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Mr. Hogg: My hon. Friend did describe it.

Mr. Heald: The question is the effect on domestic jurisdiction of incorporating such vague principles. My view--like Lord McCluskey's--is that it would be bad for our law and our tradition in the courts of England and Wales.

Mr. Bercow: My hon. Friend is advancing a powerful argument. Does he agree that, in contemplating the fears that he has expressed, it is not necessary for Committee members to gaze into the crystal ball, when we can already for ourselves read the book? Is it not the case that--precisely as a result of the ambiguity of existing European law, of the European convention and of European treaties--much political rancour within and between member states of the European Union has resulted? The precise fear that he has expressed has already been justified and vindicated by the train of events that have occurred over many years.

Mr. Heald: There is a trade-off between the important declaratory effect of the convention itself and the price that one pays for it, which is an element of--almost certainly political--interference in the affairs of the countries that sign the convention. I accept that that is a proper concern for my hon. Friend.

The Minister tried to allay my fears about the use of the word "must" in clause 2, which would be changed by amendment No. 4. If one accepts the argument made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), which I have described as the contrary argument--that our judges should decide these matters--how does one achieve the type of benefits described by my right hon. and learned Friend: our judges being able to consider the convention in the light of the circumstances within the country in which they exercise their discretion--England and

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Wales--so that they can give us the benefit of importing their wisdom to the convention and considering local circumstances?

If judges are going to be required, as the word "must" implies they will be, to take into account the judgments, decisions, declarations and advisory opinions of the European Court of Human Rights, we are going down the route of trying to achieve a sort of international jurisprudence--a uniform jurisprudence--for the convention. That is to say that the convention is not one that all countries ratify and are then able to interpret according to their own individual circumstances, but one that is introduced and results in a case in Greece determining the outcome of a case in England.

I would argue against that, if one accepts the argument advanced by my right hon. and learned Friend the Member for Sleaford and North Hykeham, which I do not, one has to say that it is important that English judges should be able to take account of English conditions when making their decisions. The mandatory quality of the word "must" is wrong--the word should be "may".

Mr. Hogg: I do not like to defend the Parliamentary Secretary, but I shall in this case. He will say, rightly, that the word "must" requires a court to take into account--have regard to--the decisions about which we have been talking, and that it would be impossible to have a situation in which the courts in Scotland and in England might or might not do so. There must be a duty on the courts to have regard, but the phrase "to have regard" does not oblige the courts to adopt. There is a difference between "having regard to" and "being bound by", and the form of words used does not require the courts to be bound by the decisions in question.

Mr. Heald: I fully appreciate my right hon. and learned Friend's point--that the fact that the courts must take account of those decisions does not mean that they have to follow the judgment. However, my point, which is much the same point as was made by the noble Lord Browne-Wilkinson, is that, in practice, there is encouragement to follow and produce a uniform jurisprudence once one has got as far as saying "must". The argument my right hon. and learned Friend deploys makes my point for me, because Scotland is a separate jurisdiction, and, once one has made the concession of saying that a factual basis in one country for legal purposes must mean that the outcome--or at least the way in which the jurisprudence is dealt with--is the same in another country, one is saying that there should be a uniform jurisprudence.

I do not accept that. The best way in which the convention could be incorporated in English law, although I do not want that to happen, would be to allow the English courts to look at the circumstances in England and apply their own judgment as to whether or not to take account of the judgments, decisions, declarations or advisory opinions of the European Court of Human Rights. What the courts will have to take account of is the wording of the convention itself, and I do not see why we

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cannot have a system in which each court in each country that has the convention can make its decisions in the light of that country's own circumstances and traditions.

Mr. Hoon: I am sure that the hon. Gentleman believes all the rhetoric he is using, but will he put it to the test by applying the same arguments to the decisions of the European Court of Justice at Luxembourg?

Mr. Heald: The Minister's point is not really valid--he laughs, but I have seen him laugh and enjoy himself many times over the years. The European Union is a form of grouping very different from that which takes in the countries that have signed the European convention on human rights--there may be parallels, but the body and the body of law are not the same.

Mr. Garnier: May I help my hon. Friend by pointing out that the Minister's point is false? Under the treaty governing the European Union, which deals with the European Court of Justice, we are obliged to subordinate our legislation to that of the decisions of the European Court of Justice, so there is no genuine parallel of the sort suggested.

Mr. Heald: I am grateful to my hon. and learned Friend for that point, which makes it game, set and match.

Mr. Leigh: May I, too, assist my hon. Friend in rebutting the attack on his arguments by our right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg)? My right hon. and learned Friend appears to be suggesting that it is better to have British judges making the decisions than to have European judges making them.

Can my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) quote the remarks made by a distinguished former Law Officer in a previous Labour Government, Lord McCluskey, who dealt precisely with that point? He started by saying that we were effectively "empowering judicial legislation", and that, in general terms, we would be giving the same power to judges here as are enjoyed by judges in the United States. He went on to make a powerful point, which answers the one made by my right hon. and learned Friend, saying:


He went on:


    "The certain aim of British judges will be to interpret the convention in the way that they think the Strasbourg Court will. Otherwise, they will be overturned in Strasbourg."--[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1267.]

Mr. Heald: That is such an eloquent statement of my point that I need not add to it.

In answer to the Minister's rather footling point, my hon. and learned Friend the Member for Harborough (Mr. Garnier) said, rightly, that there was no direct and clear parallel between the European Court of Justice and

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the European Court of Human Rights. The classic statement of that was made in the other place by the Lord Chancellor, who conceded that the United Kingdom was


    "not . . . bound . . . to follow the court's judgments in cases to which it has not been a party".--[Official Report, House of Lords, 19 January 1998; Vol. 584, c. 1271.]

That is not the case in respect of the European Court of Justice, and I am surprised that the Minister, with all his years of learning in the law, was not aware of that.

Mr. Hogg: I am sorry to speak again--although this is Committee, so one is entitled to do so--but I should like to respond to what my hon. Friend the Member for Gainsborough (Mr. Leigh) said. His analysis of the role of the courts in this country runs something like this: the courts in the United Kingdom will interpret the convention in the way they think that the court in Strasbourg will interpret it; and therefore no benefit will flow from having brought the convention back to this country. That is his position, and it is one that deserves serious attention, because it is advanced by my hon. Friend and supported by others.

I do not agree with that position, because the doctrine of margin of appreciation means that the Strasbourg court will itself place great weight on the interpretation that the courts in this country place on the language of the convention. Therefore, the effect of bringing the convention back to the United Kingdom will be to give the courts of this country an important--indeed, paramount--role in the interpretation of the convention in so far as it bites on circumstances in this country.

It is a mistake to think that the courts in this country will simply seek to adopt what they deem would have been the ultimate decision made in Strasbourg, had the Strasbourg court determined the matter in the first instance. Therefore, on that point, I disagree profoundly with my hon. Friend the Member for Gainsborough.


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