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'In any proceedings in which a court is considering the question of whether primary or subordinate legislation is compatible with a Convention Right, full regard shall be had to the margin of appreciation accorded to a member state in relation to its statute or common law.'.

Mr. Clappison: The amendments are exploratory. Clause 3 deals with the way in which United Kingdom courts are to interpret legislation following incorporation. That is an important issue, and we want to ensure that the clearly expressed will of Parliament is heeded if incorporation takes place.

Amendment No. 13 explores that issue. We are conscious of the fact that it reflects a current pre-incorporation practice of the courts, in that the convention can be relied on as a guide to the interpretation of Acts of Parliament where the domestic court finds that the relevant statutory provision is ambiguous. That rests

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on the basis that Parliament can be presumed to have legislated in a manner consistent with Britain's treaty obligations.

Next we wish to explore how the courts are to go about what is required of them under clause 4. Earlier this afternoon, we were told that the Government were keen on plain English and consistency in language, and that words had to be given their ordinary meanings, so we were slightly intrigued to see the term "read and given effect" in clause 3. We were even more intrigued when we looked at the heading--"Interpretation of legislation"--and we wondered why the body of the clause did not simply use the term "interpreted" rather than the term "read and given effect". Is there any significance in the difference? We look to the Government to tell us what, if anything, is meant by it.

Amendment No. 101 explores the question of interpreting legislation in a way that reflects the intentions of Parliament. We think that that is important. The other amendments in the group are similar. We want to ensure that the will of Parliament is not overridden in inappropriate circumstances. If the courts find that legislation is incompatible, the proper course under the Bill is for a declaration of incompatibility to be made.

Although new clause 8 is important, I hope that the Committee will forgive me if I speak only briefly about it, because we have already been through the arguments about the margin of appreciation, which we regard as an important doctrine. We want to put those words in the Bill because we want that doctrine to be reflected in our courts when they apply the European convention.

The amendments explore important issues, and we look to the Government for a constructive and clear response.

Mrs. May: I shall concentrate my brief comments on amendment No. 101 and new clause 8, because both are at the heart of the concerns expressed by some of my right hon. and hon. Friends in our earlier debates, both on the first day in Committee and today, about the relationship between the courts and Parliament.

The importance of that relationship was ably described by my hon. Friend the Member for Solihull (Mr. Taylor), who, in an earlier debate, talked about the way in which it has stood the test of time and maintained human rights in this country for many hundreds of years. We should retain that relationship, and there is a genuine concern about the extent to which the implications of the Bill will strike at its heart, and at the distinction of powers between the judiciary and Parliament.

As my hon. Friend the Member for Hertsmere (Mr. Clappison) said in his summing up of the first group of amendments tabled to clause 2, Parliament has been the defender and protector of human rights in this country for many years--a position that has stood the test of time--yet there is concern about the Bill's impact on the role of Parliament as the protector of human rights in the United Kingdom.

The Government have stated their position several times--that they do not intend that relationship to be usurped and that they respect the role of Parliament as it has been described. The intention of amendment No. 101 is to make the role of Parliament clearer on the face of

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the Bill and to draw attention to it. It would insert words into clause 3(1) so that it would read:


    "primary legislation and subordinate legislation must be read and given effect in a way which reflects the intentions of Parliament",

as well as


    "in a way which is compatible with the Convention rights."

6.45 pm

It is important to explore that issue with the Government and to ensure that their intentions are clear. We reiterate the importance of the requirement that the will and intentions of Parliament should be taken into account. The Bill will give more powers to the judiciary in this country, and it is important that we continue to explore the relationship that will exist after enactment, assuming that the Bill is passed--it does not need the power of Mystic Meg to guess that it will be passed.

The intentions of Parliament should be referred to in the Bill. If I understand the notes on clauses correctly, the Government have conceded that


Amendment No. 101, like several of our other amendments, would put words in the Bill to give effect to the intention that the Government have expressed.

Many references have been made to the concept of the margin of appreciation. New clause 8 would specify on the face of the Bill that


I believe that the importance of that concept is accepted on both sides of the Chamber, but, as the Bill stands, it is not expressly referred to or explicitly stated.

The European Court of Human Rights has already allowed for the concept of the margin of appreciation, to respect the sovereignty of each nation state that is signatory to the convention. If new clause 8 were added to the Bill, rather than our simply accepting that that practice has occurred over the years, the concept would appear explicitly in the Bill. That would be useful in drawing to the attention of the United Kingdom courts that issue and the importance that Parliament attaches to it--an attitude that is shared and respected throughout the House of Commons. I therefore hope that the Government will look favourably on new clause 8.

Mr. David Maclean (Penrith and The Border): I wish to speak briefly on this group of amendments. I am deeply concerned about the proposal that the judiciary should have the right to strike down subordinate legislation without any reference to Parliament. The Committee will be fed up with hearing me say, as I now do for the third time in two days, that the Home Secretary is a reasonable man--

The Second Deputy Chairman: Order. I think that the right hon. Gentleman is on the wrong group of amendments. The amendment to which he refers comes later.

Mr. Maclean: I beg your pardon, Mr. Lord. I wished to talk about amendment No. 17.

Mr. Hogg: The use in the clause of the word "possible" causes me some concern, as it may encourage the courts

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to give an unduly artificial interpretation to statutory language. I support amendment No. 9, as it substitutes "reasonable" for "possible".

An argument that may appeal to the Home Secretary is that, once one has started in one statutory context to give language an artificial meaning, there is a danger that it could serve as a precedent and be carried over into other interpretations in a different context: a word that has a particular meaning in one statute may serve as a precedent for the interpretation of that word in a different context. I prefer the word "reasonable" to "possible", as suggested in the amendment tabled by my hon. Friend the Member for Hertsmere (Mr. Clappison). A declaration of incompatibility is the proper remedy if the statute cannot properly and reasonably be interpreted in a way that is compatible with the convention.

A different point arises from new clause 8, on which I shall follow from where my hon. Friend the Member for Maidenhead (Mrs. May) left off. It is clear and right that a court should be slow to depart from the decisions of a Parliament in concluding that a Parliament has derogated from convention rights--that has long been accepted in the jurisprudence of the European Court of Human Rights. I think it right that that should be specified in the Bill, as the Bill will guide the United Kingdom courts in their approach to the convention.

The statute should expressly state that the courts should have due regard to the expressions of parliamentary will, in the hope that the courts will be slow to hold that Parliament has departed and derogated from convention rights. I believe that there is an advantage in specifying in the Bill the concept of a margin of appreciation.

Mr. Paul Stinchcombe (Wellingborough): I wish to reply to some of the points made by the right hon. and learned Member for North Hykeham and Sleaford--

Mr. Hogg: Sleaford and North Hykeham.

Mr. Stinchcombe: I was close.

The points made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) were seductively made, but they were wrong in principle and dangerous in effect. Clause 3(1) and clause 6(1) are the provisions that truly give the Bill teeth--if rights are to be brought home, it will be precisely because of those provisions. Clause 3(1) states:


Paragraphs 2.7 and 2.8 of the White Paper "Rights Brought Home" make it clear that those words are intended to go beyond pre-existing law:


    "This goes beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless legislation itself is so clearly incompatible with the convention that it is impossible so to do."

It is precisely because of the opening words of the clause and their effect that convention law will be moved forward in this country in a way that I believe is desirable.


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