supreme Court strikes down Congress on those matters. This country may legitimise the politicisation of our judiciary, which we believe would be fatal to the way in which our constitution has developed over three or four centuries.

Mr. Taylor: I do not think that I could have put it as well as that. I am extremely grateful to my hon. Friend for that intervention and for adding that lustre to what will become an important record of this significant debate.

Mr. Bercow: I agree with virtually everything that my hon. Friend has said, as I ordinarily do. The only exception is that, in his references to the Lord Chancellor, he was showing excessive generosity to what might be regarded by some members of the Committee as an undeserving cause. Further to the observation of my hon. Friend the Member for Gainsborough (Mr. Leigh), does my hon. Friend agree that the effect of this increasing arrogation of powers to the courts and the simultaneous stripping away of the powers of the elected legislature threaten to weaken the umbilical cord that has traditionally linked the Government of this country with the people who elect the Government?

Next Section

IndexHome Page