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6.30 pm

Mr. Clappison: This has been a very interesting and useful debate, on an important subject that is well worth exploring. I shall deal with a few of the points raised by my hon. Friends.

My hon. Friend the Member for Maidenhead (Mrs. May) made a very important point about the effect of decisions taken some time ago, and whether equal weight should be given to them. It is common sense that we should not be bound too much by practices of the past.

Although my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) made certain technical points about the amendments, he agreed with the thrust of what we are seeking to do and the issues that we are trying to explore.

My hon. Friend the Member for Gainsborough (Mr. Leigh) made some very important points arising from his general concern about the approach of the European court and his wish to see a similarly cautious approach following incorporation.

The Minister was not entirely correct to suggest that European Court jurisprudence will be the same following incorporation. The courts have decided in several cases that they cannot take jurisprudence into account as though it had already been incorporated into our law. In the fairly recent Brind case, as well as many others, the higher

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courts have made that explicit. They can use jurisprudence as an aid to interpretation, because they have taken the view that Parliament would not want to legislate inconsistently with the convention, but they have not taken the view that the position now is the same as it would be following incorporation should we eventually decide to incorporate the convention.

My hon. Friend the Member for Solihull (Mr. Taylor) made an important speech, which I enjoyed. His remarks were the antidote to the comments of all those who speak about bringing rights home--as though they had ever left this place. This Parliament is the guarantor of our rights, and we have faith in its record as the defender of our liberties.

Without wishing to be prejudiced against the European convention on human rights, the mere fact that a document contains rights and describes itself as a Bill of Rights or a written guarantee of rights is, on historical evidence, no guarantee of those rights. The other day I read a document that contained a very fine statement of human rights. It guaranteed, it said, freedom of speech, freedom of movement and freedom of thought and conscience. Then I saw that it was the constitution of the Soviet Union of 1936. I do not think that any of us would judge that as the fountainhead of human rights.

I listened carefully to the Minister. He has taken the debate on the words "must take into account" a little further since it was discussed in the other place. He began by saying that there was no difference between our amendments and what is in the Bill, but then said that the amendments were technically defective. There is a slight contradiction in that. None the less, we got out of the Minister in the end the measure of flexibility for which we have been looking.

It has been our objective all along to try to ascertain just how flexible the Government are prepared to allow our courts to be through the use of the term "must take in account". Since the matter has been taken a little further, I do not propose to press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hoon: I beg to move amendment No. 119, in page 2, line 18, leave out 'Lord Advocate or'.

The Second Deputy Chairman: With this, it will be convenient to discuss Government amendments Nos. 126 and 127.

Mr. Hoon: The amendments are purely technical, arising out of the Scotland Bill and the transfer of powers to the Scottish Executive when it is established. I shall try to explain the matter as briefly as I can.

The Scotland Bill will provide for any powers that the Lord Advocate has to make subordinate legislation to be transferred either to Scottish Ministers or to the Secretary of State for Scotland, depending on whether they relate to devolved or reserved matters. Those include the power to make procedural rules relating to tribunals, which is referred to in clauses 2(3)(a) and 7(11)(b) of the Human Rights Bill. The effect of the technical amendments is to remove references to the Lord Advocate in those clauses, and therefore to pave the way for the transfer of powers that will take place when the Scottish Executive comes into being.

Mr. Clappison: I appreciate that the amendments are technical. The Minister has explained that references to

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the Lord Advocate concerning the rule-making power are to be omitted because they are contingent on devolution in Scotland. Will he assist the Committee by telling us who will end up with that rule-making power following these technical amendments?

Mr. Hoon: That will clearly depend on whether the matters are devolved or reserved. The Scotland Bill clearly indicates which are which. Amendments to the Human Rights Bill are necessary in order to ensure that, depending on whether the matters are reserved or devolved, they go in the appropriate direction.

Mr. Grieve: That is not quite right--is it? Is not the reality that the Government have not sorted out where the powers are to lie under the devolved legislation? The Scotland Bill does not make it clear where some of the powers will reside. I thought that that was unfinished business.

Mr. Hoon: The Scottish legislation provides that the Lord Advocate and the Solicitor-General for Scotland will cease to be members of the United Kingdom Government, and become members of the Scottish Executive. It is therefore necessary, in the context of references to the Lord Advocate, to ensure that the powers enjoyed are either exercised in relation to reserved matters by the Secretary of State for Scotland or such other appropriate Minister as he or she should ultimately designate, or dealt with as devolved matters through the Scottish Executive.

Mr. Clappison: If the Minister is saying that the powers will be either devolved or reserved, will he tell us which the Government wish them to be?

Mr. Hoon: It is not a matter for the Government to wish or desire. The Scottish legislation specifies what is devolved and what is reserved. The amendments are purely consequential on, and, in effect, tidy up, matters that have arisen from that legislation.

Amendment agreed to.

Amendment made: No. 137, in page 2, leave out lines 22 to 35.--[Mr. Hoon.]

Question proposed, That the clause, as amended, stand part of the Bill.

Mr. Clappison: I should like to highlight a point that I made in a brief intervention on my hon. Friend the Member for North-East Hertfordshire (Mr. Heald). We, and therefore the judges, are entering new territory. It is important that we spend time getting this right, and recognise the difficulties that judges will face in interpreting the European legislation and how it will mean a change in the judicial way of thinking. In the course of debates on clause 2, we have tried to create a partnership between judges and Parliament, of which it is important for us to keep sight. We shall return to the theme.

Mrs. May: I should like to refer to debates on the first allotted day in Committee, which relate to clause 2 and amendment No. 137. I hope that the Minister will reiterate that the Government have taken on board the concerns expressed by my hon. Friend the Member for Gainsborough (Mr. Leigh) and others on the extent to which the concerns of the Churches should be taken

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into account in the context of the Bill. A long debate in the other place focused on whether, in taking into account various aspects of decisions in clause 2, the Bill should also require the issue of religious faith to be taken into account.

The Home Secretary made it clear that the Government were very alive to the concerns that the Churches had expressed. It is important that we do not allow the debate on clause stand part to pass without asking the Government to reiterate their assurance. The Churches are greatly concerned about the impact of the Bill. I hope that the Minister will be able to assure us again.

Mr. Hoon: I am delighted to give the Committee that assurance, in response to the hon. Member for Maidenhead (Mrs. May). My right hon. Friend the Home Secretary set out precisely and very clearly the Government's position during debates on clause 1. I am entirely happy to endorse it.

Question put and agreed to.

Clause 2, as amended, ordered to stand part of the Bill.

Clause 3

Legislation

Mr. Clappison: I beg to move amendment No. 9, in page 2, line 37, leave out 'possible' and insert 'reasonable'.

The Second Deputy Chairman: With this, it will be convenient to discuss the following: Amendment No. 13, in page 2, line 38, after 'legislation', insert 'where ambiguous'.

Amendment No. 14, in page 2, line 38, leave out 'read and given effect' and insert 'interpreted'.

Amendment No. 101, in page 2, line 38, after 'way', insert


'which reflects the intentions of Parliament and'.

Amendment No. 26, in clause 6, page 4, line 13, after 'cannot', insert 'reasonably'.

New clause 8--Margin of appreciation--


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